These are Alice in Wonderland times, where limited-government conservatives often defend big-government policies, big-government progressives regularly support deregulation and everyone else is left scratching their heads. “If I had a world of my own, everything would be nonsense,” said Alice in the 1951 Disney version of the story.
Everything in this world does seem nonsensical, especially as we consider the issue of land-use regulation and California’s efforts (led by progressives) to jump-start housing construction by—yes, you heard this right—reducing the role of government in dictating what we can do with our property. Meanwhile, many conservatives have dug in their heels as they defend ham-fisted progressive-era rules that are anathema to our freedoms. It’s curiouser and curiouser.
These conservatives act as if the founders would approve of a system where bureaucrats determine the proper use of every tract in their communities and dictate what owners can do with their land down to the tiniest detail. And where owners must, with tail between their legs, lobby their elected officials for discretionary approval of any building project. They act as if one’s right to use government to control what other people do nearby is in the Constitution up there with the Second Amendment.
Yes, something set me off. I was perusing The Orange County Register‘s Independence Day section, when I spotted my colleague Susan Shelley’s depiction of California Senate Bill 79 as an assault on our “right to enjoy single-family homes.” As she explains, the legislation “would allow the construction of high-rise apartment buildings in areas zoned for single-family homes if the parcel is within one-half mile of transit.…The law would make this ‘by right’ development, meaning there’s no approval process that would allow neighbors to raise issues about the impact of the project.”
There’s so much to unpack. For starters, our founding did not guarantee our right to “enjoy” anything. Enjoyment is subjective. I do indeed enjoy my single-family home in a quiet suburban neighborhood, but I know people who do not enjoy living far from downtown amenities. The founders upheld the right to life, liberty, and the pursuit of happiness. We have the right to own property. If, say, your local code refers to “peaceful enjoyment,” it doesn’t refer to one’s ability to micromanage what other people do—but simply to stop specific nuisances that directly impair your use.
You can move into a homeowners’ association, with covenants that give the designated overseers the right to fine you for keeping your garage door open for too long—but that involves a contract of your choosing. Municipal zoning, however, began in Baltimore to keep African Americans out of white neighborhoods, so it’s rooted in government limits on freedom. It let politically powerful people enjoy their property by restricting others’ ability to enjoy theirs.
Regarding the California legislation, the crucial term in Shelley’s column is “allow.” The bill doesn’t stop property owners from doing anything, but instead allows them to do more things on their land. The other key term is “by right,” which means you could build a project as a right rather than a privilege granted by the municipality. Conservatives should like that, but again these are nonsensical times.
In an ideal world, I control my property—but don’t get to tell other people what they can do with theirs provided they don’t intrude on my actual rights (as opposed to bogus ones that protect, say, my property values). As the late legal scholar Bernard Siegan explained, “There are very serious restrictions upon private property involved in zoning—where people, your neighbors, are telling you how you can use your land.” S.B. 79, which passed out of committee this week, loosens those restrictions.
Shelley believes the bill is “grand larceny, robbing millions of Californians of their right to own and enjoy what they bought, a single-family home in a low-density neighborhood.” Expanding others’ right to develop their property does not rob anyone of anything. Currently, any dyspeptic neighbor can show up at the council meeting and help stop others’ building plans or extract concessions. Talk about larceny.
I’ve attended public meetings, where neighbors object to almost anything. These processes, with input by any self-appointed “stakeholder,” are political. Would you want your home renovation or paint scheme subject to the approval of your neighbors? Democracy is, after all, two wolves and a sheep voting on what’s for dinner.
Zoning is a government-created power, so it’s odd seeing opponents of deregulation act as if there’s some fundamental right to it. As such, the government can change the rules when it chooses. For a better approach, let’s let freedom and markets work—in land use and every other aspect of society.
With S.B. 79, the Legislature is at least reducing the rules and letting Californians exert more rights free from busybodies. To quote “Alice in Wonderland” again, “If everybody minded their own business, the world would go around a great deal faster than it does.”
This column was first published in The Orange County Register.
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