Del Mar’s North-Hills and Sunset under-grounding assessment districts confiscate private-property rights by forcing the participation of unwilling property owners. Confiscation begins when district organizers gerrymander the district to include more proponents than opponents.
Confiscation ends when the district secures under-grounding by majority rule. Then the opponents lose their withdrawal rights and subsidize the assessments of the proponents.
Proponents argue that opponents must accept majority rule as a democratic consequence.
But James Madison realized that all democracies are not equal. Observing ancient Greece, Madison concluded that pure democracy vouchsafed blackballing, mob rule, demagogic leadership, ostracism, politically convenient murder and chaos. Even Periclican Athens poisoned Socrates for opposing the Peloponnesian War.
In Federalist 10, Madison warned about pure democracy when he described the tyranny of a faction. By a faction, he meant “a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Madison believed the tyranny likely in states with populations close to 100,000, and he hoped to eliminate the tyranny by forming a republic with a larger and a more diverse population. With assessment districts containing populations approaching 400, he would fear factional tyranny.
Since Madison wrote the U.S. constitution, the founding fathers shared Madison’s views that liberty depended on secure property; and that property rights and individual rights lacked distinction; both were rights of property. Although Chief Justice John Marshall who promulgated the doctrine of judicial review in Marbury v. Madison often disagreed with Madison, Marshall echoed Madison’s concerns about factional tyranny with “the many, as often as the few can abuse power and trample on the weak without perceiving that they are tyrants.”
Marshall’s and Madison’s views coincided with the major currents of 18th century thought. The most frequently cited writers in post colonial America — Locke, Blackstone, Hume and Montesquieu — stressed government’s purpose protecting private rights, especially the rights of property, and fearing the tyranny of the majority as much as the tyranny of the crown.
To further protection against factional tyranny, the founding fathers enacted the Bill of Rights; and the post Civil War Americans enacted the 14th Amendment guarantees of due process and equal protection. The 14th Amendment also incorporated the first 14 amendments and made them binding on states and local municipalities.
For Del Mar’s North-Hills and Sunset assessment districts, majority rule replicates Madison’s factional tyranny. The apparently arbitrary and capricious assessments seem to violate due process and equal protection.
City Council actions also seem to violate due process with a rush to district voting, a dismissal of fairness concerns, and a willingness to tweak assessments for greater compliance following district voting.
If Del Mar does not scrub the current assessment districts, the city invites litigation.
At minimal individual cost, disaffected district members can file class action suits against Del Mar. The assessments size and the districts’ dissension make those suits likely.
Del Mar’s fiscal stress makes an adequate defense unlikely since the city cannot even afford four stop signs at a single intersection.
No impoverished city such as Del Mar rationally courts legal jeopardy. No fair city extorts developmental funds by forcing some citizens to subsidize other citizens.
No humane city pits neighbors against neighbors with lasting enmity. The city’s adherence to assessment districts questions the council’s humanity and its intelligence.
Proper policy analysis relies on the free market and allows the proponents to privately underground utility lines.
John Haraden is a resident of Del Mar.