In This State, Development Is A Privilege


by Timothy Sandefur

The San Diego Union Tribune has an article this morning on the Pacific Legal Foundation's Griswold case: that's the case in which the city of Carlsbad is requiring property owners to give up their right to vote on property assessments in exchange for a building permit. The quote from the city's attorney says it all: "In this state, development is a privilege and development is allowed to be conditioned." Funny, but I seem to recall that the U.S. Supreme Court said in the Nollan case that "the right to build on one's own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a 'governmental benefit.'" Nollan v. California Coastal Com'n, 483 U.S. 825, 833 n.2 (1987).

This is more evidence of the fact that the modern property rights crisis is the result of Progressive-era theories which declared that rights are really just permissions given to us by the government. For more on that, see my article, Mine And Thine Distinct: What Kelo Says About Our Path, (Chapman Law Review, forthcoming).