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The Fundamental Right to Use One's Own Property

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The Fundamental Right to Use One's Own Property LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH PUBLIC POLICY BRIEF The Fundamental Right to Use One’s Own Property SUMMARY Property rights were an essential and funda- subordinated to the interests of the state. 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, governments 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 government, 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 legislature, the use is specifically permitted Ffounding, private property rights committed to the judgment 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 law followed in Utah…. leading political philosophers of the NOTES itself thrust into the national spotlight police powers]. As long as that Because zoningLeh iordinances City Gen eral Plan Land 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 grant, 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 courts 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 spaces, 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 ,zoning 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 properties on the Laws 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 regulations. 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 Court case to a fairly simple document by today’s A systems that, in theory, most people is R-2. in Utah have upheld such regulation 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 jurisdictions. 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. Design Guidelines for the development of TOD MDR attesting to the fact that they are the corridor. in constant legal VLDR HDR PF Land Use 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, God- property. While i PF ta HDR right to own into private ownership. 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 land development 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 Constitution of the United States 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 t PF 2600 North NCN NCN s 2600 North of America—municipal, state, or regulations for each zone.
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