Social conflict over property rights: the end, a new beginning, or a continuing debate?

Abstract

The ownership and control of private land is a core social value in the United States. Public planning can be seen as conflicting with this value. The long-standing tension between private property rights and public planning was heightened in the 1990s with the emergence of the so-called private property rights movement. This movement seeks to limit governmental authority over privately owned land through a multi-level strategy of legal, policy, political, and public relations actions. This paper explores the historical basis for this conflict, the legal framework within which it functions, and contemporary policy battles.

The paper concludes that there may be no final outcome to this debate. Property rights activists are impassioned and believe their view of history and law is correct. I argue that it may be best to see debate about land use and property rights as one of the central vehicles for a continual reframing of core values in the American experience.

Keywords:

• land use
• legislation
• policy
• property

Acknowledgments

I want to acknowledge the decade-plus continuing support of the Lincoln Institute of Land Policy for research and training activities in the area of property rights. This paper in particular draws from a paper prepared for the Institute for an invitational national meeting convened to explore their potential activities in the property rights area. However, the Lincoln Institute is not responsible for nor condones the analyses and opinions presented herein; these are mine alone.

Notes

¹I use the New York Times as an example of a reputable national print medium; other sources (the Wall Street Journal, the Los Angeles Times and the Washington Post) paid similar and parallel attention to the events and phenomena.

²Cronon (1983) is commonly cited as a pioneering study documenting the attitudes of Puritans toward the Native Americans use of their land in the colonial settlement period, an attitude which, either sincerely or cynically, understood Indians to not own property because they were not engaged in what Europeans saw as active agriculture and forestry practices.

³These sentiments by Franklin were not isolated. As noted by Brands (2000, 623) “Franklin took a striking socialistic view of property.” Brands (2000, 623) provides these other examples of Franklin's opinions: “All property … seem to me to be the creature of public convention.” “All the property that is necessary to a man for the conservation of the individual and propagation of the species is his natural right, … but all property superfluous to such purposes is the property of the public, who by their laws, have created it, and who may therefore by other laws dispose of it whenever the welfare of the public shall demand such disposition.”

⁴The US Constitution does speak to private property, but just not about land-based private property. What the Constitution recognizes are slaves as property under Section 2 of Article IV, where it establishes the right of owners to have escaped slaves returned to them. Also under Section 2 of Article III, the Constitution establishes a procedure for how conflicting claims to state-based land grants by individuals would be resolved.

It is also worth noting that in the Fifth Amendment the phrase preceding the takings clause states “No person shall … be deprived of life, liberty or property, without due process of law,” making explicit the Locke-inspired link between liberty and property.

⁵Zoning as a police power regulation was preceded by a variety of other, related public nuisance managing regulations, such as those for building codes, height limits, tenement laws, industrial districts, and so on. But prior to zoning these were adopted in an ad-hoc, reactive, and localized manner (see the discussion in Kolnick, 2008).

⁶Daniels and Bowers (1997) is an example of these approaches applied to farmland protection; Nelson and Dawkins (2004) is an example of these approaches applied to urban containment.

⁷Some of the most prominent and discussed examples include the decisions of the Court in the cases of Penn Central Transport. Co. v. New York City 438 US 104 (1978); First English Evangelical Lutheran Church v. County of Los Angeles, 482 US 304 (1987); Nollan v. California Coastal Commission, 483 US 825 (1987); Lucas v. South Carolina Coastal Council, 505 US 1003 (1992); and Dolan v. City of Tigard, 512 US 374 (1994). It is interesting to note that immediately preceding this period the Court in the case of Village of Belle Terre v. Boraas, (416 US 1 (1974)) acted to further expand the concept of public purpose, as expressed in Berman, to include life style. So one way of reading the legal history of this period would be to see the Court allowing government to increase its authority over land use while at the same time clarifying the boundaries at which such action would be understood as improper or inappropriate.

⁸However, even in Lucas the Court provided government with an “out.” That is, the Court noted that its ruling was made with the proviso that the individual's use of land could not violate state-based background principles of nuisance which governed property use (505 US 1003 (1992): 1029). Reflections published on the Lucas case at the time of its issuance include, for example, Callies (1993) and Protos (1993). Within a few years, skepticism emerged as to the case's real impact, see, for example, Cerundolo (1998) and Sugameli (1999). Huffman (2008) is one of many continuing meditations on the case's meaning and influence, in law and policy.

⁹Since then it has gone through a variety of labels – wise use movement, land rights movement, property rights movement – settling on a version of the latter as the most generic (Brick and Cawley 1996; Yandle 1995).

¹⁰The states have always been central players in the land use drama. It is they who have residual authority under Article X of the Bill of Rights for land use, which in turn leads them to adopt enabling legislation passing this authority along to sub-state governments. Even under the Kelo decision (see the discussion below) the Court made explicit that its decision applied to an interpretation of eminent domain authority as authorized by the US Constitution, but that states could further interpret and restrict this authority as they felt it to be appropriate and as it fit within state constitutions and law: “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power” (545 US 469 (2005), 489).

¹¹The following paragraphs draw heavily from Jacobs (1998a, 1999b). See White (2000) for one updating of this research.

¹²These lessons are drawn from the national study funded by the Lincoln Institute of Land Policy and reported in Jacobs 1999b, and summarized in Jacobs 1998a. A state which exemplifies point number two is Kansas; a state which exemplifies point number three is Mississippi.

¹³ Boundary Backpackers, et al. v. Boundary County, et al. 913 P. 2d 1141 (1996) is the legal case; the county movement was profiled on the front cover of Time magazine on 23 October 1995, under the title “Don't Tread on Me: An Inside Look at the West's Growing Rebellion,” focusing on the resistance and defiance activities of a group of residents in Nye County, Nevada.

¹⁴It must be noted that whether or not the people of Oregon have indeed spoken with regard to their frustration seems to be belied by subsequent public opinion surveys which suggested many voters did not know what they were voting on, or what its impacts would be for land use activity in Oregon.

¹⁵Research suggests that these laws have neither substantively changed public administrative practice nor seem to fundamentally matter to the public and its representatives. What these laws have done is push the planning process to be more transparent and more participatory. However, at the same time, survey results suggest that respondents perceive the property rights movement to have continuing and enduring strength (Jacobs and Bassett 2010b).

¹⁶Clearly, some of the bases for the ability to overturn Measure 37 were its land use and fiscal impacts. By the fall of 2007, more than 7700 claims had been filed under Measure 37, seeking land use development permission for a total of 800,000 acres, and claiming potential damages from state and local government in the area of $17 billion!

¹⁷The following three paragraphs draw from parallel text in the noted article.