Extortionists at City Hall

March 21, 1994|By GEORGE F. WILL

WASHINGTON — Washington. -- The city government of Tigard, Oregon, didn't reckon on Florence Dolan being so feisty. That elderly widow got her dander up and now it is up to the Supreme Court, which will hear her case Wednesday, to tell the city to behave.

Mrs. Dolan owns a 1.67-acre lot, on which sits her plumbing-supply store, which she wants to enlarge. For that she needs a building permit. The city has responded to her need by attempting extortion. The city says she can have the permit only if she gives the city 10 percent of her property for a drainage green space along a creek, and if she gives another strip of her land for a pedestrian and bicycle pathway. She says this constitutes an unconstitutional ''taking'' of her property.

The Constitution's Fifth Amendment says property shall not be taken for public use without ''just compensation,'' and the 14th Amendment says no state shall deprive a person of property without ''due process of law.'' The Supreme Court has said that burdens placed on the use or development of private property should be specifically related to public burdens created by the use or development.

But the Tigard government made only perfunctory and conjectural attempts to justify extorting portions of Mrs. Dolan's property by citing possible consequences of the enlargement of her store. The city ''assumed, theorized and hypothesized'' (in the language of Mrs. Dolan's brief) but made no attempt actually to demonstrate that, say, additional green space would be needed to compensate for additional rain runoff, or that local traffic arteries needed to be supplemented with pedestrian and bicycle paths because business would surge dramatically at Mrs. Dolan's larger store.

Indeed, there is no reason to believe that if she had not sought a building permit, the city would have tried to purchase parts of her land for the purposes for which it now tries to grab them. Her need for a permit simply provided an opportunity for government to seize the property without payment, forcing one person to bear the burden of a government project which, if it serves the public interest, should be paid for by the general public.

This case illustrates a dynamic of government dangerous to liberty. As public skepticism about government's competence and motives deepens, the public resists placing revenues at government's discretion.

But this resistance to taxation reduces government's revenues more than government reduces its appetite for action. The government is still eager to do favors for the public, but flinches from the unpleasantness of asking the public to pay for them, because the public wants less from government than government wants the public to want.

So various governments resort to such devices as unfunded mandates on lower governments, mandates and regulations on the private sector and, as in Tigard, opportunistic extortion directed against unfortunately placed individuals.

Tigard's opportunism is relatively mild. A California property owner seeking a permit to build condominiums was required to pay $280,000 to help finance Culver City's public recreation facilities. Why? The flimsy pretext was that he was building on land previously owned by a health club -- a private health club at that. He also was required to pay $33,220 to the city's ''art in public places'' program, an action that violated the Takings Clause, and perhaps also his First Amendment free-speech guarantees because it compelled him to fund expression he disapproved. These coerced payments bore no real relation to any public burden created by his construction project.

Mrs. Dolan lost to Tigard's grasping government in Oregon's Su- preme Court. However, a dissenting justice warned that ''what once would have been recognizable as extortion may turn, in time, into something considered benign, because it is so familiar.''

All across the country it is conspicuous that many liberals who construe the constitutional ''privacy'' value expansively to enlarge abortion rights construe it narrowly when property rights are at risk. But property rights are a privacy right the Constitution explicitly protects because the framers understood that liberty is no stronger than the protections accorded property.

Control of property provides a sphere of independence and resources for enjoyment of it. Hence the framers wrote the Takings Clause to make government intrusion on private property difficult and limited. Therefore Florence Dolan deserves honorable mention among those who defend our privacy by pushing back against the constant pressure of government to constrict the zone of personal sovereignty.

Honorable, too, are the 3,400 supporters of the Oregonians In Action Legal Center who are paying Mrs. Dolan's $250,000 litigation expenses. That cost, more than eight times the value of the property at issue, also is part of the extortion.

George F. Will is a syndicated columnist.

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