Saturday, September 23, 2006

Property Interests, not Property Rights

Prompted by this post at Mike's Musings on the curious names of suburban subdivisions and this post on New Castle County's Comprehensive Plan at The Delaware Way, I have been thinking about the balance between land use regulation and the rights of property owners.
We often hear the phrase "property rights" from those opposed to new or different zoning and land use regulations. Those who use this phrase couple it with the idea that new restrictions on land use constitutes takings of property by government, and that land owners whould be compensated for newly restrictive regulations affecting their land.
The concept of rights in our system of government is a powerful one, going back to the Declaration of Independence, in which we are said to enjoy "inalienable rights, among them life, liberty and the pursuit of happiness." In this conext, and in the public imagination, rights are inviolate and not negotiable. But because of the tradeoffs involved, the specifics of zoning laws are necessarily negotiable, which is why I prefer to think in terms of interests, not rights, when it comes to managing land use.
Zoning and other land use regulation are designed to protect neighbors from deleterious effects from nearby properties. There are many ways in which activities on one property can affect another: pollution, heavy traffic, noise, blocking sunlight, soil erosion, increased hazard from flooding, to name but a few. The nexus of relationships in any sophisticated community precludes recognition of simplistic claims of property rights, and instead requires a balancing of competing claims of individual and community interests.
No individual claim of property rights can or should trump the interest of the community to reasonably manage land use in its jurisdiction. In return, the standards of fairness and due process are set high enough to make it difficult to change the zoning for a particlular property.
I sat in Wilmington City Council on Thursday night as a rezoning ordinance was tabled due to lack of support. Because the rezoning had been tabled by the city's Planning Commission, three quarters of the members of Council had to approve the ordinance for it to pass. The votes weren't there and the ordinance was held.
This was a useful example of how our system works: Instead of recognizing the simplistic notion of property rights, we have a system that makes it difficult to enact new restrictions on land use without amble opportunity for all involved to make their case.


Blogger Hydra said...

Zoning and other land use regulation are designed to protect neighbors from deleterious effects from nearby properties.

That implies that those properties have already caused deleterious effects on their predecessors. Once they are installed they wish to impose new regulations that prevent more of the same, with deleterious effects on those who have not yet developed: exactly what zoning is supposed to prevent.

The effect is that those who have preserved their land the longest get punished the most.

The county makes itself a party to property transfers by taking upon itself the job of recording the deeds. The county has an obligation to protect property, and it should prescribe explicity what is transferrred and what is not. This is commonly done in the case of easements for ingress and egress for example.

Therefore, if the riparian setback is 100 feet at the time of the deed, that should be recorded. If it is later changed to 400 feet to help reduce flooding downstream, then those that benefit from the reduced flooding should expect to rent the land that protects them.

Suppose the building rights are five at the time of sale, and later the community later decides it wishes to reduce growth to save money on schools, so it reduces the rights to two. Effectively, they are renting their savings form the owner, without paying rent.

It is entirely possible that the savings to community taxpayers are exceeded by the loss to one taxpayer, in which case the claim of overarching community benefit goes out the window. Only if the winners can compensate the losers and still come out ahead does the community benefit argument make sense.

If an owner has bought property with the expectation and assurance of the county that it can be used for up to five building lots, and the county later reduce those to five, then they have stolen that persons property. If the change is made at the behest of his newer neighbors who bought lots later and from others, then it is his neighbors who are stealing his property.

Looked at another way, they are asking him to maintain his property in a certain state: they want him to work for them and follow their directions. My experiece is that whn I want others to do as I say, then I have to pay them.

If my neighbors want me to be in the scenery business, then they had better be willing to supply some paying customers: you can't go to the movies for free.

The way you get the maximum community interests is by adding up all the individual ones. If some new community interest is identified that is so important that it must be had, then it is reasonable to expect the community to pay for it, especially if the benefits devolve to many and the costs to few.

Every individual claim to property right should be able to trump the interest of the community precisely because it is in the interest of the community to protect the minority. And especially if the interst of the community is expected to be supported without remuneration: it is a tax that applies only to a few.

Now, the case you describe with the rezoning is different entirely. Here an individual bought certain rights, and then went and asked for additional ones. That is an entirely different situation than if he previously had rights and they were removed.

In most communities, such a request will be met by a demandfor impact fees or proffers. This is entirely reasonable as he is asking for favors that may impact his neighbors. It is also entirely reasonable that when the reverse situation occurs, that his neighbors should compensate him.

11:40 PM, September 30, 2006  

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