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INSTITUTE | ADVANCING THE CAUSE OF IN UTAH

PUBLIC POLICY BRIEF The Fundamental Right to Use One’s Own

SUMMARY

Property were an essential and funda- subordinated to the of the . They mental pillar of the American experiment, and are frequently mentioned on the campaign their usurpation and violation were among trail, in academia, and in debates over political the reasons listed in the Declaration of Inde- theory, but in actual practice, property rights pendence that justified separation from Great are not what they were initially intended to be. Britain and the formation of a new country. While many states constitutionally protect the Unfortunately, at all levels of right to acquire, possess, and protect property, this country have become just as oppressive no state recognizes one’s inalienable right to on this issue as the King once was; property actually use it. The need is great, and the fix rights, though widely regarded as a core is easy; Utah now has an opportunity to be aspect of good , are routinely a leader in restoring and protecting this right.

An oversight in constitutional protection has allowed the government to routinely violate the right of individuals to peacefully use their property as they see fit. PUBLIC POLICY BRIEF | THE FUNDAMENTAL RIGHT TO USE ONE’S OWN PROPERTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

rom the outset of this country’s From Euclid to Ephraim has been by the , the use is specifically permitted Ffounding, rights committed to the and by ordinance. That approach have been a foundational tenet of It was in this atmosphere that the discretion of the governing body is diametrically opposed to the public policy—indeed, many of the small town of Euclid, Ohio, found of the city [as part of its inherent common followed in Utah…. leading political of the NOTES itself thrust into the national spotlight powers]. As long as that Because zoningLeh iordinances City Gen eral Plan Use Map i. Neighborhood Commercial Nodes (NCN): are considered an overlay designation. time held that pre-existing property Therefore, if a determinatiinon i s themade b y casethe City th atof com mVillageercial land us esof are Euclid v. body stays within the , and are in derogationDate ofAd aop propertyted: Octob er 25, 2011 not apprpriate at any given NCN or portion of an NCN, the underlying General Plan Land rights were the primary purpose Use designation(s) shall aAmblerpply. Realty Co. Euclid was a tiny purposes fixed by the legislature, owner’s common-lawLast Amen drighted: to for which people associated into ii. Planned Unit Developmfarmingent (PUD)/ Pla ncommunityned Residential Devel oonpmen thet (PRD )outskirts Opportunity Are aofs: the will not gainsay [its] unrestricted useProdu cofed bhisy Le hori C ityher GIS These areas allow for clustering of residential development for the protection of prime agricultural lands and Jason DeWitt, GIS Coordinator governments. There is no question environmentally sensitive Cleveland,natural open , wOhio,ith PUD a pwhoseproval. city attorney judgment. property, provisionsJanuary 11, 2 0therein12 iii. Transit Oriented Development (TOD) Overlay: TODs capitalize on confluence of multiple modes Scale: 1 : 40,000 µ that America’s founders considered of transportation, includingclaimed TRAX and Fro nthattRunner , to allow for h igordinancesher density developm ewerent restricting uses should be such rights to be sacrosanct, based and a mix of uses. needed to protect the “character of As a result, municipalities throughout strictly construed,1,7 5and0 87 5provisions0 1,750 3,500 5,250 7,000 iv. Very Low Density Residential Agriculture (VLDRA): applicable current Zoning Districts, Feet depending on the area, include R-1-22 and A-1. RA-1 Zone may be applied to existing on the of Nature and Nature’s in VLDRA of 2 acres or smthealler. community,” arguing that they the state began enacting increasingly permitting property uses should HDR PF

God referenced in the Declaration of v. Very Low Density Residwereential (VL DaR) :valid applicab leform current Zofoni nnuisanceg Districts, control more restrictivePF and overreaching be liberally constructed in favor MDR grantor of property rights, relying In 1916, New York City became the depending on the area, include R-1-15, RA-1, and R-1-22. MDR Independence. These ideals are so and thus a reasonable exercise of land-use . And in a FseriesLEX of the property owner. vi. Low Density Residential (LDR): applicable current Zoning Districts, depending HDR upon an expansive interpretation first to adopt a zoning code. It was HDR MDR fundamental to our American political on the area, include R-1-8the, R-1-1 0government’s, and R-1-12. police power. of cases since then, appellate courts FLEX FLEX vii. Medium Density Residential (MDR): applicable current Zoning District of a U.S. Supreme case to a fairly simple document by today’s A that, in theory, most people is R-2. in Utah have upheld such Unfortunately, in terms of protection ESA assert authority and claim general standards, focusing for the most HDR FLEX ESA do not question them; we often take viii. Intermediate High DenThesity Res iprogressive-eradential (IHDR): U.S. Supreme primarily because they did notFLEX treat of property rights in Utah, the Brown applicable current Zoning District is R-2.5 with PUD approval required. control over the development of part on height and setback rules, FLEX them for granted, and assume they Court ultimately agreed, and property rightsHDR and the right to use case is an exception to the general ix. High Density Residential (HDR): applicable current Zoning See Traverse Mountain property within their . and establishing residential districts District is R-3. FLEX are adequately protected. upheld Euclid’s zoning and land-ESA one’s propertyHDR as a FfundamentalLEX FLEX Ar ea Plan trend, under which basic property x. Agricultural (A): maximum gross density applicable in this A Left unchecked, these policies have within which land-uses that were PF HDR area is current Zoning Disusetrict A-5 .laws in 1926, rights have proliferated, to the detriment—and deemed to be incompatible were HDR PF xi. Environmentally Sensitive Area (ESA): HDR been continually Utah is no different—both major thus creating a PF ESA applicable current Zoning District is A-5. PF direct violation—of fundamental forbidden. With urban development, MDR PF ESA eroded. political parties affirm the importance xii. Main Street Corridor wslipperyest of 500 W to the Cislopety Boundary property rights. it became obvious that some land- at the Jordan River, has been identified on the Map PF MDR SE of property rights in ­­their platforms, for a future Small Area Stuthatdy, whic hhas will inc luresultedde ESA uses were genuinely incompatible. Guidelines for the development of TOD MDR attesting to the fact that they are the corridor. in constant legal VLDR HDR PF in Throughout the colonial era, land- It was, for example, very difficult to ESA xiii. PUD/PRDs are possible throughout LI LDR BP widely held to be fundamental. For tension over how PF the entire City, but are highly BP MDR Utah use regulation was practically maintain nuisance-free residences encouraged in the PUD/PRD C ESA BP MDR MDR MDR HDR example, the Utah Republican Party Opportunity Areas far government PF ESA LDR non-existent. This trend continued in a neighborhood suddenly home C MDR T/M platform states, “The function of can go to control C ESA HDR BP 2 PF To comply with ESA throughout the nineteenth century, to a new meatpacking plant. ESA PF government is not to grant rights, an owner’s use of HDR HDR D LDR the fundamental with usable land passing increasingly i HDR BP T/M HDR g PF but to protect the unalienable, - property. While i PF ta HDR right to own into private . Government President Warren G. Harding’s l D C HDR BP given rights of life, liberty, property, the Court’s PF r MDR supervision of Secretary of Commerce, Herbert and useMU private HDR C C BP and the pursuit of happiness.” The opinion did BP was rare—a policy consistent with Hoover, was an advocate of zoning. MDR property,BP land use ESA Utah Democratic Party platform also authorize zoning NCN the prevailing laissez faire economic Hoover tapped the drafter of New ordinances must Timpanogos Hwy affirms that its members “cherish the as a method of nuisance control, constitutional right, subjectNCN to the Crecognize that ownershipMU entitlesHDR C attitude of the time. Land division, York City’s ordinance, Edward M. BP individual freedoms set forth in the the subsequentLDR expansion by city highest level of judicial scrutiny and HDR development, and use were largely Bassett, to head the group preparing a propertyLDR owner with freedomBP toL DR NCN 3200 North BP LDR RC of the and and state governments has warped legal protection. Utah’s Constitution, C NCN NCN considered a private matter, of the Standard State Zoning Enabling MDR choose what to do with the property the Declaration of Independence.” into a broad assumption of power of course, makes no suchC Rdemand of HDR insofarVLDR as it doesPF not infringe upon concern primarily to the owners Act (“SZEA”)—a framework of laws PF PF and their successors and best left permitting cities to subdivide and that controls land uses that have them, and therefore the government’s the legitimate rights of others. VLDR RC Government in the United States to the “invisible hand of the market.”1 categorize property with different no reasonable nexus to potential interests have often been upheld over HDR

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2600 North NCN NCN s 2600 North of America—municipal, state, or regulations for each zone. Published nuisance concerns. those of the private property owner. e Instead, what currently exists in

W PF LDR VLDR federal—was intended to protect 0

As a result, by the turn of the twentieth in 1924, many states welcomed BP LDR 0 Utah—and states throughout the

2 LDR pre-existing rights, including and Utah’s entry upon the slipperyMDR slope By 1998, however,C the Utah Court 1 century, government administration and responded with unexpected I nation—are cookie-cutter, one-size- LDR especially the right to use property. began with the 1943 caseHDR of Marshall BPof AppealsVLDR started to push back PF of private land had become a more enthusiasm to the new standard. MDR fits-all land-use ordinances that HDR v. Salt Lake City2,1 in00 Nwhichorth the Utah in Brown vs. Sandy City Board of or less technical regimen, regulating During the following year, 19 states— PF CR essentially state, “An owner has LDR The Advent of Zoning and Land- Supreme CourtC opined as follows: C Adjustments. InNC NBrown, the Utah LDR

t PF the surveying and mapping of including Utah—adopted zoning- PF no rightTOD to do anything whatsoeverVLDR LDR t s PF PF VLDR s e VLDR

Use Ordinances Court of Appeals said: e subdivisions, and the laying out enabling based upon the PF with property in this city except that W LI PF MDR VLDR PF HDR HDR W PF 0 BP 0 As to what restrictions 0 and ESA

of utility lines and corridors. Rapid SZEA. The 1926 revision was even PF which this ordinance0 specifically 6 MDR S PF 3 3 ta The advent of zoning and land-use limitations should be imposed Essentially, Sandy takes the t growth and increasing more popular; by 1930, the Act had MDR allows.C Anye use not specifically 1500 North LDR S ordinances led local governments t urban density, however, brought been adopted in whole or in part by upon property, and what usesNCN position thatNCN every use of permitted is expressly prohibited.” to instead position themselves as this hands-off policy into question. 35 state . thereof should be permitted,LDR property VisLDR prohibited unless Most such ordinances now include VLDRA PF PF PF VLDR HDR MU

ESA VLDR LDR PF NCN PF 900 North PF MDR NCN TOD LDR t VLDRA s

PF a VLDR E

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LDR 0 MU 0 2 PF 1 HDR LI C PF PF PF MDR LDR MDR MDR NCN

PF PF CFP ESA PF PF MDR MU Main St Main St C C PF NC A C NCN HDR PF NCN VLDR PF HDR PF MDR VLDRA VLDR PF IHDR LDR PF

LI NCN PF BP LDR VLDRA VLDR PF VLDR PF BP LDR VLDR NCN NCN LI LDR C NCN NCN NCN ESA VLDR

VLDRA VLDRA t t t s VLDR s s t e HDR t PF e e S s

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Legend Railroads Equestrian Trail / Open ROW VLDR - Very Low Density Residential LI - Light Industrial Roads Trail / Open Space ROW LDR - Low Density Residential I - Industrial Water Bodies PC - Planned Communities MDR - Medium Density Residential T/M - Technical / TOD - Transit Oriented Development IHDR - Intermediate High Density Residential PO - Professional Office NCN - Neighborhood Commercial Node HDR - High Density Residential MU - Commerical / Residential PUD/PRD Opportunity Area C - Commercial RC - Resort Community Lehi City Boundary CR - Commercial Regional SE - Sports Entertainment Potential Wetland Areas CFP - Commercial / Food Processing ESA - Environmentally Sensitive Area A - Agricultural BP - Park PF - Public Facilities VLDRA - Very Low Density Residential Agriculture NC - Neighborhood Commercial PUBLIC POLICY BRIEF | THE FUNDAMENTAL RIGHT TO USE ONE’S OWN PROPERTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

“land-use tables” which specifically representative of other land use to regulate or prohibit an owner’s Case in Point the Munn navigated the of any constitutionally recognized list the only “permitted” uses within ordinances: use of property. zoning restrictions and permitting right to use property, the courts are any given zone. According to the Virgin is a small, rural town in regulations, and applied to re-zone unable to overturn this “tyranny of boilerplate language contained in It shall be unlawful . . . to The right to own and use property Washington County, Utah. Home their land. Though the request was the mob.” one such representative ordinance, “if engage in any development, was intrinsic to the founders’ belief to approximately 600 residents, it ultimately approved twice, there was [a] use is not specifically [listed] then use, construction, remodeling, , based on the “Laws of is located along SR-9, the road that significant opposition—including the With no or constitutional it is prohibited.”3 These ordinances or other activity of any nature Nature and of Nature’s God.” Sam leads to Zion National Park. About town attorney advising the council protections to dictate another course and the use tables they contain are upon the land and improvements Adams wrote that “the natural rights seven years ago, Duane and Susan that they could create ordinances of action, the town of Virgin was now considered to be the source without the required Land Use of the colonists are these: First a Munn took notice of a scenic, 80+ so hostile and costly to land owners thus required to hold a special of rights to do anything with one’s Application approvals or Building , secondly to liberty, and acre parcel of land that was available like the Munns, that they would be municipal election on property within the state of Utah. Permit(s).4 thirdly to property…”5 for sale. Despite not knowing how in effect forced to “take their ball June 23, 2015, in which the “Friends Consequently, most zoning and land- emphasized that “Property must they might ultimately use it, they and go home.” of Virgin” argued that “the right to use ordinances applicable to private Today, this kind of regulatory be secured or liberty cannot exist.”6 decided to purchase the land. develop property is defined within property completely disregard the approach and land-use language is George Mason similarly stated that With the council’s approval, the the parameters of a local ’s concept of and inalienable commonplace. What it means is that “All men are created equally free Unbeknownst to these new land Munns prepared to develop a small, zoning rules.”8 property rights. according to the express language and independent, and have certain owners, a group of residents, calling very tightly controlled RV park—“Zion of such ordinances, it is unlawful inherent rights, of which they cannot, themselves the “Friends of Virgin,” Sunset Resort,” as they planned to The group succeeded in winning the Instead of merely listing incompatible to do anything with property—to by any compact, deprive or divest organized themselves to change name it. The so-called “Friends of election by a very narrow margin: and prohibited uses, such ordinances engage in any use or activity of any their posterity; among which are the the land-use ordinances, control Virgin,” however, were determined 131 voting against rezoning the list “permitted” uses, and grant nature upon the land—without first enjoyment of life and liberty, with the how others could use their property, to stop any such land-uses or Munn’s property, and 116 voting in the conditional right or entitlement getting a permit from the government. means of acquiring and possessing and prevent any future commercial development in the area. They filed favor. A slim majority of residents (subject to first securing applicable In other words, a property owner property, and pursuing and obtaining development. Their success has a referendum petition, seeking to were therefore able, through the permits) to engage in the permitted is prohibited from doing anything happiness and safety.”7 prevented this family from developing give the entire community the right government, to deny this family the uses. These ordinances may list with his or her property without the land ever since. to veto the proposed new land use, right to use their own property as a number of permitted uses but first asking permission, which often These and hundreds of other such and shut down the project. desired. not specifically include such things will not be granted—especially if it quotes indicate a widely held regard As a result, nearby towns enjoy as “swing set,” “jungle gym,” or has not been listed as a permitted for the right to obtain, own, use, significant commercial development, This ability of a “mob” to override The town’s laws now effectively “solar panel,” which means that they use. Governmental entities believe and defend property. Still, it seems while such progress has completely the rights of a property owner was require the Munns to let their land are all prohibited. These restrictive they may require such permission the Constitution’s drafters did not stagnated in Virgin. To this day, it recently upheld in Krejci v. City sit idle, as vacant open space—in prohibitions even apply to such because they believe they have foresee the need to protect property is not possible to buy a gallon of of Saratoga Springs, where the a rural community surrounded by simple things as installing a new ultimate power, and are in effect the rights. The original document makes gas or a loaf of bread within town Utah Supreme Court held that millions of acres of “public” lands. furnace or changing a water heater. source of any and all rights to use or no reference to property. The Fifth limits—and many residents of the the legislative power of the people do anything with property. In reality, Amendment, later adopted after community intend to keep it that way. enables them to forcefully prohibit For more details on this story, please City ordinances typically grant the U.S. Supreme Court decision ratification, states “No shall property owners, through zoning visit LibertasUtah.org/Virgin. government complete control over upon which they rely simply held that be… deprived of… property without Despite the opposition from a regulation, from developing and any and all land uses. Even permitted zoning is a prospective regulation of due process of law; nor shall private small group of vocal neighbors, using their land. In the absence uses often require the property owner nuisance—not a grant of general, property be taken for public use to pay for a permit and step through regulatory authority. without just compensation.” several bureaucratic hoops in order to use their property in a way that is The Root of the Problem Because the view of property rights already listed as permitted. Failure has deteriorated to the point that to comply with these requirements, The degree to which government they are not recognized and treated even for a permitted use, typically has encroached upon private as fundamental constitutional rights, means that the land use or project property rights can be primarily property rights are now scrutinized can be forcefully terminated, along attributed to inadequate reference under a much lower “reasonable with inevitable fines being levied. and explicit protection in federal and rational” standard, rather than and state . Without the “compelling ” standard Consider the following language these protections, the government that normally applies to clear-cut from one county in Utah, generally need only have a “rational” reason fundamental rights. PUBLIC POLICY BRIEF | THE FUNDAMENTAL RIGHT TO USE ONE’S OWN PROPERTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

State Constitutional State Constitution References to the Protections 26 PROPOSED UTAH CONSTITUTIONAL AMENDMENT 23 Under the Tenth Amendment to the 22 ARTICLE I, SECTION I [Declaration of Rights] Constitution, the issue of land-use “All men have the inherent and inalienable right to enjoy and defend their lives and ; to acquire, possess and regulation naturally falls to state , use, and local governments, and as protect property; to worship according to the dictates of their ; to assemble peaceably, protest against wrongs, such, we might expect to see state and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of constitutions offer clearer recognition that right.” of and protection for property rights. Unfortunately, this is only true of about half of the states—and even States of Number In an effort to be proactive in correcting the inadequate approach to protection of private property rights, and help fix the then, they all fall short on protecting 1 problems that have been outlined, Libertas Institute proposes that the Utah Legislature should pass and submit to voters the the right to actually use property. Acquire Possess Protect Use above constitutional amendment proposal. Like many states, Utah’s Constitution It may seem at first glance that the The property rights provisions in recognizes that “All men have the existing constitutional language is Louisiana’s Constitution are therefore This amendment would include the peaceful use of one’s property as a fundamental right, subject to the same compelling inherent and inalienable right to… sufficient, but a closer look reveals functionally meaningless. standards of protection as other fundamental rights. Upon passage, government may still engage in and acquire, possess and protect that to not be the case. Affirming other regulatory takings, but its argument for doing so must meet a higher legal threshold than a mere “reasonable and property….” This language is the right to acquire (obtain), possess Utah’s elected officials should reflect rational” standard. borrowed from George Mason’s (own), and protect (defend) property on whether the current situation is Virginia Declaration of Rights—a does not include the corresponding one that comports with the intent The Utah Legislature should also require political subdivisions using land-use ordinances to revise them as necessary such document written in 1776 that right to actually use the property of America’s founders, the spirit influenced many others, including according to one’s wishes. As such, of Utah’s pioneer settlers, and the that they: Thomas Jefferson’s draft of the the government has historically been inalienable rights of each Utahn Declaration of Independence. able to regulate or prohibit land use today. While the government may 1. recognize an owner’s fundamental right to property; for any reason it desires, without need to restrict land use—or take 2. specifically list restricted or prohibited uses, rather than enumerating permitted uses (and therefore prohibiting all other Unfortunately, since the early needing to define a compelling one’s property—in certain cases, this uses not specifically listed); and American colonists could not envision state interest. An individual’s narrow necessity does not justify a 3. conform to the specific and unique needs and circumstances of the political (so as to avoid copying and today’s regulatory regimes, this right to peacefully use his or her general, pre-emptive control over pasting model ordinances or regulations from other cities). language unintentionally falls short own property has therefore been land use generally. The right to use of elevating the peaceful use of subordinated to the ever-changing, property, like obtaining and owning This law should allow a two-year grace period to afford time for political subdivisions to research, revise, and adopt the new property to a fundamental right; in democratically-decided interests it, predates and thus supercedes the late 1700s, land owners were not of the state. the government; Libertas Institute ordinances to be fully compliant with state law. required to submit detailed plans to believes that it should be listed the local town council prior to building Louisiana’s Constitution is the among the fundamental rights in Endnotes on their property, nor was their ability anomaly among the several states, Utah’s Constitution. to use their property hampered by as it does reference the right to use 1 R.L. Settle, Washington Land Use and and Practice, 1983. complex and controlling land-use property. However, the relevant Our proposal on the following page 2 J. Craig Smith, “Overview and History of Utah Zoning Law,” April 2014, http://www.smithhartvigsen.com/resources/ ordinances. Given the colonists’ provision is immediately followed by presents Utah with an opportunity OverviewandHistoryofUtahZoningLaw.html. experience with the King taking this statement: “This right is subject to restore the original intent of 3 Section 21-7-1.2, 21, Kanosh Town Land Use Ordinance. property for any (or no) reason, it is to reasonable statutory restrictions constitutional provisions protecting 4 Millard County Zoning Ordinance. Title 10, Chapter 23. not surprising that their constitutional and the reasonable exercise of the property rights—and in so doing, 5 language regarding property rights police power.” As such, the several hopefully encourage other states to Samuel Adams, The Report of the Committee of Correspondence to the Boston Town Meeting, Nov. 20, 1772 6 is couched in terms of ownership. rights listed have been pre-emptively follow suit, effecting widespread legal John Adams, “Discourses on Davila,” in The Works of John Adams (Boston: Little, Brown, 1851), 6:280. They did not envision our day when invalidated, with the “reasonable” protection of this fundamental and 7 George Mason, “The Viriginia Declaration of Rights.” property rights are chiefly—and standard allowing city governments inalienable right and improving a long- 8 “Mayor, developers tout benefits of new Virgin RV park, despite concerns,” St. George News, June 15, 2015. For a detailed routinely—violated in regards to use. in that state to restrict land use imbalanced relationship between legal analysis of this question, see David J. Berg, “Food Choice is a Fundamental Liberty Right,” Journal of Food Law & Policy, without any meaningful restraint. government and property owners. vol. 9, 2013, 173-221, available at: http://www.extension.org/pages/71012/food-choice-as-a-fundamental-liberty-right. PUBLIC POLICY BRIEF | THE FUNDAMENTAL RIGHT TO USE ONE’S OWN PROPERTY

PUBLIC POLICY BRIEF

The Fundamental Right to Use One’s Own Property

FREQUENT RECURRENCE

TO FUNDAMENTAL PRINCIPLES IS ESSENTIAL

TO THE SECURITY

OF INDIVIDUAL RIGHTS

UTAH CONSTITUTION ARTICLE I, SEC 27

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