Being Forced to Pay For Your Own Rights

I’m currently working on a case in why my clients were forced to give up their right to vote in exchange for a building permit.

Yes, really. In California, homeowners have a constitutional right to vote on certain kinds of property taxes called “assessments” (which differ from taxes in that they pay for improvements to a particular neighborhood and only residents in that neighborhood are required to pay). The state constitution says homeowners have the right to vote on whether to have an assessment and how much the assessment should be.

But in Carlsbad, they’d rather you not. There, if you apply for a building permit for a construction project that costs a certain amount, the city requires you to first pay the assessment up front. This is, of course, illegal, since there hadn’t been a vote. But also, if you can’t afford the assessment ($115,000 in my clients’ case) you can sign a handy waiver giving up your right to vote on assessments in the future — and the waiver runs with the land to any subsequent owner of the land!

Sadly, the trial court dismissed the case, saying it was brought both too early and too late (!) — and we appealed to the Ninth Circuit. It was a fascinating argument and you can read the briefs here. (1, 2, 3, 4, 5.) It’s been 18 months since the argument, and we’re hoping for a decision soon.

But this is only an extreme example of a common phenomenon called “exactions.” Government often requires property owners to pay for permission to develop their property, even though the right to develop one’s property is, at least to some degree, inherent in ownership. In Nollan v. California Coastal Commission, the Supreme Court said 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.’”

Yet government routinely forces property owners to give up land or cash to fund various pet projects, if they want a building permit. The courts have said that this is allowed only in certain narrowly limited circumstances, but local officials continue to do it. Among the most notorious recent examples was the case of San Francisco’s San Remo Hotel, which was forced to pay half a million dollars for permission to convert to a night-to-night tourist hotel, when it had been a long-term residential hotel. As California Supreme Court Justice Janice Brown observed in that case, what happens in cases like this is that the government basically confiscates the property and then sells it back to the owner in exchange for certain concessions. And if government can do that — if it can force people to give up money or land or easements in exchange for the right to develop their property, then why can it not force a person to give up the right to vote?

Update: Oops. Broken links fixed.