At the Atlantic Cities, Anthony Flint writes on recent Tea Party activism in urban development arena. Tea Party groups across the country have spoken out against all manner of urbanist plans, from CAHSR to Smart Growth in Florida. Flint opines:
What’s driving the rebellion is a view that government should have no role in planning or shaping the built environment that in any way interferes with private property rights.
Both Flint and the Tea Party members that he’s writing about are seeing right past an essential property right. Don’t landowners have a right to employ their property as they see fit without explicit approval from their communities? Smart Growth tends to limit the right to build sprawl although its historic presercation component creates competing objectives. Traditional land use planning limits property owners’ right to build too though.
In an article all about the Tea Part and land use, Stephanie Mencimer at Mother Jones quotes a Tea Party activist who said, “”We don’t need none of that smart growth communism.” I love this as a stand alone quote, but this activist is ignoring the other side of the issue. Traditional planning, at least as top down as Smart Growth, has shaped his or her presumably suburban neighborhood. How about, “We don’t want these socialist setback requirements,” or “Down with pinko minimum lot sizes?”
Property rights in land use are, of course, a contentious and debatable issue. Charlie Gardner offers a summary of the court decisions that have led to a world where municipal governments are permitted to take away property rights without compensating land owners for these takings by limiting the density and uses that they are allowed to build.
The suburbanist side of this debate is that property rights include the right to control a certain degree of land use for the land adjacent to your property. These tend to include the to free and easily available parking, the right to see a green lawn in your neighbor’s yard, and the right to limit building heights.
As I see it though, these rights do not come with landownership. Those Tea Party activists who identify as libertarians presumably support John Stuart Mill’s harm principle. This principle was captured perhaps most concisely by Zechariah Chafee, Jr. who said, “Your right to swing your arms ends just where the other man’s nose begins.” I cannot ask government to intervene just because I think your behavior is weird or doesn’t fit with my preferred lifestyle so long as you aren’t violating mine or anyone else’s person or property.
As I see it, the harm principle extends quite straightforwardly to land use; your right to build and conduct business ends where your neighbor’s property line begins. For those who wish to live in a regulated community, the market provides plenty of HOA’s that should meet their needs just fine without relying on government land use restrictions. For commercial land uses, Business Improvement Districts can likewise provide a regulated built environment through voluntary private contracts.
“I cannot ask government to intervene just because I think your behavior is weird or doesn’t fit with my preferred lifestyle so long as you aren’t violating mine or anyone else’s person or property.” This is begging the question. Just which rights are associated with your property? The property can certainly be “harmed” (inasmuch as its resale value may decrease) as a result of noises or smells from the adjacent lots, new construction blocking a view, or even by things like the ethnicity of the neighbours. And the sounds waves/gasses/photons mediating these effects do after all enter your “person”.
Our current system recognises a right to sue your neighbour for building a factory that fills the neighbourhood with hydrogen cyanide, but not for merely showering infrequently; for operating deafening machinery at all hours, but not for listening to annoying music; for shining a blinding searchlight onto others property, but not for having an unkempt garden. But in all cases the difference is merely one of degree, and neither extreme seems at all tenable. We can argue about where the best place to draw the line is, and I agree that in most cases property owners should have more freedom in what to build on their property than they have under the status quo, but the question is far from “straightforward”.
You’re certainly right that the radical libertarian position is not the one that most people accept.
With regard to the pollution case, many pollutants easily cross property lines, so neighbors need to find ways not to pollute on others or to compensate those whom their pollution impacts. But in most other cases, I don’t think that those who accept the harm principle are justified in turning to the government to intervene. We have many solutions at our disposal to limit behavior within a neighborhood outside of government force.
Bearing in mind that we are in medias res, in the middle of things, what do you mean by this statement:
“For commercial land uses, Business Improvement Districts can likewise provide a regulated built environment through voluntary private contracts.”
Do you propose that — just pick any particular commercial area — zoning should be removed? And that merchants & property owners will form their own BID? A statement like yours might sound great in planning school, when starting from scratch in an ideal world on a Von Thunen plain, but I am perplexed that what you appear to propose can be even remotely plausible. Pray explain.
To add what David and Anon256 have already chimed in:
What about all the externalities of development? Should a land-owner be allowed to build anything they want if the result of that development would directly tax adjoining infrastructure? If I build a large parking garage, I will be encouraging thousands of cars to now use the fronting road. It seems there need to be some kind of legal mechanism for recognizing some developments that have usual needs. Sure, there are impact fees, but if the property is so poorly built or used, then when the property never is productive, it is a net loss to the community when maintenance is due (long after the impact fees have been collected and spent). I think my biggest issue with the Harm principal is it relies on individuals having the actual ability to sue (and win) when their property is being harmed. If Wal-Mart buys the “back twenty” and builds a distribution facility and my property now floods more frequently due to run-off, this position now relies on me have the time and resources to actually sue Wal-Mart. So yeah, I think government, especially at the local level, does a fantastic job of empowering all citizens to appeal decisions or at least bring to light negative implications of development before it becomes a train of lawsuits. In fact, we already see issues with this default to the Harm rule in areas where no rules exist. In far too many places, cars are allowed to pollute the air substantially. There are no impact fees assigned to them. How shall I sue them all? Of course, some people believe that the hue hovering above the city is merely dust or isn’t toxic –whatever. Which I guess just underlines the ambiguity of it all and why we need thousands of micro-democracies where we can do our best to right as many wrongs as possible while expecting people to hold the line on any local government to push back any abuse. I would happily have my vote than have a good attorney. For what it’s worth, I think that is the America our founders had in mind too. Does that mean that our current zoning laws are all good. Not at all. We need a reset in most places. But let’s not throw the baby out with the bath water here. Property Rights need to be restated more clearly as the Right To Own Property. What you do with that property is not a right necessarily and should be contingent on if you . Requiring people broadcast their intentions (permit) to mitigate against obvious infringements seems far too logical to simply dismiss it altogether. Let’s shift the discussion from the absence of the rule of law in land ownership and move toward better, sensible definitions of what is legal and what isn’t. Then property owners will more clearly know how the sovereign freedom to own property is defined in a free society.
I really don’t understand what the point of this article is. Is planning a good thing? Should it be done in “moderation?” I don’t also understand the point of this quote: “Traditional planning, at least as top down as Smart Growth, has shaped his or her presumably suburban neighborhood.”
First off, not necessarily, and secondly is this a good thing? Or do you think the “activist” would think it’s a good thing? I don’t necessarily agree with that. People are not as stupid as you may think.
An incidental loss in property value due to to someone else’s lawful act is not an invasion of any property “right.” The economy could hardly function if that principle were followed. Nuisance law is not a guarantor of values, but rather operates to protect others’ exercise of their rights to use their own property. For instance, if my factory produces loud noises at all hours of the day next to your house, I’ve deprived you of your right to use it as a residence. That right may be absolute: courts can grant an injunction rather than assessing damages. Still, it’s a narrow remedy. The problem is not really the activity in my factory, but the noise it is making. If in response I sound-proof the walls, invest in better equipment, and the noise levels drop, the nuisance is abated.
I always use as a starting point the three basic rights that courts have most often mentioned: the right to acquire property, the right to alienate it, and the right to freely use it subject to the limits Emily has mentioned. I’d argue there is plenty of room for regulation left here without directly infringing on any of these three.
This is a great point. In talking about free market urban development, I find it easy to wander into utopian visions without sticking to specific policy recommendations. If I were in the lawmaking business (or law repealing business, rather), I would propose a phase out of zoning rather than an abrupt elimination. I think that a great place to start would be removing parking minimums and maximums. Next up might be getting rid of huge setback requirements. As zoning was eliminated over a period of time, I think it’s likely that private governance like BIDs would play an increasingly important role in shaping urban form, but I don’t want to suggest that I know what the world would look like in the counterfactual free market world.
Btw, my major concern about the idea of “…likewise provide a regulated built environment through voluntary private contracts.” is NOT that I don’t like the idea. In fact it’s fine. The “least intrusive means” should be always kept in mind. The only issue for me is the huge transaction costs which, I believe, make private agreements for land use quite impossible. Thed very reason we have government is because “voluntary private contracts” are too complex. We got rid of tort law (as to land use) because it was much easier to have uniform area-wide regulations.