by Braden H. Boucek
If you want to build a house, obviously you have to pay the owner for the land.Otherwise, it is theft. Property rights are the bedrock of a civil society. Just read the Constitution. Personal property rights are guaranteed even against the government by the Fifth Amendment.
If John Smith wants to build a house on land owned by Jane Doe, he purchases the land from her. But what happens when a local government wants to build a road or sidewalk across someone’s property? Unlike John Smith, the government can make Jane Doe sell, but the government must still pay fair value.
Unfortunately for taxpaying property owners, “paying people”is a problem for government. Cities are broke.With budgetary restraint out of the question, what is a government supposed to do when it wants your property?
Instead of responsible budgeting, governments have gotten creative. Cities strongarm people into payingf or public infrastructure before they will perform basic services.It’s not responsible governance, but it avoids hard fiscal choices.
Nashville’s sidewalk funding scheme is a great example. Nashville will only issue permits for new homes if you pay for city-owned sidewalks.
That’s what Nashville did to Jason Mayes and Jim Knight. The city forced them to surrender both land and money to build sidewalks in exchange for permits.There is no question that if Nashville demanded property outright instead of bargaining with permits, it would have had to pay. But Nashville didn’t want to pay, so it made a threat: give us your land and money or you won’t get the permits you need to build a home.
The city’s demands were particularly crazy. Any sidewalk Jim or Jason would have built would have gone nowhere because there aren’t any connecting sidewalks. Nashville’s now-famous silly sidewalks seem to exist for tourists to post on Reddit threads. Even worse, sidewalks would have flooded the neighborhood, and so Nashville’s Stormwater Division told them not build the sidewalks they never wanted in the first place.
Nashville’s solution was “pay us $9,000 and we won’t make you build sidewalks.” That is one expensive slip of paper.
Jason gave in because his family needed a place to live, but the city didn’t use Jason’s money to build a sidewalk he could use. Instead, it built a sidewalk miles away. Everyone generally gets to use sidewalks but why should just Jason pay for a sidewalk on someone else’s yard?
Nashville’s motives are not mysterious. Nashville is broke. Nashville ranks as a bottom five “sinkhole city.”Its indebtedness, despite decades of phenomenal growth,owes in large part to internal improvements like sidewalks that it approved but has no idea how to pay for.Any company with such distressed finances during boom times would fire everyone.
Unsurprisingly, Jim and Jason sued. The case gets us back to basics of constitutional law. If the government wants to take your property to build sidewalks, then it must pay you. The government cannot use permits as a constitutional workaround. And this case is a great opportunity for the courts to say they mean it.
Jim and Jason lost in the district court but lost with a twist. The district court judge appears to have thought her hands were tied because the Nashville council imposed the permit condition through an ordinance rather than through an administrative body like the zoning board. She thought she was forced to apply a certain standard that always results in the government winning. But she also held that if she applied standard constitutional analysis, then Nashville loses. Naturally, Jim and Jason appealed.
It’s extortion really, and it makes it worse—not better—that it was a law. The government can’t demand you waive away your rights before it will agree to do the job you were already paying it to do. It’s the difference between police protection and mob protection.
The constitutional right to compensation is what separates eminent domain from out-and-out thievery. It shouldn’t be so easily dodged.Nashville should be as energetic about getting its finances in order as it is trying to avoid the Constitution.
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Braden Boucek is Director of Litigation at Southeastern Legal Foundation (SLF), a national constitutional public interest law firm, founded in 1976, that has appeared regularly before the U.S. Supreme Court.SLF represents Jim and Jason in this case.
Photo by “Jason Mayes and Jim Knight” by Southeastern Legal Foundation.