| Wednesday, March 23, 2005
When right to plan belongs only to
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
"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
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
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."
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