Property Rights

Plan To Build On Your Own Land? That's Going To Cost You.

Limits on property rights are where control freakery meets extortion


Pete Nelson builds treehouses—big ones, for grownups. It's a sufficiently imagination-capturing business that the Washington-based builder landed his own show on Animal Planet. In a 2013 interview with Land8, a landscape architecture site, Nelson described the specific engineering challenges and building techniques peculiar to his small industry. Putting durable structures up in trees is pretty specialized stuff, and he's one of the few experts in the field.

"It is hard to convince the powers that be that a certain tree can withstand the weight of a substantial structure," Nelson told Land8, speaking of the knowledge gap between specialized builders like himself and the regulators who don't understand the work he's doing. Not that Oregon bureaucrats give a damn. On November 30, the state Construction Contractors Board boasted that it fined him "$5,000 for working without a license while building a single-family tree house in a Sitka spruce in Neskowin."

That was after slapping Nelson with $1,000 in penalties in 2014. They also hit him, for good measure, for constructing arborial dwelling without building permits.

At least Pete Nelson is a businessman getting paid to baffle government paper-pushers. Do-it-yourselfers have fewer resources to fall back on when running the official gauntlet.

New Brunswick's late Craig Morrison found out how hard it is to get inspectors to put down the rule book when he decided to build a smaller house for himself and his ailing wife on their acreage. Fully competent to do his own work – he'd already constructed four houses – Morrison simply ignored the red tape that ensnares property use across North America and put the place up himself, even ripping his own lumber.

Local inspectors went to war, threatening to tear the house down and imprison the DIYer for building on his own property without permission.

Ultimately a local judge gave Morrison the win, announcing, "I'm not going to order a 91-year-old man to jail and have his wife placed in a nursing home."

The 2013 movie Still Mine, featured James Cromwell as the elderly individualist fighting for his rare victory over planners and inspectors. But few of us are lucky enough to win a cinema-worthy victory over bureaucrats.

In preparation for putting their house up for sale, Dean and Marsha Frease, of Corvallis, Oregon, made the mistake of fessing up to the city that they'd had unpermitted work done on a cottage on the property. City officials responded by forcing the demolition of the small structure while poring over the entire property in search of violations. Given the detailed rules and the fine-tooth nature of the scrutiny, officials inevitably found what they sought—some of the violations involving the city's own failure to perform final inspections decades ago, with the costs to be borne by the Freases.

"They didn't do a final inspection on something that's 40 years old?" notes former Corvallis building plan inspector Bill Clemens, who says the city is infamously rigid and should back off. "Well, I'm sorry, but who cares?"

Officials offended that somebody bypassed them obviously care. Enough to stick the Freases with about $100,000 in expenses.

Corvallis officials aren't alone in bringing allegations of long-ago violations back from the dead. Elliott Feiner received a letter from Sarasota County, Florida, officials objecting that the final inspection on his swimming pool hadn't been performed—after a 16-year delay. When a local newspaper columnist looked into the case, he discovered that the county was sending out hundreds of letter about ancient permitting concerns dredged from its databases. In many cases, the violations seem to exist only in county computers' faulty electronic memory. Officials' recordkeeping had been spotty at best, but that didn't stop them from trying to claim the $7 million in uncollected fees they thought they were due.

Money is a big driver behind permitting hassles—that, and the urge to control. The Orange County Register rightfully described as "extortion" demands by Carslbad, California, that property owners pay enormous fees or else surrender the right to vote on assessments in return for permission to build. That community wasn't the only to tie outrageous demands to the "privilege" of using private property (though some courts have since drawn the line at extinguishing voting rights). After Arizona voters strengthened the state's property rights, some cities began requiring property owners to waive their rights as the price for approving projects.

Sometimes the arm-twisting is more explicitly crude, such as when John Cleveland Brown, a Clinton, Maryland, building inspector demanded a restaurant "hire" his band for $1,000 per week or else the owners would suffer permit trouble. Kim Davis and Billie Muhammed, officials with the East Orange, New Jersey, city government had a similar scheme, extracting cash payments from property owners in return for permission to build homes.

Compared to the byzantine rationales raised by officials to mug people and bludgeon them into submission, such blatant use of the power of the permitting process to extract personal gain is almost refreshingly honest in its open thuggery.

The U.S. Supreme Court stepped in to restrict some of the worst abuses in 2013, requiring that conditions on land use actually involve the property in question, and insisting there are outer limits to the fees governments can extract. But that still left a lot of room for bureaucratic hassles, imposed costs, and micromanaging of people's use of their own property. Nelson, the Freases, and Feiner and company have all suffered at the hands of officialdom in ways untouched by that ruling. So have the unwilling customers of Brown, Davis, and Muhammed.

So, if you plan to build a house—up in the trees, or down on the ground—or just have a little work done, keep your hand on your wallet and your eye on local officials. They may well insist you get their permission to undertake even a small project, and that permission could come with a big price tag.