Steven Greenhut Sr. editorial writer and columnist The Orange County Register [email protected]

In last Sunday's column, I criticized a scheduled referendum in Santa Ana that will decide whether developer Michael Harrah will be allowed to build a 37-story office tower on his own property. I defended the project on the basis of age-old concepts of property rights.

The angry responses the column provoked were a stark reminder of how watered-down the concept of private property rights has become.

No longer do most people subscribe to the view that we can use our property as we please, provided we don't cause direct harm to our neighbors. The new view is that "experts," "stakeholders" and voters have the ultimate right to decide on anything that gets built in their community.

It's a tad frightening, and the destruction of property rights is a metaphor for the destruction of other rights throughout our land, as the concept of natural rights has morphed into a concept of raw power. You can do what you want as long as it is affirmed and tolerated by the majority or the experts or politicians, who know few bounds to their authority.

"Strange that Mr. Greenhut continues to fancy himself as a planning expert," opined a San Juan Capistrano planner, in a typical response. "Neighborhoods and their residents inherently condition the rights of their own. The 37-story One Broadway Plaza would dwarf its historic low-scale neighborhood, bringing to Santa Ana ominous shadows and funny breezes expectorated from tailpipes."

I'm not sure what it means to expectorate funny breezes from tailpipes, but I do know that this describes the essential thinking of those who distrust the freedom of individuals. The experts are the only ones capable of deciding such complex matters. How dare I, as a non-expert in planning, continue to write about the subject?

The letter also reflects the majoritarian thinking prevalent among residents everywhere: Your property rights are dependent on the opinions of your neighbors, who "condition the rights of their own." They get to decide what should be built anywhere around them, even though the property will not cause direct, measurable harm to them or their property.

"How can a man who hates public transportation and village-type mixed-use development love skyscrapers?" the writer then asks.

What I prefer has nothing to do with anything. If Harrah wants to build a skyscraper and pays for the costs of traffic mitigation, he should be free to build it. Village-type mixed-use developments are nice, as are suburban-style car-dependent developments. My concern isn't with the type of development per se, but whether the development emerged from the market - i.e., individuals acting freely - rather than flowed mainly from a government-imposed central plan.

Granted, every type of development has some level of planning behind it. But even within that framework of general plans and zoning, some types of development are driven mostly by market conditions and others are driven mostly by government preferences.

Had the city of Santa Ana decided to pursue a high-rise and chose to find a developer to build it, I would be against the project. Harrah decided to build this on his own, and is not taking subsidies for this project or benefiting from eminent domain. Therefore it is fine.

"Certainly the land belongs to the owners, and as long as his use of the land does not affect anyone else, in any way, the owner can do anything he wants on it," wrote another planner in an e-mail. "But the second his actions impact anyone else, in any way, he runs the risk of infringing on the rights of others, in this case many others."

When the writer added the words "in any way," she transformed a fairly traditional property rights approach - I can do what I want on my land, provided I don't harm others - to a radical idea that in fact would obliterate the reasonable use of property.

One does not have the unalloyed right to do anything one wants on one's own property. But the harm to be mitigated must be specific, and not based on aesthetics or, say, on the addition of traffic on public roads. My neighbor might not like the style of my house, but that doesn't give him a right to dictate a different style. Building new houses on open land near my neighborhood will of course create more traffic, but if that alone gives me the right to veto the new homes, then property rights are gone.

On a separate note, it's surprising that so many planners are against this new skyscraper, given that the hot new planning theories, Smart Growth and New Urbanism, seek to further urbanize America, and view building up as the best alternative to building out.

Smart Growthers are committed to using the government to force us into densely populated urban villages. New Urbanists insist that they are not for coercion, but they aren't fooling anyone. New Urbanism can flourish as a market-driven alternative to suburban sprawl but I have yet to meet a New Urbanist who does not also support coercive measures such as growth boundaries.

Their goals aren't necessarily bad: central urban cores punctuated by high rises, tree-lined streets within walking distance of shopping and restaurants, open land between cities. The problem is the totalitarian way supporters want to impose those goals on society.

They want to limit my ability to buy a single-family home with a yard, because they don't like the looks of what they unthinkingly and unfairly call "suburban sprawl."

The goal is improving their aesthetic preferences, not creating the most satisfaction and freedom for the most people. I doubt the planners will give up their big homes and join the rest of us in the cramped, yardless apartments they want us to live in.

But what do I know, given that I'm not an expert?

When New Urbanists support the removal of government rules that restrict the creation of urban-village style developments, I'm with them 100 percent. I'm with them also when they talk about removing barriers to developing properties in older urban areas, which tend to be more highly regulated than exurban regions. That's an argument, though, for less land-use regulation in general, not for more of their kind of regulation.

The problem with the "property rights" view expressed by the New Urbanists/Smart Growthers is the same problem expressed by the opponents of the Santa Ana high-rise: It is not based on the constitutional view of private property. It is based on power politics. Those who control local councils and boards of supervisors will get to impose their view on others. Those who are successful at launching an initiative campaign can likewise impose their aesthetic on the community, oftentimes stripping the property owner of the value of his land, without compensation.

Sometimes high rises will be favored, other times they will not. It all depends on what the experts and the NIMBYs favor.

Writing in the early 1960s, Jane Jacobs, author of "The Death and Life of Great American Cities," understood the basic tenets of modern land-use planning: "As in all utopias, the right to have plans of any significance belonged only to the planners in charge."