Today, whenever the issue of land use is raised, so is the issue of property rights. Obviously, not every land use decision made by a local planning commission is a good one. Nor is every EPA designation of a wetland appropriate. But, as an economic development professional, I have first-hand experience that in order for communities to be competitive in the 21st century economy, smart growth and sensible land use controls are required.

The most common argument those in the property rights movement make is, “It's my property and I have the right to do with it as I please.” Naturally, there is a right to own property, and a right to use property, but neither of these rights is absolute. There is an old principle of law that says "My right to swing my fist ends where your nose begins."

That principle applies to the right of real estate ownership and use as well.

Real estate is unlike any other asset on a number of grounds: every parcel is unique; it is fixed in place; it is finite in quantity; it will outlast any of its possessors; and it is necessary for virtually every human activity. Because of these characteristics real estate has always been treated differently than any other asset in law, lending, political perspective and taxation.

But there are two economic reasons why real estate has always been treated differently as well: 1) the impact of land use on surrounding property values, and 2) the primary source of value in real estate being largely external to the property lines.

If that doesn't immediately make sense, think about that old real estate cliché "The three most important things in real estate are location, location, location." Notice it doesn't say, "The three most important things are roof, walls, and floor." It is a property's location which provides most of its economic value - that is the context within which the property exists - and it is the protection of that context that virtually all land use ordinances are about – whether they are zoning laws, historic districts, or ordinances to maintain viewsheds.

Real estate has economic value, but that value doesn't magically emerge from within the four lot lines. It comes from elsewhere. In real estate economics, four “forces of value” are recognized. These are the factors in the marketplace that move the value of a particular parcel both up and down. These forces are: social, political, economic, and physical.

Every day hundreds of decisions are made by public bodies at every level that impacts someone's property value. In virtually no instance is the property owner entitled to be compensated for that action.

Even the physical force is not confined entirely within the lot lines. Views, infrastructure, transportation systems, and access are all components of the physical force of value, but are external to the property line and are neither created nor exclusively paid for by the individual property owner.

So this concept of "It's mine and I can do whatever I want" is both historically incorrect and economically unsupported. But let's move on to some of the other arguments.

The next argument often made by the property rights advocates is "It's unconstitutional to regulate my land like that." Well, I'm not a lawyer, but:

A) There is a 150 year constitutional precedence supporting the public regulation of private land.

B) If there is a constitutional issue, there is an entire judicial system to which the issue can be appealed.

C) The sheer fact that the "property rights" advocates initiatives are primarily legislative and not judicial is recognition that current land use legislation is constitutional

But if we really want to explore the constitutionality of land use legislation let's take a brief detour into the intellectual and political groundings upon which the American system is based. Probably no one influenced the drafters of the U.S. Constitution more than the English political philosopher John Locke - especially on property rights. He was a vociferous property rights advocate. It is Locke that is usually cited in the more historical of the property rights arguments.

But three understandings of Locke and property rights are important:

1) When he spoke of "property" he was talking about one's own self as well as one's assets. So he was so adamant about rights because of his resistance to tyranny over human rights - one's self was one's "property" of which one could not be arbitrarily deprived.

2) When Locke wrote about property rights and was referring exclusively to assets. However, his ultimate test was the impact of the exercise of that property right on the community - the very basis of land use regulation.

3) Finally, for Locke the reason societies are created in the first place is for the protection of property. What is the reason land use controls are created in the first place? For the protection of property.

When the "it's unconstitutional" argument is weakened, the property rights advocates will default to "It's un-American to tell someone what they can or cannot do with their own property."

Well, I don't know what constitutes "un-American." But if limiting what you can do with your land is un-American then high on the list of un-Americans would be:

1) The Pilgrims
2) The Congress that passed the Homestead Act
3) The Mormon Church
4) The New York City real estate community who got the first city zoning law passed (to protect their property values, by the way)
5) John Oglithorpe and the settlement of Savannah.

Let alone the Native American concept of land ownership. If the regulation of land use is un-American, it's time to reestablish the House Un-American Activities Committee because we have history books full of guilty parties.

The "property rights" movement is the most selectively aggrieved political force in America. Those who loudly proclaim, "It's my land and you can't tell me what to do with it" are quick to appear before City Council when a homeless shelter is moving in next door or a sanitary land fill is proposed next to their cottage. And their argument won't be "I'm against the homeless" or "Waste shouldn't be disposed of" but rather, "That action will have an adverse affect on my property value, and you, City Council members, need to prevent that."

The next of the property rights arguments is: "Land use regulations constitute a "taking" which entitles me to compensation for any loss in value."

If one's property is taken by a unit of government for public use the person is entitled to compensation under an eminent domain procedure. It is also well established that when an owner loses all effective use of his property through regulation he/she must also be compensated.

But what about those instances where a land use regulation simply reduces the value of the land - is the owner entitled to compensation? And this is what is being proposed in most of the "property rights" and "takings" legislation.

There is no question that land use provisions sometimes affect the value of individual properties. Public decisions of all kinds affect individual assets - in both directions!

I happen to live at the Landsburgh (Washington, DC) - a wonderful building with great management - we love our apartment. The Landsburgh is undoubtedly worth millions and millions of dollars. But what would it be worth if there were no water - which the taxpayers paid for - or no sewage disposal - which the taxpayers paid for - or no cops - which the taxpayers pay for - or no Metro - that the taxpayers paid for? Approaching $0.

Likewise the land in rural Montana with REA – taxpayer-funded electricity, or Tennessee farms without the TVA, or ranches in Idaho without county roads.

Most of the value of an individual parcel of real estate comes from beyond the property lines from the investments others - usually taxpayers - have made. And land use controls are an appropriate recompense for having publicly created that value.

But we still hear, "If a government action causes the value of my property to go down, I'm entitled to be fully compensated."

Let me ask you, when was the last time you heard an owner say, "Because of rezoning my land went from being worth $10,000 to being worth $100,000. But since it was the action of the Planning Commission and not some investment I made that increased the value, I'm writing a check to the city for $90,000."? No "property rights" advocate ever said that, nor should they have. Public decisions affect the value of real estate in both directions. It is one of the risks and potential rewards of ownership.

If we really want to compensate every landowner for public decisions that adversely affect their property value, I'm all for it - and I even know how to come up with the money. We'll have a 100% tax on all of the value enhancement of properties as a result of governmental actions.

But back to history for a moment. "Property rights" advocates often hearken back to the days of the Western expansion and the homesteaders as the time when men and women were really free to do as they pleased with their land.
In fact, the most severe and limiting land use restrictions ever enacted by the Federal government were those placed on the homesteaders of the western frontier. To be able to lay claim to their 160 acres, the men and women of the western expansion had to clear, cultivate and live on their land for five years.

Almost no current land use control is that demanding. It wasn't for money that the Homestead Act placed those restrictions. The Federal government paid less than 3¢ an acre for each of those 160 acre parcels - an amount most homesteaders could have afforded to pay. A homesteader was not allowed the option of paying $4.80 instead of abiding by the land use controls. The actions were required because of the recognition of the interrelationship and the interdependence of the properties and the desire to meet the social, political, and economic needs of the sum of the landowners, and the nation as a whole, even if it meant restricting the "freedom" of the individual land owner.

Where did the ownership right to land come from originally, anyway? If you trace a deed back to the earliest entry it will be a conveyance from the government - as representative of the people - to the first private landowner. Where did the government get it? Through conquest, purchase, cession, or negotiation.

The government - and that means all of us - is a prior owner to all subsequent deed holders. And that original conveyance reserved for the government four rights: the right of eminent domain, the right of taxation, escheat (the right to reclaim title if there are no heirs and no will) and the right of regulation (the police power). These four are prior rights held by the people through the government prior to any subsequent owner's individual rights.

Now you'll often hear from developers or their lawyers, "I'm entitled to develop my property to its highest and best use." Well, “highest and best use” is a real estate appraisal concept with a very specific meaning. "Highest and best use is that use which, at the time of the appraisal, is the most profitable likely use to which the property may be placed."

But the key word is “likely,” and the first constraint on likelihood is that use which is legally permitted. If a property is currently zoned General Agricultural, for example, someone who claims their highest and best use is as a resort hotel is either, a) woefully ignorant of the basic concept of what highest and best use is, or, more likely b) is trying to badger public decision makers into a change by distorting the meaning of highest and best use.

Highest and best use does not mean most profitable use imaginable. If it did, we would have topless bars, hog rendering plants, and hazardous waste disposal plants in every residential neighborhood in America.

Another of the property rights arguments is, "Land use controls are made up by faceless bureaucrats in Washington deciding how far from the curb my house can sit and what color I can paint my garage.”

This is an absolutely bogus argument. Virtually 99.99% of all land use controls in America are enacted at the local level by your neighbors - the ones who are most affected by land use decisions. Historically, one of the fundamental premises of political conservatism and Republicanism in this country has been decision making at the lowest governmental level possible. That is where land use laws are presently enacted.

But, since the Contract with America in 1994, there has been a strategy of pushing for the U.S. Congress to limit the power of local government to enact such measures or to make it extraordinarily expensive and risky for them to do so. This a complete renunciation of what the party of Lincoln, Teddy Roosevelt, Eisenhower, Goldwater and Reagan has always stood for.

There are only three types of Republicans who could vote for such a measure: those totally unaware of the philosophical grounding of their own party; those who believe that Washington knows better than the local community - in which case they're in the wrong party; or those who have sold out historic Republican principles to curry favor from the real estate and timber industries and right wing lunatics. As a lifelong Republican let me tell you it ticks me off.

I remain a Republican because I really do believe in three principles that historically have been the basis of Republican philosophy: 1) elected officials ought to be prudent with taxpayers dollars; 2) as many decisions as possible ought to be made at the level closest to the people as possible; and 3) a sense of public and individual responsibility. The property rights movement is an abrogation of all three of those principles.

In the past few years I have heard the concept of "responsibility" touted at the Million Man March and at the Promise Keepers Rally; responsibility espoused by Newt Gingrich and Hillary Clinton; by Billy Graham, Louis Farrakhan, Jerry Falwell and the Pope. I've heard responsibility from inner city housing groups and conservative county commissioners.

"The time is past" they all say, "when we can or should expect government at any level, or corporations or labor unions or white folks or "somebody else" to take care of us. We need to take responsibility on an individual and on a community level for our own actions." There is a broad movement away from what is one's "right" to combine the discussion of "rights" with the obligations of "responsibilities."

Welfare reform is an excellent example. Congressional proponents of both parties said, "maybe a single mother has the "right" not to have her children starve, but she also has the responsibility to look for a job and get trained for the workforce." And public schools, "Yeah, maybe every kid has the right to an education but he also has the responsibility not to be disruptive in class or carry a gun to school."

So there is this widespread agreement about rights being balanced with responsibilities. I believe that is healthy; and it certainly points out the importance of taking the responsibility for our community's economic future ourselves. No one else is going to do it - not the government, not some giant corporation, not the Teamsters. We have the right to chart the direction of our community's economic future and the responsibility to make it happen.

There are two curious exceptions to this concept of balance between rights and responsibilities, however: pornographers and the so called "property rights" movement. Both screech about how their right of free speech or their property right is sacred, but neither wants to accept the responsibilities of free speech or property responsibilities.

I am certainly all for property rights. But who is talking about property responsibilities? This surreal concept that the right to own real estate somehow exempts one from having to balance rights with responsibilities, this Larry Flint attitude of "I can do what the hell I please and the rest of you be damned" is not only alien to 300 years of American political history, antithetical to how the west was developed, and the most blatant renunciation of fiscal responsibility today, but it is the ultimate gimmick to pass on bankrupt cities to our kids 20 years from now.

Those who are strong proponents of so called "property rights" movement tend to be those who also claim to be for fiscal responsibility. We have reached a point where those two concepts are mutually exclusive. Either we are going to be responsible with taxpayers' dollars and have reasonable land use controls or we are going to have a "do whatever you please" land use policy at the expense of fiscal responsibility. And it will be hellishly expensive for taxpayers.
The so-called "property rights" movement is the singularly most misguided, historically inaccurate, fiscally irresponsible political movement of the last half century. It amazes me that elected officials who go home at night and tell their kids "just say no" to drugs can't muster the political responsibility to "just say no" to some of the property rights advocates that come down the pike.

I began by telling you that I was in the business of economic development. The towns and cities that will be economically competitive in the 21st century will be those that pay attention to quality of life criteria, and I would suggest to you that is what Smart Growth is really about.

The sociologist E.V. Walter wrote, "For the first time in human history, people are systematically building meaningless places." The meaningless place will not be the economically competitive place. John Locke, although writing about a slightly different subject, had an even better phrase - "The undistinguishable inane." Without sensible land use controls, the only thing we will have is the undistinguishable inane.

Land use controls are, in fact, a capitalist plot to optimize the property values of the majority of owners, not some communist conspiracy to deprive individuals of some imaginary "property rights."

Adam Smith observed that, "As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed."

That doesn't mean we are depriving them of rights when we tell them no. SLDT