Sunday, May 10, 2015

Private Property Rights versus ‘the Power to Govern Land Use’

In reply to my Mulshine column ( Chris Christie's the cat who ate the COAH canary) comment calling for an end to zoning, correspondent James Ariac vigorously defended the institution, which he termed “the power to govern land use”:

Zemack [my screen name] is partly correct on the issue of property rights but also inadvertently highlights the real issue.  Zoning is a State power that has been delegated to municipalities through the Municipal Land Use Law.  In the words of Peter Parker, “with great power comes great responsibility.”  Problem is, there was no oversight to ensure that with the delegation of the power to govern land use locally, there was a responsibility to do so in a manner that also provided for the general benefit of the state as a whole and its citizens.  If that is done properly, it is my no means "zoning boards running roughshod over individual private property owners."

But actually, Ariac confirms my point. Even with full state oversight, zoning boards would still be dictating land use. And that’s where property rights come in—or rather, get left out. Under the most honestly motivated zoning personnel, the collectivist premise underpinning zoning authority requires precisely “running roughshod over individual private property owners." Ariac confirms the truth of this as he explains in detail how this process will work:

The turmoil associated with the Courts and its Mt. Laurel decisions, COAH, advocates for the poor, developers, land preservationists, environmentalists, NIMBYs, the long list of politicians who have immersed themselves in the issue and even the reporters who have covered the turmoil is that everyone takes positions that are at one extreme or the other.  It cannot be an issue of anyone being able to afford to live in any town they want regardless of their income.  It cannot be about granting massive density increases under the veil of providing a modicum of lower priced homes.  It cannot be about eliminating housing opportunities for lower income families under the guise of protecting farmland, open space or the bucolic character of a community.  And it certainly cannot be about rallying political support from the narrow minds of either end of the opinion spectrum.  What it can, should and must be about is balance. Local zoning laws can provide for smaller lot sizes in areas where it makes sense.  Density increases that provide these opportunities can be reasonable without inundating locales with overburdened infrastructure.  Developers can provide for a variety of housing price points without windfall profits that make every development opportunity a get rich quick scheme.  Modest amounts of properly located land resources can be zoned to accommodate smaller, less expensive homes.  Redevelopment plans can be crafted to accomplish multiple goals that include both economic development and mixed income housing opportunities.

What’s missing from the “turmoil” and Ariac’s solution? Any mention of individual private property owners. Defenders of central planning always rely on collectivist rationalizations. Ariac’s vision is of a tribe inhabiting a collectively owned land mass, ruled by tribal chiefs divvying up parcels. The governmental planning authority will weigh the demands of all competing tribal factions (special interests)—COAH supporters, advocates for the poor, developers, land preservationists, environmentalists, NIMBYs, politicians, reporters—and then “craft”—i.e., dictate—who gets “smaller lot sizes”; who get “density increases”; and who gets “preservation.” But the rights of private property owners?

Ariac says I’m “partly correct on the issue of property rights.” But where am I correct? He doesn’t say. In fact, he doesn’t say where property rights fit into land use planning. Aside from his opening sentence, he doesn’t even mention property rights. Why not? Apparently because, in his view, everyone and everything will be considered, except the rights of property owners.

The job of land use authorities, Ariac explains, is to forge “compromise” between all of these “extreme” factions. But what compromise is possible between land preservationists, who are ideologically opposed to development, and property owners, who want to develop their property? How does one even begin to resolve such conflicts if one doesn’t even acknowledge private property owners as having a valid place at the planning table? If you are the victim of an armed robbery, should the competing claims of the robber, who wants your money, and you, who wants to keep it—two “extreme” positions—be resolved by a “compromise” that awards the gunman half the money in the wallet he stole from you?

Most people would sensibly see the absurdity in forging such a compromise between the mugger and his victim. But that’s exactly what’s at stake in the zoning issue. Property rights—whether to your land or your money—are moral absolutes; i.e., “extremes,” as all principles are. You either possess property rights, or you don’t. Absent the protection of property rights, any special interest’s demand to dictate how your land may be used would be just as legitimate as the mugger would have in the compromise presented above. That’s why, by the very nature of central government planning, zoning boards must of necessity run “roughshod over individual private property owners.” By the nature of rights, to recognize property rights is to trump the validity of zoning boards power to dictate use of private land. By definition, rights protect your freedom from aggressive—i.e., initiatory—government force against you. By definition, then, absent evidence of actual or intended rights violations, the government may not interfere with your property usage. That’s why defenders of government land use planning must never acknowledge, in any fundamental way, private property rights.

Ariac decries “extremes” and waves the grand banner of “compromise.” But there is one extreme that he won’t compromise on—the one and only absolute; the power of the state to govern land use. Ariac states, “The impediment has been our ability to embrace a well-crafted balance that replaces greed, political posturing and self-protectionism with moderation, teamwork and an educated understanding of the value (or even necessity) of diversity.” Replaced by whom? By state bureaucrats. “Extreme positions,” “narrow minds,” “greed,” “political posturing” and “self-protectionism” will all be somehow brought into “balance” by omnipotent (?) government officials. These central planners will have the “great power” to decide what “makes sense”—who can or can not “afford to live” where; who can or can not build what, and where; and even what constitutes acceptable profits vs. a “windfall profit.”

Ariac’s defense of zoning powers presupposes the legitimacy of the “great power” to “govern land use.” That legitimacy must be challenged at its root. Zoning is a political power; which means a legal power; which means, the power of the gun. A proper government certainly should be the sole holder of legal power in order to exercise its proper defensive function of protecting individual rights, while also maintaining civil order. But that legal monopoly on physical force should never cross the line into aggressive or initiatory force against private citizens. Zoning or land use controls, no matter which governmental agency exercises it, cross that line. The “power to govern land use” is the aggressive power to sit in judgement, like royalty, as private interests come before land use authorities, hat-in-hand, to plead for permission to do what they morally have a right to do—use their land as they see fit without having to answer to outside interests (environmentalists, NIMBYs, etc.) who have their own preferred uses for land they do not own. The “balance” is then to sacrifice the property owners rights to the special interests of others. Based on what criteria? What standard? Political connections? The best-funded interests? Whim? All of the above. It’s not a question of fairness. There is no fair way to exercise an unjust, unfair, illegitimate power. It has to degenerate into a form of jungle rule—survival of the politically fittest.

The principle of property rights is the only standard capable of untangling the “turmoil” of special interest warfare in a balanced—i.e. fair and just—way. If it's your property, you can do what you want with it, provided that the way you use your property doesn’t infringe on the rights of others. If it’s not your property, you have no say on how the owner uses it unless some right of yours is infringed—at which time the government properly steps in, in its role as individual-rights protector, to resolve the dispute.

Implementation of the property rights principle into law can be very complex. It presupposes a proper understanding of individual rights and their origins—no easy educational task in today’s confused intellectual environment. But proper law must begin with proper principles. Only then can conflicting interests be justly resolved.

Related Reading:

How Property Rights Solve Problems—David R. Henderson for the Library of Economics and Liberty

Property Rights—Ayn Rand

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