Property Rights or Property Permissions?

November 2009
Vol. 23, No. 10

Property Rights or Property Permissions?
A disturbing trend, reaching back to the Progressive Era, continues to deform property rights in America.
Timothy Sandefur

When Craig and Robin Griswold applied for a building permit to renovate their small home in the southern California city of Carlsbad, they were shocked to learn what city officials wanted in exchange: the city demanded that they give up their right to vote.

Article XIII of the state constitution guarantees California homeowners the right to vote on whether their properties are assessed for the value of local improvements such as the construction of new streetlights or sidewalks. Assessments differ from property taxes in that they are levied only on the properties in the neighborhood that benefit from these improvements. In 1996, after years of abuse by cities that routinely assessed property owners without restraint, voters passed an initiative amending the constitution and requiring cities to hold elections before assessing property owners for local improvements.

But Carlsbad officials have found a way to avoid this constitutional provision. Rather than allowing homeowners to vote on assessments, the city simply imposes assessments on homeowners whenever they remodel their homes in ways that cost more than $75,000. This estimate is done by the city, according to its own formula, when the homeowner applies for the necessary building permits. If the city thinks the renovation would exceed that amount, it automatically — and illegally — assesses the owner for the construction of sidewalks, curbs, lighting, and other projects. This demand can be extremely expensive: in the Griswolds’ case, the city asked for an upfront payment of $114,979.

But, recognizing that such an amount would prove prohibitive to many homeowners, the city also offers an alternative. For those who cannot afford the illegal assessment, the city offers a waiver form, giving up the voting right conferred by the state constitution, and waiving any right to “file or bring any protest, complaint, or legal action of any nature whatsoever challenging the validity of the proceedings.” This waiver is quite explicit, specifying that “the owner hereby consents to, and approves of . . . the levy of an assessment against the property . . . [and] grants to the city a proxy to act for and on behalf of the owner, the owner’s successors, heirs, assigns, and/or transferees, for the limited purpose of completing and submitting an assessment ballot in support of the levy of the assessment.” In other words, in exchange for a permit to renovate their home, the Griswolds were forced to give up their constitutionally protected voting right — and the waiver binds not only the Griswolds, but anyone to whom they might sell or give the property.

The Griswolds, represented by attorneys at the Pacific Legal Foundation, filed a federal civil rights lawsuit to challenge the constitutionality of the assessment scheme, arguing among other things that it’s an illegal poll tax, since the city conditions the right to vote on the payment of a fee. Although the trial court dismissed the case on a procedural technicality, the Griswolds appealed to the 9th Circuit Court of Appeals, which heard oral arguments in May.

It might seem outlandish that government officials would demand that property owners waive their right to vote in exchange for a building permit, but this case is only one extreme example of an increasingly common phenomenon: the abuse of permitting powers by local governments that want to force property owners to give up their rights — to money, to land, or to the ballot — in exchange for permission to use their own property as they wish. Nor is it an isolated incident. The city of Santa Rosa, California, enforces an ordinance that forces permit applicants to give up their right to vote on a different kind of tax. Similar rules appear to be in place in Missoula, Montana.

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