Koontz oral argument: permit conditions and the right to vote

January 15, 2013 | By TIMOTHY SANDEFUR

In our recent posts about the Koontz case and the ways government forces property owners to hand over things in exchange for building permits, we’ve focused primarily on government demands for money or property. But government sometimes demands other rights. In fact, in one California community, officials tell property owners that if they want a building permit, they have to give up their constitutionally protected right to vote.

California’s Constitution guarantees homeowners the right to vote on certain kinds of local taxes called “assessments.” These are different than taxes in that they’re imposed in an neighborhood or a small area and are used to fund improvements in just that place. But under Article XIIID of the state Constitution, whenever the local government decides to establish an assessment district, it has to allow the affected residents the opportunity to vote on that decision, and to vote on the amount of the assessment.

In Carlsbad, California, however, the city didn’t want to do that. Instead, it passed an ordinance that says that if your proposed construction project exceeds (in the city’s opinion) $75,000 in costs, you’re required to pay an assessment up front. And if you can’t afford it, the city offers you an alternative: you can sign a waiver giving up your right to vote on assessments. And that waiver runs with the land to any subsequent purchaser of the property.

When asked to explain this, the city attorney told reporters “In this state, development is a privilege and development is allowed to be conditioned.” In fact, as we pointed out at the time, the Nollan precedent says that the right to build on your own land cannot in any sense be described as a government privilege. And conditioning a person’s right to build on them giving up their constitutionally protected right to vote is clearly extortionate and abusive.

One question at issue in the Koontz case, being argued today, is whether the limits in Nollan and Dolan apply when the government demands cash or only when it demands land, as it did in those cases. But if the government can get away with demanding land or cash, why can it not also force you to waive other kinds of constitutional rights—including the right to vote? If the government can force you to pay for the right to build on your own land, why can it not make all sorts of demands? And if you believe it is wrong for the government to force people to give up their voting rights for a permit, then where do you draw the line?

We challenged the Carlsbad ordinance some years ago on behalf of Carlsbad homeowners Craig and Robin Griswold. When they sought to add a second story to their house, the city ordered them to pay $115,000 in assessments, or sign the waiver. Sadly, the Ninth Circuit Court of Appeals dismissed the case for procedural reasons—it held that since the Griswolds had constructed their project, they were barred by state law from challenging the conditions. The ordinance therefore remains on the books.  You can learn more about it here. (And if you or someone you know would like to file a lawsuit challenging it, please give us a call.)