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Private Property Rights and Local Control: Can We Have Both?

New approach to development process needed

Chris Fiscelli
September 15, 2003

Private property rights and local land use control have been linchpins of American society for many years but it seems these ideals, sometimes viewed as complementary, have become unlikely adversaries. At least part of the reason is that these concepts have changed over time. Property rights groups seem to be well aware of their own rights, but sometimes lose sight of others' property rights and oppose development project they don't like. Local land use control, in principle a process that allows local residents to be involved in planning their cities' future, has become a forum for outside activists to block new development. The dilemma is that local control can certainly infringe upon property rights, but pure property rights leaves few options for local land use control.

A key local land use control issue these days is the public approval process of housing and commercial developments. Opposition to growth and development has grown, with resistance to growth in various forms sometimes so severe that it has prompted such monikers as NIMBYs (not in my backyard), LULUs (locally unwanted land use), and BANANAs (build absolutely nothing anywhere near anything). The forces behind this resistance range from concerned local citizens worried about property values and neighborhood changes to environmental groups worried about air quality and ecosystem preservation. Regardless of the motive, the outcome of their opposition is often to deny property owners their preferred use of their land and thus diminish their property rights.

Public officials, recognizing voter concerns about growth, have resisted high-density housing, particularly apartments or low cost housing. Developers are forced to go elsewhere usually further to the urban perimeter where growth opposition is less intense. The result is more sprawl and often housing supply that doesn't keep pace with demand.

So, how might we sustain people's property rights and still exercise reasonable local control that sometimes restricts property rights? Local control must move from the project approval and debate level to a more strategic level. Instead of hashing out each development project in public hearings dominated by activists and lobbyists, cities should provide guidance in broader specific area plans that provide a general direction for the local area. Cities should seek out input from only local neighborhood residents on broad directions for the community, not ballot box zoning or decisions on individual projects. Necessary project level decisions could be left to appointed planning commissions to depoliticize project approvals. Citizens and city councils would get involved when plans are periodically reviewed and changed.

At the same time, property rights activists must understand that rights can be strong, but only up to the point where exercising them does not have a substantial external effect on the community. Residents in a democracy must have some means to chart their communities' course to ensure it reflects some common needs and desires such as valuable community open spaces or parks, public squares, historic buildings or landmarks, and community infrastructure. And when the community wants certain land used a certain way, then the community must purchase that land, its development rights, or an easement for public use.

In many places "local control" has become a euphemism for no or slow growth, and "property rights" a euphemism for no planning. Getting back to reasonable definitions of those terms, and shifting the local approval processes from the tactical to the strategic, will help us retain local control and strong private property rights.

Chris Fiscelli is a senior fellow in urban and land use policy at Reason Foundation



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