The Antiplanner has refrained from commenting on a recent Oregon land-use decision because it turns my stomach and because there doesn’t seem much point. The way that planners view property rights is so completely different from the way economists view them that never the twain shall meet.
Long-time readers will recall that, in 2005, Oregon passed ballot measure 37, which restored property rights to people whose land had been regulated by zoning and planning. Under the law, anyone who owned their land prior to regulation could ask for compensation or to have the rules waived. Landowners representing about 1.5 percent of the land in the state applied for compensation or waivers.
Two years later, Oregon voters passed measure 49, which practically repealed measure 37. Under measure 49, landowners could only subdivide their property into three parcels — even if the rules when they purchased the land allowed them to subdivide it into dozens or hundreds of lots. Under special circumstances, measure 49 allowed owners to subdivide into 10 lots. In addition, landowners who had already made a special investment in developing their property under measure 37 were exempt from 49.
Those who have taken an economics class that covers property rights — and not all economics classes do — know that real property rights require three things. First, you must be able to describe the property. Second, you must be able to exclude others from using it. Third, you must be able to sell it. Anything short of this — for example, the right to use but not sell water — is not really a property right. For markets to work, you have to have true property rights — most of what many people call “market failure” is really the failure of the government to allow people to have property rights.
In the recent measure 49 case, the landowners planned to develop their 69-acre parcel into 41 lots. They worked with a developer who invested well over a million dollars in getting the property ready for subdivision and sale. The owners argued that this allowed them to be exempt from measure 49. But the judge ruled that, since the developer had invested the money, not the property owners, the exemption did not apply.
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To rub salt in the wound, a representative of 1000 Friends chortled that “This is clearly a case of a developer with his hand caught in the cookie jar.” He added that “Measure 37 was never intended to line the pockets of developers.”
Why should anybody care whether a development “lines the pockets” of a developer? The real question is, did the landowner have the right to develop their property? If they did, then they should be able to sell that right to someone else — even a (gasp!) developer. If they have the right to develop it themselves but don’t have either the competence to develop it or the right to sell it to a developer, then they really have nothing.
If you believe in planning and that human rights trump property rights, I am sure you see nothing wrong with this. If you believe that property rights are equal to other Constitutional rights, like freedom of speech or freedom of the press, then you see that this is just a horrible way of running a state.
For some reason, many lefties can get irate over the idea of taking away people’s property — with compensation — through eminent domain and giving it to Wal-Mart. But they have no problem with taking away people’s property — without compensation — and using it for some “common good” like open space or wildlife habitat.
That’s like saying it’s okay for the government to censor newspapers you disagree with, but not those that agree with you. Or that it’s okay for the government to regulate mosques, just not churches or synagogues. Or that . . . well, you get the idea. The freedoms in the Bill of Rights should apply universally, not just when it is convenient. The fact that some (including five members of the Supreme Court) can’t see that doesn’t make it right to take people’s property without compensation.
Lines the pocket of a developer
jk:
No! No! No!
It is restoring lost value.
It is a restoration of that which the government stole years ago.
It is NOT a windfall, it is a recovery of stolen property.
(If it helps the progressives, think of it as reparations for land owners, of past thievery.)
Thanks
JK
Those who have taken an economics class that covers property rights  and not all economics classes do  know that real property rights require three things. First, you must be able to describe the property. Second, you must be able to exclude others from using it. Third, you must be able to sell it. Anything short of this  for example, the right to use but not sell water  is not really a property right.
1. Could the property owners in your story describe the property?
Presumably, yes.
2. Could the property owners exclude others from using the property?
Presumably, yes.
3. Could the property owners sell the property?
Presumably, yes.
It is a restoration of that which the government stole years ago.
Are you talking about how the white man stole what we now call “the United States” from the “Native Americans”?
If you buy a car and then years later the car dealer comes along and takes away the radio, engine and windows. I think anyone would have a problem with that.
If I pay for a car and I’m told it comes with a radio, engine and windows, I don’t expect a Planner to come along and take that away.
All measure 37 did was to protect the Property owners from the Government Planners.
That protection is now gone and Government Planners can now take away property rights with out paying for them
Government Planners can now take away property rights with out paying for them
According to economists and the Antiplanner, “real property rights require three things. First, you must be able to describe the property. Second, you must be able to exclude others from using it. Third, you must be able to sell it.”
Which of these three aspects of “real property rights” are Government Planners taking away?
I don’t see how human rights and property rights are at odds at all, even how you describe them, AP. I can see how they’d be misconstrued that way, but that’s just it: the notion is misconstrued. Preventing people from developing their land, as you say this Measure 49 does, in most states would leave the planner without a job. Planning requires growth, and if that is not occurring, planners are among the first positions (especially in government organizations) that get the boot. And this makes sense even – if there’s no growth to plan for, why are there planners?
If you buy a property and you can develope it at the time you paid the full cost of that property for those rights. Then the Government Planners come along and take that development right right away.
That is a taking.
The property had rules how it could be developed before the buyer bought it and both parties agreed it was a fair price and on the government regulations.
All measure 37 did was to give the buyer of a property what he or she agreed to when he or she bought the property.
It is the Government Planners that are changing the rules in the middle of the game.
The property owners in the Antiplanner’s story bought their property in 1969. Why was it realistic for them to believe that “the rules” would be exactly the same nearly 40 years later?
Sorry, but that’s simply an unrealistic expectation. Many laws change over time, not just those relating to land use. Are there any antiplanners around here who want to argue that slaveowners should be compensated for their losses because laws regarding slave ownership changed after they bought the slaves?
If you purchase property with the intention of developing it, you proceed at your own risk if you don’t develop the property for another 40 years. You’re naive if you think you can wait 40 years without your community deciding that it wants to control its land in different ways than it did 40 years earlier.
D4P said
If you purchase property with the intention of developing it, you proceed at your own risk if you don’t develop the property for another 40 years. You’re naive if you think you can wait 40 years without your community deciding that it wants to control its land in different ways than it did 40 years earlier.
—————-
Then the community and or Government Planners should pay the property owner for his or her loss.
Then the community and or Government Planners should pay the property owner for his or her loss
If communities want to vote for and adopt such compensation schemes, they are free to do so.
Oregon voters did that once. Ask them if they liked it.
Are you saying the community has the right to take private property without paying for it?
John Adams
1787 – A Defense of the American Constitutions
“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet’ and `Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”
What a buffoon! What does he know? Who the heck does he think he is anyway? Probably just some Antiplanner wannabe!
(Gee, if only we had the D4Ps and Dans of the world in Philadelphia when our Constitution was drafted . . . what a workers’ paradise we’d all be living in today!)
I’m saying that communities are allowed to regulate property. Whether or not the regulations constitute a “taking” has generally been up to the courts to decide. In the vast majority of cases, the courts (for multiple decades now) have determined that the regulations under review did not constitute a taking.
You are free, of course, to disagree with the courts, but don’t act as if planners are universally taking property without anyone paying attention. Citizens are free to challenge particular regulations or land use decisions, and they commonly do.
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet’ and `Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.
The Bible also says that everything belongs to God, that we shouldn’t be selfish or greedy, that the love of money is the root of all evil, that we should consider others’ interests ahead of our own, etc. The Bible also says that we should pay taxes and obey the government.
“Are you saying the community has the right to take private property without paying for it? ” –Craig
Yes, he is. He disguises it with the world “regulate”. But to regulate someones actions is to restrict. And in doing so you limit what can be done with it; that is, take part of it’s value away.
“You are free, of course, to disagree with the courts, but don’t act as if planners are universally taking property without anyone paying attention. Citizens are free to challenge particular regulations or land use decisions, and they commonly do. ”
— D4P
Why are you arguing that slavery was ok because for so long it wasn’t deemed illegal by the courts?
Yes, the Bible says everything belongs to God. Why am I not surprised that D4P interprets “God” to me “Government Planners”?
We know they think highly of themselves, but geez!
And Adams is not making Biblical admonitions. He’s recognizing that property rights are more than just government inventions. But the Biblical admoniton re: government is NOT “obey the government.” It’s the “render unto Caesar” line. Since the right of property is NOT a government invention but rather a God-given right (if you believe in God; if not, a natural right), then citizens should not arbitrarily lose their property to government. Caesar (i.e., the government) has NO RIGHT to it without the consent of the owner and, at minimum, just compensation.
One last biblical point. The “render unto Caesar” line is really telling the government to LIMIT its authority. It’s not saying whatever the government claims, we must abide. It’s saying government must limit its functions, then citizens can and should support those limited governmental function. Not a blank check. And certainly not a command to blindly abide government edicts. My gosh, D4P, you are such a lackey!
Why are you arguing that slavery was ok because for so long it wasn’t deemed illegal by the courts?
I don’t understand your question, but I’ll say a few more things that might inadvertently answer it.
We’re told by Antiplanners that if someone purchases something under a particular set of laws, and then the laws subsequently change, the government should compensate the purchaser for any reduction in property values that ensue.
Setting aside for a moment the question of whether property owners should have to compensate government (or really, the community) for changes in laws that increase property values, this line of thinking would appear to suggest that people who bought slaves should have been compensated for losing their slaves once slavery was deemed illegal.
Romans 13, 1-2: “Obey the government, for God is the one who put it there. All governments have been placed in power by God. So those who refuse to obey the laws of the land are refusing to obey God, and punishment will follow.
Romans 13, 6: “Pay your taxes, too, for these same reasons. For government workers need to be paid so they can keep on doing the work God intended them to do.”
Again, D4p, why are you arguing that slavery was ok because for so long it wasn’t deemed illegal by the courts?
Or do you no understand the very analogies you choose to use?
I’m not arguing that slavery was “OK”, I’m saying that society had deemed it OK at the time. In fact, slavery had existed for a very long time up until then.
The point is that society changes is mind about what’s “OK” and what isn’t. According to the line of thinking used around here, slaveowners should have been compensated.
“Again, D4p, why are you arguing that slavery was ok because for so long it wasn’t deemed illegal by the courts?”
The claim is that the AP’s logic about compensation for changing regulations, is equilavant to the slavery example. The argument is not that slavery is okay, it that AP’s must think that slave owners should have been compensated do to the change in regulation. After all it was a taking, and an infringement on their property rights(according to the AP philosophy).
Compensation for slaveowners and their descendants:
If it helps the Antiplanners, think of it as reparations for slave owners, of past thievery.
Compensation for Native Americans and their descendants:
If it helps the Antiplanners, think of it as reparations for land owners, of past thievery.
“Are you saying the community has the right to take private property without paying for it? †–Craig
Yes, he is. He disguises it with the world “regulateâ€Â. But to regulate someones actions is to restrict. And in doing so you limit what can be done with it; that is, take part of it’s value away.
No.
The courts have upheld zoning, and takings are removing all economic value. The courts have also upheld all the other quibbles some are complaining about here.
That is what society has said: zoning is fine. We abide by court decisions.
Some here want to pretend the rules are different. Too bad.
DS
And of course human rights trump property rights in our Constitution. Hell-ooo.
The Constitution states life, liberty, and the pursuit of happiness. ‘Property’ never made it there [there’s no life, liberty and property is there? That phrase got voted out]. And property remains undefined, as does the ‘just’ in ‘just compensation’.
Why? Property changes, thus property rights change.
Slaves are no longer property. Nor are women. Nor can lunch counter property owners refuse to serve blacks. Property rights were restricted vis a vis smoking in many of our country’s areas.
Don’t like it? Get over it. Your attempts to change it at the national level failed – the lawmakers caught on. And the next step, the state level, failed too – the public has caught on.
DS
Essentially many people see property rights as a mistake, to be undone, one way or another.
But the bottom line is that as you adopt Venezuelan policies, then you are on your way to becoming such a society. What Americans do not understand is that there is nothing more to American exceptionalism except for a political system that respects individual rights from authority, including the whim of the public.
As I said on a previous post…
In a society where the public can at any time after say 1-2-5-10 years retroactively take back what an individual got in exchange for offering the public some benefit, the motivation of the individual to do productive work vanishes. Why work hard to give the public something, if honoring of the contract and keeping possession of your reward always hangs on the whim of the public? If you’re always one election away from being ostracized and having your reward seized?
In a society where the public can at any time after say 1-2-5-10 years retroactively take back what an individual got in exchange for offering the public some benefit, the motivation of the individual to do productive work vanishes. Why work hard to give the public something, if honoring of the contract and keeping possession of your reward always hangs on the whim of the public? If you’re always one election away from being ostracized and having your reward seized?
So, are individuals doing productive work these days?
the motivation of the individual to do productive work vanishes.
I don’t recall you being able to show that we are less productive. I’d like to see some numbers from empirical studies that shows Murrica is depressed and isn’t working hard.
Sure, these platitudes sound sweet, and poetry, Guernica-quality art and junior high school-level novels were written to exalt this idea, but where are the numbers?
DS
It’s good to see the Antiplanner finally railing against the most pervasive problem in American planning – restrictions against building densely – rather than his usual fare of ranting about relatively uncommon regulations mandating minimum densities.
Dan, sometimes you have to use your own brain to arrive to simple conclusions. What kind of study do you expect to see? “People are 50% less productive if the probability that their compensation will be repossessed rises above 30%†?
But in any case,
If you are personally willing to work for compensation which I can then retroactively repossess at will, please let me know, I’d like to offer you a job.
“The Constitution states life, liberty, and the pursuit of happiness. ‘Property’ never made it there [there’s no life, liberty and property is there? That phrase got voted out]. And property remains undefined, as does the ‘just’ in ‘just compensation’.”
-Dan
The constitution does specifically talk about property. You’re referring to the pre-amble.
At that one can’t have life without property. It’s also a bitch of a time to pursue happiness when you’re neighbors won’t let you have that fuschia with lime green trim house.
If you put a voter in front of a machine where every time he pushes a green button somebody in some other neighborhood gets his house confiscated but the machine spits out an $10 bill, what do you think it’s going to happen? The voter keeps pressing the green button.
We have thus made a contract (the constitution) which says that we will not build such a machine in exchange for other people doing the same. Once this coontract breaks down, things unravel pretty fast.
D4P, If you only use 2 rooms in your house, do you still expect to own all of it in 20 years?
Do you expect to still own your 401K 10 years from now, or can I gather a majority and have it confiscated for the public good? You were not using it anyway, so as long as I confiscate it before you make any use of it, you’ve lost nothing, isn’t it?
D4P, If you only use 2 rooms in your house, do you still expect to own all of it in 20 years? Do you expect to still own your 401K 10 years from now, or can I gather a majority and have it confiscated for the public good?
The courts have routinely viewed the right to own land as a “bundle” of rights that is divisible. I haven’t seen them view houses or 401Ks in the same way.
Rationalitate,
To be honest, I expected more comments from you on the subject. You’ve posted thousands of words pointing out how the 2% of the land surface (urbanized area) is restrictively zoned to allow only 5-10 houses per acre. Here we’re talking about how the remaining 98% of the surface is zoned to less than 0.025 houses per acre and all you white is one paragraph?
D4P, The courts simply implement the laws that you vote. If you vote to reinstitute slavery, the courts will follow.
The constitution does specifically talk about property. You’re referring to the pre-amble.
Ah. I can see I was unclear. Apologies.
As I should have more clearly stated in 24, the Constitution does not guarantee property; I cannot recall today exactly when ‘life, liberty, and property‘ was changed prior to the end of the Constitutional Convention, but ‘life, liberty and property’ was offered, and property was struck and changed to ‘the pursuit of happiness’.
And the 5th Amendment defines neither private property nor just compensation. The Framers, in their wisdom, understood the issues and we as a society discuss this as these things change.
DS
The courts simply implement the laws that you vote
Wrong. The courts interpret the law, and their interpretations change over time, in part to reflect changing societal paradigms, norms, etc.
Ettinger, the USC defined what you’re obfuscating in Nollan and Dollan. Furthermore, Tahoe-Sierra and Lingle clarified things to a greater degree. Nowhere in dicta does the USC say that I can just take your kitchen, mud room, and your POS yard car, leaving you with your wood paneling in the living room. without paying you for it.
Stop your pretend wailing and gnashing of teeth.
To further illustrate the ridiculousness of this argumentation, we see the holdout problem all the time. And prk can go downtown to the Webb Building and see one right across the street, or the next time you’re in Seattle go to the locks and then over to Ballard and see the cat lady’s house, surrounded by condoification.
This is not to say that I think there are no problems with properties outside the UGB, and on multiple occasions, publicly, during the I-933 campaign I called for something to be done about being able to make money on your land outside the UGB. Gregoire and crew have tried to step up on this and perhaps WA is getting somewhere.
DS
Ettinger,
The reason I didn’t respond very much is because this is a very general post – the Antiplanner is ranting against land use regulations, period. The examples are essentially mandatory low-density (which I believe is the first time that I’ve ever seen him rail against mandatory low-density), so I agree with that. What more do you want me to say?
…by the way, I think it’s very misleading to view land use regulations like you do – just add up the available land, and figure out how much is mandatory low density, and how much is mandatory high density. Land is not all equally valued – in fact, what makes land value is almost entirely (in this day and age, anyway) its proximity to other people. Now, I don’t know where you got that 2% number, or what that even really means (“urbanized”? does that include the suburbs and the exurbs?), but I’d be willing to guess that that land would go for very little (meaning it’s in very low demand) if regulations on its use were curbed. For example, I’ve seen foreclosure sales and shit in decaying cities and suburbs where houses (with their land) go for so little money that you can’t help but assume that no one wants to live there anymore at any price, period. And these are places that are [relatively] near shopping and jobs.
The courts simply implement the laws that you vote
Considering the majority of Americans don’t even vote in the presidential elections (okay, so turnout is above 50%, but not when you include non-citizens, children under the age of 18, and felons), it’s more likely that the person in question did not vote for the law. Furthermore, the courts implement laws voted in by somebody, but that somebody is likely to either be dead or that bitchy old lady down the street who’s always ranting about how in her day Coke cost a nickel.
Last one.
Ettinger – as D4P points out – doesn’t like the laws, and wails about judges going willy-nilly all over the place.
I’d say the USC is very strict about going with precedent, even when precedent is screwed up, as in Penna Coal. Now clearly in Penna Coal a corporation – not government – made some monkey business with another property that caused harm to that property owner. Coal and profit were seen as the public good and the action was let stand, so if you want to assign blame, go there IMHO. But Mahon still had economically viable use of his land, didn’t he?
DS
Dan, the usual smoke and mirrors technicalities.
The bottom line is, “we’re the voters, we’re the majority, we can do it, and so we do itâ€Â. The only moral restraint is the fear that what goes around may come around (in other forms usually, like “those damned liberals! they must be the ones who support gay marriage! I’m voting against it even though I have absolutely nothing at stake – I call it revenge regulation and it plays an important part in accelerating a society’s descent into serfdom).
Changing regulations is a taking that the courts have usually approved with no payment required. However, in the future, developers in that area must charge more for the risk. In the end the population pays for the taking caused by the new regulations.
The problem with this whole debate is that it began with the assumption that land ownership passes all three of the property rights tests.
“Second, you must be able to exclude others from using it.”
You can’t do that with land because you are “leasing” it from it’s ultimate owner = the government. Either leasehold or freehold (free from annual leasing payments).
If I leased an electric car from GM for 40 years and the lease agreement gave me the right to purchase for a specified sum at the end of the lease I would not expect GM to unilaterally change the agreement and refuse to sell me the car. I don’t know whether the courts would uphold GM actions.
An interesting description of how a much stronger measure 37 like law has been in effect in Israel for the last 60 years. Even collateral property devaluation to properties not directly affected must be compensated (“Varon v. Jerusalem Local Planning Commâ€Â).
Do Israeli property owners have to compensate the community when community investments increase property values?
That argument can be valid so long as decreases and increases in value affect the same person.
Otherwise, a state where it is ok to harm somebody so long as somebody else benefits, represents an ominous legal environment. That is a society where one is always subject to confiscation of the fruits of their labor. I cannot imagine that anyone believes that individuals in such a society would be very motivated to do productive work.
The bottom line is, “we’re the voters, we’re the majority, we can do it, and so we do itâ€Â.
So you don’t like democracies. Get over it, you live in one.
DS
We live in a republic or representative democracy with individual rights.
That seems to be changing with people like DS.
Our founding father feared a pure democracy because voters would eventually start voting to take away individual rights of the minority in favor of the majority or collective.
I do like democracies but try to ultimately Tiebout away from those that do not address the problem of ostracism and its variants, generally known as the tyrrany of the majority .
Read “…in which decisions made by a majority under that system would place that majority’s interests so far above a minority’s interest as to be comparable in cruelty to “tyrannical” despots.â€Â
That seems to be changing with people like DS.
No.
I do more to give voice to the democratic process in a typical day than you do in a month of writing letters to the editor.
Like I said, get over it.
Or find a way to somehow make your ideology compelling to something other than a small minority.
DS