May 6, 2009

City Forces Property Owner to Give Up Right to Vote: Ninth Circuit Argument

By Damien M. Schiff Senior Attorney

by Timothy Sandefur

Tomorrow I will be arguing the case of Griswold v. City of Carlsbad in the Ninth Circuit Court of Appeals in Pasadena, California. This 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.

Amazing as it sounds, there are other similar cases going on right now. In the city of Santa Rosa, California, officials are forcing people to waive their right to vote on the annexation of their property into a local tax district, in exchange for building permits. That voting right is guaranteed by the state's "Mello-Roos Act." And we've heard of similar cases in Montana and elsewhere.

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. Usually, cities demand money in exchange for permits; they also often force people to give up land for a permit. In this case, the city is forcing people to give up a voting right guaranteed by the California Constitution.

More than twenty years ago, Pacific Legal Foundation attorneys won the case of Nollan v. California Coastal Commission before the United States Supreme Court. That decision made clear that a building permit is not some kind of a privilege that the government can sell to you. Permits are supposed to protect the general public against dangerous or burdensome property uses, and government officials should not use them as an opportunity to exploit homeowners and business owners and force them individually to pay for public projects that ought to be paid for by taxpayers in general.

We filed a lawsuit against Carlsbad's absurd policy in 2006, but the trial court dismissed the case, holding that the Griswolds should have sued earlier. We are now on appeal, and oral argument in the case will be heard tomorrow at 9 a.m. Although the argument here is a technical one, the bottom line in the case is clear: government should not be able to abuse the permit process to exploit property owners and take away individual rights.

You can learn more about the Griswolds' case by reading our media backgrounder, or at our website.

Update: I'll be on the Armstrong and Getty Show tomorrow in the 8 o'clock hour to discuss the case.

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