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J The Honorable Pcte Hoffmann and K. Angel Pilago, Co-Chairs, and Members Committee on Planning ~ May ] 7, 2005 Page 2 owner's fundamental right to exclude others. The United States Supreme Court has opined, in the context of mandatory lateral shoreline access, that such a requirement would be an unconstitutional taking of private property for public use without just compensation, in violation of the I•'ifth and h ourteenth j Amendments of the United Stales Constitution. See Na[lan v. California Coastal Comm'n, 483 U. S. 825, 83]-32 (1987), citing Loretto v. TedeprompterManhattan CATV Corp., 458 U.S. 419, 433 (1979). Addnionally, Rill 80 provides no showing that the ban on gated or limited entry "substantially advan~eti legitimate state interests," .ree Agins v. Tiburon, 447 U.S. 255, 260 (1980), and accordingly the bill "utterly Fails to further (and end advanced as the justification." This lack of "essential noxus" occurs because the govemmen[ would be exercising its power to prohibit a development amenity within the pnvate landowner's right to exclude others from the property. Instead, the landowner would be required to create new public access where none existed before, and where the development did not per se create the need for the access. As the Supreme Court observed, this is "an out-and-out plan of extortion"; if govemmern "wants an easement tt must pay for it." See Nollan, 483 U.S. at 837, 842. We cannot support legislation that would require private property owners to dedicate private roads for public access without compensation. If that is the intent, the appropriate means to secure such public access would be for the County to accept the roads by way of dedication, thereby relieving the owners of the responsibility and expense of maintenance and the liability for public use of the improvements. We therei--ore recommend that you hold Bill 80 in its present form. Thank you for the opportunity to express our views on this matter. I I i I