THROUGH MY EYES -- Ron Davis

Did you ask what Robin Hood and Blackbeard the pirate had in common?

Well, you probably didn’t, but I’ll answer the question anyway. They were

both thieves.

Blackbeard would have done well to have hired Robin’s publicist

because it is a pretty safe bet some of his sailors were probably poorer

than those who benefited from Robin’s largess. But, the test of whether

one is or is not a thief is not determined by who gets the money, but the

act of taking itself.

This gets me to the discussion of the emotionally explosive decision

by the California Coastal Commission barring Hearthside Homes from

building on about 140 of its 208 acres on the Bolsa Chica mesa.

I recognize the environmental importance of the mesa to the wetlands,

which are now preserved and owned by the state. I also recognize the

value of the entire Bolsa Chica mesa as open space. I concur society has

an interest in preserving the mesa.

But, as I suggested at the beginning of this column, the act of taking

is not judged by the needs and desires of the recipient, but by the act

itself. Thus, society’s interest in protecting the wetlands and creating

open space is no more of an argument to take someone’s land than Robin

Hood’s compassion for the poor.

The set-aside of 140 acres as a conservation area -- by the Coastal

Commission -- of Hearthside’s 208 acres, without just compensation,

certainly wasn’t done to benefit Hearthside. It was done to protect

wildlife, native plants and environmentally sensitive areas for society’s

benefit.

But, I’m uncomfortable buying into the dogma of the end -- a benefit

to society at the expense of Hearthside -- justifying the means -- taking

the property by requiring Hearthside to maintain the area as a

conservation area for our benefit, without compensation.

There are those in the community, who rightfully so, are emotionally

attached to preserving the mesa. I don’t quarrel with their commitment.

But, I do quarrel with their unwillingness to separate that laudable goal

from the issue of whether the state has effectively taken someone’s land

without compensation.

I won’t predict the outcome of the litigation involving this issue.

But, regardless of the legal outcome, I am convinced the Coastal

Commission has taken Hearthside’s property and should pay for it.

Hearthside should be paid for it not based on what those who have worked

so hard to save the mesa contends it’s worth, nor based on what

Hearthside contends it’s worth, but based on what a court determines the

property is worth.

There are many who contend that Hearthside has not suffered a

“taking,” and are thus not entitled to compensation because Hearthside

still holds title to the 140 acres.

I do not intend to equate the act of the Coastal Commission to those

of Robin Hood or Blackbeard. I do not view the act of the commission as a

theft but merely a taking. (There are distinctions between civil and

criminal law that apply which are not essential to this discussion.)

Civilly speaking, one can take someone’s property by physically taking

it, thus depriving the owner of the economic value associated with

ownership, or by taking action, such as zoning, which results in a loss

of the economic benefit associated with ownership. For illustration

purposes, if someone physically takes someone’s delivery truck, then the

owner doesn’t have the use of the truck with which to make deliveries. On

the other hand, the same result can be accomplished without ever

physically taking the truck by putting sugar in the gas tank and blowing

out all of the tires.

To suggest in the latter case that the truck owner isn’t damaged to

the same extent as when the truck is physically taken, because the truck

owner still owns the truck, is an intellectual absurdity.

Compelling Hearthside to maintain 140 acres as a conservation area,

for our benefit not the company’s, is just as much a taking as if the

state had physically taken the land and made it the same conservation

area.

An indirect taking, which, while very unpopular to contend, requires

that Hearthside be fairly compensated based on the determination of a

neutral third party.

* RON DAVIS is a private attorney who lives in Huntington Beach. He

can be reached by e-mail at o7 [email protected]