by Timothy Sandefur
Nollan involved an issue of major importance to all property owners: under what circumstances can the government demand that you give up something (land, money, or other rights) in exchange for a building permit? Governments routinely demand such exactions, and the amounts are steadily rising. The result is higher housing costs for everyone, and more obstacles in the way of the American Dream. Moreover, government is demanding different sorts of things from property owners. In a case I'm currently litigating in federal court in San Diego, the government demanded that the Griswold family give up their constitutionally guaranteed right to vote on property taxes (technically, assessments) in exchange for a building permit! As I write in the article,
Exactions like these are symptoms of government run wild. Bureaucrats given extraordinary power to dictate how landowners can use their property are able to indulge their most opulent "visions" at the expense of citizens who have little political influence and little chance to protect themselves in court. Nothing could be more contrary to the purposes behind the Constitution. It was written to protect us against the ambitions of bureaucrats who would violate our rights in the pursuit of their plans. That's why the Supreme Court has explained that the Fifth Amendment prohibits government "from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Yet government officials can use the permitting procedure to increase government revenue — or to provide public goods — without imposing politically unpopular taxes. By shifting the cost of government policies onto individual landowners, politicians can look like bold innovators without ever revealing the true injustice, and the true cost, of their policies.