Posted by Ilya Somin:
California Local Government Uses Threats Against Property Rights to Force
Owners to Give up Voting Rights:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241665142
Tim Sandefur of the Pacific Legal Foundation has [1]an interesting
post on an important case involving property rights and voting rights
that he is litigating before the 9th Circuit:
Tomorrow I will be arguing the case of Griswold v. City of Carlsbad
in the Ninth Circuit Court of Appeals in Pasadena, California. This
is an astonishing case in which city officials forced the Griswold
family to give up their constitutionally protected right to vote in
exchange for a building permit. Hard as that might be to believe,
it is actually not unique: it's actually quite common for local
governments to abuse permits by forcing property owners to give up
money or land or other rights.
Here's how the law works. Under the California Constitution,
property owners are entitled to vote on whether their property
should be assessed for local "improvements"--things like street
lights or sidewalks. These are technically not taxes, but
"assessments," and the state Constitution prohibits the government
from imposing these assessments without giving affected property
owners an opportunity to vote on them. But what the city of
Carlsbad decided to do was to force people to pay these assessments
up-front (which is illegal). And if the owner can't afford this--in
the Griswolds' case it was almost $115,000--then the owner must
sign an agreement giving up the right to vote on these assessments
. . . And this waiver actually runs with the land, meaning anyone
else who buys the property is also not allowed to vote.
Amazing as it sounds, there are other similar cases going on right
now. In the city of Santa Rosa, California, officials are forcing
people to waive their right to vote on the annexation of their
property into a local tax district, in exchange for building
permits. That voting right is guaranteed by the state's "Mello-Roos
Act." And we've heard of similar cases in Montana and elsewhere.
Sadly, local governments frequently force property owners to give
up rights in exchange for these kinds of permits. What this means
is that the government is essentially confiscating a person's
property, and then selling it back to that person in exchange for
their rights.
In the 1980s and early 1990s, the Supreme Court decided a series of
cases that set limits to the power of government to use threats to
development rights to force owners to give the government
uncompensated takings (for example by banning development unless the
owner gives the government a free easement). I discuss those cases in
[2]this article (pp. 10-13). Essentially, the Court ruled that local
governments cannot use the threat of regulation to force owners to
give up their constitutional right to compensation for the taking of
their property. Presumably, the same logic should apply to government
efforts to extort citizens into giving up their constitutional right
to vote.
Cases like Carlsbad also create some perverse incentives for
governments and property owners. For any individual owner, giving up
their right to vote in a local assessment referendum is a small price
to pay for avoiding the loss of development rights on his or her land.
After all, the chance that any one vote will be decisive in an
election is infinitesmally small. However, if a large number of owners
act the same way, local governments can create an entire class of
property owners who are ineligible to vote in assessment referenda and
therefore easy targets for government revenue-raising schemes
targeting them. The kind of extortion practiced by local governments
in Carlsbad creates a collective action problem among property owners.
Rational behavior by individual owners leads to a terrible collective
outcome for the group.
References
1.
http://eminentdomain.typepad.com/my_weblog/2009/05/city-forces-property-owner-to-give-up-right-to-vote-ninth-circuit-argument.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1247854
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