The Utah Constitution states that everyone has the inherent and inalienable right to acquire, possess, and protect property. You should work to respect those rights and their substantive protection by defending an individual’s ability to peacefully use their property however they see fit.
Property rights can be difficult to protect. Different properties are increasingly linked. It is often the case — or, at least, it appears to be — that what happens on one property affects another property. The equation can also become confusing when some wrongly suggest that government regulation should take the perceived impact on property value into consideration. These factors can make it very difficult to understand and protect actual property rights.
For example, nuisance ordinances allow you to regulate activities that harm surrounding property values. Nuisance tradition is rooted in common law and, at its core, has been crafted to protect competing property rights from each other. While these issues could easily lead to lawsuits in the event of an altercation between neighbors, modern regulations are, in theory, designed to preempt disputes and proactively avoid problems.
However, sometimes these preemptive policies can go too far. When restrictions are placed on the activities that can occur on an individual’s property, you run the risk of infringing that individual’s property rights. This becomes unreasonable, and potentially unconstitutional, when the restricted activity is not actually harming another person or their property.
When restrictions are necessary, they should not be based on arbitrary assessments, aesthetic requirements, or mere majority opinions. Any restrictions should be narrowly tailored to address the actual harms involved while otherwise ensuring that people can peacefully engage in the activity where possible.
It can also be incredibly difficult to draw the line between what does and doesn’t impact other people and their property.
Say, for example, you have a resident with an acute hoarding problem. Maybe that doesn’t necessarily constitute a harm. What if their property has attracted rats that are spilling over into neighboring properties? Is there a way to protect neighbors from that nuisance without restricting the underlying activity? It would obviously be unreasonable to set limits on how much property a person can accumulate in their home; regulations should only focus on making sure people’s activities don’t negatively impact others.
As you evaluate these factors, we hope you will consider two important questions: First, is the legal action being considered going to infringe on the property rights of any individual? Second, is there a material threat to neighboring people and their property that needs to be addressed?
Below you will find some insights on answering these questions when they are applied to specific circumstances that you might encounter as an elected official.
“Property is surely a right of mankind as real as liberty.” —John Adams
Case Studies
Local governments are often concerned with preserving the look and feel of their community. The problem is, most of the land making up a local jurisdiction is not owned by the government, but by a diverse set of people with varied backgrounds and interests. This can create a problem for which zoning laws seem to provide a solution.
In the early 1900s, state and local governments began to regulate more areas of commerce, including real property. Some of the earliest instances of zoning occurred in Los Angeles and New York City. Perhaps the most notable zoning case was that of Euclid, Ohio, which worked its way to the US Supreme Court.
In the case of Village of Euclid v. Ambler Realty Co., the Village of Euclid instituted a zoning policy which restricted industrial development. Residents like Ambler Realty, who owned 68 acres of land in Euclid, felt that this policy unfairly harmed their property value — a resistance that highlights how improper zoning is often perceived by those affected as a massive overreach of government power. Though the lower court upheld that assertion, the Supreme Court eventually found that the zoning ordinance was not an unreasonable extension of a municipality’s police power.
As a result of that case and subsequent supporting decisions, local governments have the power to enact certain zoning ordinances. However, just because the Supreme Court has approved such practices in the past does not mean they are necessarily good policies, especially in the eyes of the citizens they affect. Done wrong, zoning can constitute an overreach of government power and an undue restriction on one’s property rights.
One Common Approach: Regulate Everything
The courts have approved zoning ordinances, but that does not necessarily mean they are a good idea. In fact, zoning ordinances have a dark past. At their worst, these regulations have been known to be outright racist.
At their best, they merely reflect the idea that the government knows better than landowners how to best use their land. Confidence in this perspective has led many local governments to be trigger-happy when it comes to zoning regulations.
The results of this enthusiastic approach to zoning has led local governments to engage in central planning and regulate everything from where people live, to how many people live there, to where business can be done, all under the guise of protecting the community.
The US Constitution protects property rights by guaranteeing that private property shall not be taken for public use without just compensation. Traditional takings involve the use of eminent domain where land is literally taken and just compensation is (usually) provided. However, there is another kind of taking called a regulatory taking. This occurs when the government imposes regulations which effectively deprive the property owners of the utility and value of the property.
In 2015, in a small, rural Utah town, Duane and Susan Munn took notice of a scenic, 80+ acre parcel of land that was available for sale. Despite not knowing how they might ultimately use it, they decided to purchase the land. Unbeknownst to these new land owners, a group of residents had organized themselves to change the local land-use ordinances, control how others could use their property, and prevent any future commercial development. The town’s laws now effectively require the Munns to let their land sit idle as vacant open space — in a rural community surrounded by millions of acres of “public” lands.
Additionally, zoning ordinances will frequently include conditional uses — land uses which are allowed but only if certain conditions are met and approval is granted. While there are rare circumstances where perhaps conditional uses make sense, they should not be used as extensively as they typically are.
Ideally, activities should either be clearly problematic and thus prohibited, or they should be allowed. When you increase the number of instances where individual assessments are required, you increase the risk for corruption by empowering government officials to control the fate of a person’s property and thus the exercise of their rights.
When conditional use permits are required, it should not require herculean efforts to obtain the permit. The process should be clear and fair regardless of who is applying.
There will be cases (whether it be for a conditional use permit or a rezoning request) where specific people or entities come before you to request changes or exceptions to your zoning. This is a natural part of having a responsive local government — after all, every parcel of land was initially agricultural, and land uses have evolved repeatedly as population grows and new uses are needed. When reviewing zoning changes, ask yourself two questions.
First, am I treating this person fairly? Am I making a decision that I would make differently if it was someone else asking? Secondly, if exceptions are made, are there broader land use reforms that need to be instituted? Governments are quick to enact regulations but it is less common to see such restrictions reduced or repealed.
A Better Way: Let Issues Drive Your Zoning
The path to reasonable zoning ordinances begins by asking yourself, “Why?” Why regulate where people live? Why regulate how many people can live on an individual’s property? Why regulate where businesses can be located?
Issues arising from actual threats to public health or safety warrant oversight and reasonable restrictions. Outside of that limited scope, the government should stay out and let people enjoy and exercise their property rights.
People sometimes argue that without zoning laws, neighborhoods would have a McDonald’s pressed up next to homes and strip clubs next to their children’s elementary school. While this may seem like an alarming possibility, consider the fact that it would not be a good business decision for McDonald’s, or other businesses, to set up shop in a neighborhood if it would be perceived as a nuisance by everyone nearby. Further, there simply wouldn’t be enough traffic to support such a business in a niche location. In other words, the free market will encourage a sort of natural planning. Scary hypotheticals are not a reason to have the government so involved.
While it is likely not possible for you to completely uproot your zoning ordinances, it’s worthwhile to consider the alternatives. Houston, Texas, is famous for having no zoning restrictions, but that’s somewhat of an oversimplification. Houston has no use restrictions, meaning no ordinances govern what can and cannot happen on a property. There is still planning and there are still regulations, particularly when it comes to matters of health and safety, but zoning does not govern property use.
If there are individuals who are passionate about land use, they can collaborate with other property owners to create land covenants. These covenants are typically written into the deed and are tied to the land. This approach requires unanimous consent from all the involved parties and does not apply the same broad restrictions to unsuspecting parties. This helps ensure that the majority is not imposing their will in the minority, as the only parties affected are those who gave actual consent.
There are all sorts of creative alternatives to zoning. The right approach to planning and land use begins when you ask yourself what harm you are protecting citizens from and if regulating property rights is the best way to do so.
Human beings are endlessly creative, and there is no telling what they will come up with next. This is usually good news, especially when it comes to innovation, technology, and business. However, it does not feel like good news when it comes to your next door neighbor building a racetrack in their backyard. In short, people will try to do what they want, and that can cause a lot of problems.
One Common Approach: Whitelisting Activities
Predicting your constituents’ next move and foreseeing any problems in the community is, unfortunately, impossible. In order to preempt any trouble this might cause, most cities have adopted a broad prohibition on everything. After detailing what is allowed and where, land use ordinances will include a final caveat which establishes that a use of land that is not expressly permitted within a zone is expressly prohibited therein.
From a government perspective, this is brilliant — nothing unexpected will legally happen without your prior approval and oversight. From most other perspectives this is concerning and disturbing; we live in a country where people pride themselves on being free from government restrictions, and yet most cities prohibit residents from using their property in any way the government hasn’t previously thought up and approved.
In most cases, you can get around these restrictions if you apply for a specific permit. The problem then lies in how much it costs in money and time to obtain such a permit. In some Utah cities, a conditional use permit can cost $950 and $150 for decision appeals.
Such expensive and burdensome processes are not an effective way to deter behavior.
This approach usually results in people sidestepping the required processes (and thus becoming criminals) or abandoning their desires altogether, which is quite unfortunate.
A Better Way: Presumption of Freedom
Unless there is a compelling threat to the health and safety of your constituents, they should be allowed to carry out their lives free of restriction. In short, local governments should narrowly target behavior they wish to outlaw or restrict, with a presumption of freedom that otherwise steers clear of restricting residents’ conduct. This inverted approach better respects property rights while recognizing the government’s limited and basic role.
When restrictions are necessary, they should be based on objective criteria that do not create broad regulations and outlaw new activities not previously contemplated in law. If you require any approval or permitting, the processes should be affordable, reliable, and prompt.
Any restrictions on what people can do on their property should be specifically built to mitigate real and legitimate harms. In some cases, this means your legislative power will have to be responsive to (and respectful of) new ideas and developments. Ultimately, having a body of law that is forward-looking and freedom friendly is better than having a preemptive body of law that presumes anything unexpected is by default illegal.
Dealing with a community of property owners who own and live in their homes is one thing. You face a whole new set of challenges and problems when people living within your jurisdiction are renting out their property to others on a short- or long-term basis.
One Common Approach: Owner-Occupied Only
Though it may not be in code, there are all sorts of ordinances that can signal to others that your community is designed primarily for individual families who want to own and live alone in their home. Ordinances often create scenarios in which communities discriminate against renters, outsiders, and those seeking creative and affordable housing.
Specifically, ordinances can create harmful effects in areas concerning the number and which groups of people can live under one roof by restricting occupancy based on relation. For example, some cities limit occupancy of a home to a single family or a certain number of unrelated people. They do this by creating single-family dwelling zones and enacting restrictions on the amount of unrelated persons that can reside in a single family dwelling.
While almost certainly well intentioned, these laws can be harmful and increase housing costs. They may prevent students from having the ability to find the necessary number of roommates to be able to afford to live in Utah. Those hoping to rent their property may see their pool of potential renters drop and, as a result, their revenue suffer.
A Better Way: Respond to Harms
Property owners should be free to do what they peacefully want to with their property. That includes renting out that property to another person or group of people.
Whether a roommate is a brother or an unrelated person, that extra individual does not create a different impact on neighbors or government services merely because of the relationship to others in the home. Arbitrary restrictions such as these do not keep city ordinances within their proper scope nor do they adequately protect property rights.
Certainly, the concerns brought about by the notion of short-term rentals, renters, and unconventional residents can be legitimate — excessive noise, parking congestion, and unruly garbage can all threaten the peaceful use or the value of others’ property — but those nuisances would be harmful regardless of who causes them. The restrictions should, therefore, narrowly address direct harm, not activities that are, in some cases, perfectly harmless.
Years ago, your locality likely had a specific feel to it. These characteristics brought many residents who were very committed and invested in the original feel and look of your community.
This can pose a problem: should you work to preserve certain characteristics in your community, using the law to prohibit changes that are different from “the way things have been”?
One Common Approach: Minimum Lot and Unit Sizes
In response to new development and housing demand, many localities have created minimum lot and unit sizes. These regulations create a barrier to entry in your community by only allowing those who can afford a certain size home or lot to join. While people are certainly free to own large homes and properties, they should also be free to build smaller or non-standard housing.
Some cities have arbitrarily mandated that lots may not be smaller than 20,000 square feet throughout most of their jurisdiction. Such broad zoning requirements undermine a property owner’s right to use their property as they see fit.
A lot that is 18,000 square feet, for example, does not negatively impact anyone and should therefore be allowed.
A Better Way: Flexibility For Property Owners
Regulate as little as you possibly can. While there may be some regulations that make sense for a specific location or circumstance, requiring people to build a certain amount of square footage is not the way to achieve common-sense regulations. Any restrictions on lot or unit sizes should be designed in response to a threat of actual harm or concerns regarding the available infrastructure.
It is not the proper role of the government to apply arbitrary restrictions to its constituents’ property that extend past reasonable boundaries. Restrictions that go so far to affect what people do in and to their homes are a clear overstepping of government control.
Your legislative efforts should be grounded in the idea that individuals have the right to peacefully use their property and that government should not arbitrarily or unnecessarily impede on this right, especially in ways that create barriers to entry for those with lower income or different desires.
Conclusion
Protecting property rights and mitigating nuisances can be difficult, but neither should be sacrificed for the sake of the other. Vaguely prohibiting broad categories of behavior in order to guarantee peace is not effective or principled governance. It should only be in rare circumstances that you have to regulate the use of private property, or activity which occurs on private property and does not impact others. Of course, the more difficult question is how to measure impact on others. When doing this, we hope you’ll think back to this chapter and be an advocate for the protection of property rights, ensuring that government restrictions are narrowly focused on actual harm, not preemptively restrictive in the hopes of preventing any potential harm that may or may not occur.
Here are the key takeaways:
- Property rights are a foundational right and worth protecting.
- The government is not the grantor of property rights.
- Any restriction on property rights should be narrowly tailored to guard against actual harm.
- While preemptive regulations might seem helpful, they can quickly become excessively restrictive.