Another Assault on Property Rights

A group of NIMBY enviro lawyers in Florida is trying to generate support to amend the state constitution. They want to subject major zoning reclassifications to approval by local referendum.

While I’m generally opposed to zoning, for property-rights and practical reasons (zoning tends to ossify the civic status quo), I was initially sympathetic to these guys because I thought their scheme might introduce more openness, consistency and accountability into the politicized zoning process. Let citizens have only themselves to blame for major zoning decisions.

But then I looked at the group’s web site and realized that my initial impression was naive. I had thought that the idea here was to make the system more accountable. However, the referendum advocates appear to be most interested in making the zoning reclassification process so burdensome as to halt development. They want to limit development to only those projects which are approved by socialist master-plans drawn up by unaccountable local-government planning agencies. They believe that a referendum requirement for major zoning changes would make it extremely difficult to change those master plans, and that this rigidity would be a good thing.

At least under the current system property owners have a chance to get zoning classifications changed, even though the process can be costly, corrupt, and arbitrary. But in the enviros’ world, wise planners (people like themselves) know best what’s good for everyone, and the burden of justification is on people who want to do things counter to the plan. Never mind that such people, who are denigrated as “developers,” are using their own money on their own property. Never mind that the concept of master plans has been thoroughly discredited, to put it mildly, by 100 years of experience from Russia to Oregon. Referendum advocates want to make sure that once a master plan is in place nobody else will be able to change it without a hugely expensive fight.

This system is both unjust and unworkable. Many citizens disagree with the planners about priorities, and over time conditions tend to change in unforeseeable ways. That huge open area planners designate today as green space may come into demand for housing or commercial use if an unexpectedly large number of people move into the area in the next few years. Then the question is whether to accommodate the plan to the people or force the people to accommodate themselves to the plan. With the enviros, as with socialists generally, mere people are raw material for their grand schemes, and the answer to the question is never in doubt. (Indeed there would be no point to such centralized plans if they weren’t intended to override the wishes of individuals.) But you can’t sell a system of bureaucratic control in this country by calling it what it is; you have to dress it up in the rhetoric of representative government. So we’ll have referenda and force property owners to pay for political campaigns, without any assurance of success, to be able to use their own land. Call me cynical, but this sounds like a full-employment plan for NIMBY enviro lawyers. What a surprise.

To give a fuller flavor of the mind set of the pro-referendum group, here’s an excerpt from their FAQ:

– Isn’t It A Violation Of A Landowner’s Rights To Reject His Or Her Proposed Comprehensive Plan Change?

This is one of the biggest myths around. Too many elected officials use this myth as an excuse to approve bad development. The fact is that landowners are not automatically entitled to comprehensive plan changes they seek. A change should not be granted unless it will not cause violations in other parts of the plan and is in the “public welfare.” The public welfare consists of all those qualities that make a place desirable: good schools, decent municipal services (fire, waste, police, roads, sewer, libraries, etc.), clean water, and a healthy, clean environment to name a few. For too long local governments have defined public interest and public welfare as letting the growth machine do whatever it wants.

The law is well established that a “taking” of private property occurs only when the particular land use designation attaching to the land deprives the landowner of all reasonable, economically viable use of the property. That means that the landowner can’t do anything with the property. That very rarely happens. The fact that a landowner can’t do what he wants with his property does not mean that his land has been “taken” by the government. That’s why “takings” cases against government over a land use regulation rarely ever succeed.

Don’t you just love the smug arrogance here? What belongs to the government is the government’s, but what belongs to you is subject to negotiation. And don’t fret about property rights: it’s not theft unless we take all of it. (For some reason this argument has not yet been used successfully by bank robbers, but perhaps it’s merely a matter of time.) Your property rights are what we say they are. Everything is subordinate to the government’s master plan. Subjecting private decisions to control by unaccountable planning agencies is “putting the people in charge.” Individuals who want to retain control over their own property are part of the “growth machine.”

Caveat elector.

1 thought on “Another Assault on Property Rights”

  1. I had to read it again and follow the links to convince myself this was Florida and not southern France.

    The “growth machine” is the key concept here. First, growth is bad. Growth is evil. And it’s a machine i.e. it is not the product of demand by people, it is a machine and we are its victims. This concept is as false as it is surprisingly effective. A common complaint in the European countryside is that “big retailers killed small stores”. Claims which justify rising legislation to control and “manage” commercial sprawl. Of course, nobody asks the simple questions : who chose the large retailers over the small ones for more and more of their needs ? Did the big retailers ever drive you to their stores with a gun to your head ? You chose, people. And most small shop owners chose not to adapt. And they disappeared. That’s a form of accountability too.

    Let’s face it : abdication of responsibility sells. And wrapped into some power-to-the-people blather, it just seems hard to resist. I should know. I fell for this stuff for years.

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