Get a Building Permit, Get Disenfranchised: Business as Usual in California

Via Ilya Somin at the Volokh Conspiracy, this bit of officious ridiculousness from California being challenged in court this week before the Ninth Circuit Court of Appeals by the Pacific Legal Foundation. From an account by Timothy Sandefur, who will be arguing the case for PLF, at the PLF blog:

Griswold v. City of Carlsbad….is an astonishing case in which city officials forced the Griswold family to give up their constitutionally protected right to vote in exchange for a building permit. Hard as that might be to believe, it is actually not unique: it's actually quite common for local governments to abuse permits by forcing property owners to give up money or land or other rights.

Here's how the law works. Under the California Constitution, property owners are entitled to vote on whether their property should be assessed for local "improvements"--things like street lights or sidewalks. These are technically not taxes, but "assessments," and the state Constitution prohibits the government from imposing these assessments without giving affected property owners an opportunity to vote on them. But what the city of Carlsbad decided to do was to force people to pay these assessments up-front (which is illegal). And if the owner can't afford this--in the Griswolds' case it was almost $115,000--then the owner must sign an agreement giving up the right to vote on these assessments (large PDF file). And this waiver actually runs with the land, meaning anyone else who buys the property is also not allowed to vote…..

Sadly, local governments frequently force property owners to give up rights in exchange for these kinds of permits. What this means is that the government is essentially confiscating a person's property, and then selling it back to that person in exchange for their rights…….

You can learn more about the Griswolds' case by reading our media backgrounder.

Somin at Volokh Conspiracy has some thoughts on how this case should go, given existing Supreme Court precedent:

In the 1980s and early 1990s, the Supreme Court decided a series of cases that set limits to the power of government to use threats to development rights to force owners to give the government uncompensated takings (for example by banning development unless the owner gives the government a free easement). I discuss those cases in this article (pp. 10-13). Essentially, the Court ruled that local governments cannot use the threat of regulation to force owners to give up their constitutional right to compensation for the taking of their property. Presumably, the same logic should apply to government efforts to extort citizens into giving up their constitutional right to vote.

Comments

[Paul]

My guess is, the Griswolds will lose this case. You don't own your property, it's fee-based time-share from the government, with terms of agreement to change, without prior notice.

[Malto Dextrin]

Constitution? Oh come on.

These old political documents are so out of date.

Our new era demands new thinking!

[Tacos mmm...]

My guess is, the Griswolds will lose this case. You don't own your property, it's fee-based time-share from the government, with terms of agreement to change, without prior notice.

Now you see the violence inherent in The System!

Or, rather, what happens when your property rights are descending from feudal law.

[JP]

All those poor Griswolds want to do is make it to Wally World.

[Bramblyspam]

I used to work in title insurance, so I'm somewhat familiar with real estate law (albeit not in California variety, but I doubt it makes a difference here).

It's normal for a developer to get approval for a new subdivision only on condition that he pay for the sewer, street etc. improvements needed to serve the subdivision. Since these improvements directly benefit the property in question, and would otherwise be paid by the taxpayers, I really don't think libertarians would have a major problem with this. (Yes, in an ideal world, you wouldn't have the government providing streets and sewer services, but at some point we really must acknowledge that reality isn't a libertarian utopia).

Sometimes the sewer & street improvements won't happen immediately, especially if the property in question is somewhere out in the boonies. However, someday the town will expand, and in the long run (as the area gets more urbanized), there are plans to build sewer lines that will hook up to the property and so forth. I don't find it unreasonable for the govt to demand that the properties in question vote in favor of such improvements, as a condition of granting the building permit.

If this process is abused to force the property owners to vote in favor of being taxed for all kinds of projects that don't specifically affect the property in question, then that's another matter entirely. However, I didn't see signs of such abuse in a cursory viewing of that PDF on the Griswold case.

[Untermensch]

Where I live in Indiana we are just outside of city boundaries (boundaries which include tons of exclaves wherever the city thought it would get more taxes). In order to sign up to get water and sewer service, my wife had to sign a statement saying we wouldn't protest or take legal action if the city ever decided to annex our neighborhood. I've always thought that their little paper wouldn't stand up to any sort of scrutiny, but the whole thing bothered me: the local water and sewer system is a city monopoly with no alternatives, so we were over a barrel to sign the paper if we wanted to have water and sewer. If they ever do try to annex us I think I'll protest just on the principle of things (especially since *I* didn't sign the stupid paper).

[K.T.]

Deutschland, Deutschland ?ber alles.

[John C. Randolph]

In order to sign up to get water and sewer service, my wife had to sign a statement saying we wouldn't protest or take legal action if the city ever decided to annex our neighborhood.

Doesn't matter what she signed, it doesn't bind you unless she's your legal guardian.

-jcr

[zoltan]

...But if the house in her name? (Not that I think the paper would be legally binding anyway).

[John C. Randolph]

Come to think of it, if you protest or litigate right now, then you're not in breach of the illegal contract that your wife signed. They haven't attempted to annex you yet, right?

That will teach those weasels to get their wording right.

-jcr

[EscapedWestOfTheBigMuddy]

Sometimes the sewer & street improvements won't happen immediately, especially if the property in question is somewhere out in the boonies. However, someday the town will expand, and in the long run (as the area gets more urbanized), there are plans to build sewer lines that will hook up to the property and so forth. I don't find it unreasonable for the govt to demand that the properties in question vote in favor of such improvements, as a condition of granting the building permit.

I do.

The outlying communities and rural spaces are not there for the convenience of the city, and a lot of people who live out there don't want to be included in the political mire that controls most of our big cities.

Why the hell do political entities think they should be able to control who can and can't build what in a place where they aren't actually in control of the damn infrastructure?

[Episiarch]

You don't own your property, it's fee-based time-share from the government, with terms of agreement to change, without prior notice.

Bingo. Property tax is just your rent to the government, since they really own the land, not you.

[Mike]

Wow, do hate local governments. Every time you pick up a paper, they are pulling something like this. I can tolerate a federal government to protect me against foriegn threats, and a state government to protect me against domestic criminals, but I'm racking my brain to figure out what possible reason there is for local governments. As far as I can tell, their sole purpose is to violate property rights. (and handle stuff like water and sewer that should be privatized anyway)

[Mike]

oops, "Wow, do I hate local governments!"

[JB]

I have an idea. How about we make it a requirement that elected officials cut off/cut out their genitalia in order to serve in office? No more cocks and vaginas.

[?]

oops, "Wow, do I hate local governments!"

Oops nothing. "Do hate" is a reasonable demand.

Add some lawerly euphemisms for wrenching off cocks and shoveling out vaginas, and we got us a platform.

[Bobbitize a Busybody]

How about we make it a requirement that elected officials cut off/cut out their genitalia in order to serve in office? No more cocks and vaginas.

Yes indeed! We need a "Bobbitize a Busybody" law. Any politician or bureaucrat caught with his nose or hands where they shouldn't be and whack! - off with their junk!

[Xeones]

Any politician or bureaucrat caught with his nose or hands where they shouldn't be and whack! - off with their junk!

Fixed.

[zero]

Hopefully they will win enough from this lawsuit to go on a European Vacation.

[Longtime C\'bad Resident]

I've lived in Carlsbad since 1977. I'm not surprised. They currently delegate some law enforcement duties to volunteers, ie. ticketing vehicles to be towed, and tried to pass an ordinance requiring anyone who wished to construct improvements on their property to relinquish part of the property to the city to widen the streets & construct sidewalks. (The older northwest quadrant of the city has narrow streets and no sidewalks for the most part.) The laughable part is that for many people who wished to renovate an older home, the ordinance would require the home to be at least partially demolished in order to widen the street. My neighbor would have lost his kitchen, but the city didn't see any problems with that. He was renovating his home, so he might as well "renovate" his kitchen at the same time.