Balancing the Pendulum of the
Proper Role of Government
“Still Mine” is a movie based on a true story about a man who "just wanted to build a house"
so he could take better care of his ailing wife. Instead, he ran headlong into the heartless buzz saw of a local government
regulations and about got himself thrown in jail at age 92. Watch the whole movie if you can, but the movie trailer captures the essence. For the original true story, click here.
This movie takes on the proper role of government and regulation in a interesting way, particularly relevant when election season rolls around. I'm a land developer, so I spend a lot of time, money, and effort seeking permission from local governments to build things. I often use that personal experience as a point of reference in defining when government is acting within its necessary and proper role versus exceeding or abusing its authority. But, excessive government control can reach into every aspect of our lives. Although the movie looks at the absurdity that can come from the building permit process run amuck, the same principles apply to all levels and roles of government and regulation from business licenses to anti-donut and soda laws. As time and generations pass, the tendency is for that control to increase or for each next generation to become more and more numb or unaware of the freedoms that have been lost to never ending government scope creep.
Take zoning laws for instance, the means by which my business of land development and building things is regulated. What started around 100 years ago justifiably as a means to protect public safety and to prevent neighbors from harming neighbors has morphed in scope to add two additional elements:
1) Zoning law has evolved from a protection role to a central planning role.
What is the proper role of government? How do you balance property rights of someone wanting to build something versus the rights, needs, and vision of the community or neighbors? Is the role of government to grant rights (permission) to build things? Should the city the ultimate decision maker on what should or should not get built? Or, is the proper role of government simply to protect the rights of others and to prevent harm you might cause with what you build? How much should the market and private property owners have a say in what gets built? I believe a city has a valid role to play in what gets built. The very definition of being a city means shared resources, shared infrastructure, and a shared future that we all need to work together on. However, in my experience, cities tend to push and expand that role in ways that exceed their proper role. It has become common for the desires, needs, and impacts to property owners to be minimized or disregarded altogether. What should be a partnership and mutual respect between government and private property owners becomes the unbalanced heavy hand of government causing unnecessary harm and impasse.
The right to life, liberty, and property is the foundation this nation was built on. In other words, government doesn't grant us these rights. It just helps protect those rights from being eroded or harmed by others. Private property rights are a fundamental American ideal. As with all rights, property rights have limits. My property rights end when they infringe upon or harm the property rights of someone else. But, as long as I'm respecting those rightful and necessary bounds, my property rights deserve to be honored and protected, mostly especially by my local government who is charged with the protection of those rights. Over time, the balance of property rights in America has changed. The control cities have over land use has increased and the rights of individuals to decide the use of their property has decreased. Some of this control is merited based on protecting neighbors and community. But, some of that control has increased so much that the fundamental principle of property rights has been eroded.
Land use regulation (i.e. zoning and building permits) is how government controls or restricts our right to use land we own. In some ways, property rights are actually protected by land use regulation. Our freedoms in general are lost when there is no law or government to protect them. This is seen rampantly in other parts of the world where drug cartels or other lawless and violent mobs are free to do as the please with no government strong enough to stop them. Property rights are the same. With no regulation such as zoning law or building code, people would be free to build whatever they want regardless of harm it may cause neighbors or the public. Zoning law, land use regulation, and building codes protect two important things:
Public safety and the general health of the community. There is a proper role for government to protect quality of life, necessary public services, and to manage the demands on infrastructure.
Protect the property and property rights of neighbors affected by new development and construction. One person's property rights end when they infringe on the property rights of their neighbor.
We have an inherent Constitutional right to property ownership and to use that property for our own benefit. Government doesn't grant those rights. It just protects the public and neighboring property owners from being harmed when we exercises our property rights. However, over the decades, the pendulum has swung to undermine this critical balance. At one time, the starting point was that individuals had a right to use their property and government had the right to regulate for the reasons above. Now, it often feels more like individuals have no right to use their property unless government grants explicit permission to do so. "We the People" have only ourselves to blame for this swing in the pendulum. We get as much or as little government as we demand. And, over many decades of demanding restrictions on our neighbors, we asked for our own rights to become more restricted in exchange.
Now, neighbors have a right to be concerned and protect their own property rights from new development. Remember, one person's private property rights end when they begin to infringe on the private property rights of their neighbor. There are times when a proposed new development is potentially harmful to neighbors or the community and concerns need to be addressed. This protection of others is the original justification for land use regulation. This kind of regulation is valid and necessary. However, knowing where to draw that line can be very difficult. When trying to objectively determine harm to neighbors and community, there are real impacts and there are perceived impacts. There is good data and there is misinformation. There is a lot of emotion involved because people really care about their homes, families, neighborhoods, and communities. That emotion is good because people who care that much make great places to live. But, it can also hinder good communication, objectivity, and balanced decision making. People from all sides (developer, neighbor, city) tend to only see an issue from their perspective. This is about balancing the interests and rights of all sides in a thoughtful, constructive way. But, it is very difficult to make that happen when too much misinformation, emotion, resentment, or fear cloud the conversation. Developers are often asked to do extreme and expensive things that don't really add value or solve problems just to help the optics or politics of a situation. Should neighbors or the city push back on things that truly do cause harm? Of course! Should neighbors or the city try to see the bigger picture and find a balanced, win-win scenario where possible? Of course! The interests and rights of all sides matter. All too often, the political and emotional climate of land use cases is such that the rights and interests of the land owner wanting to build something are all but ignored in the frenzy to accommodate neighbors and please the public.
Every time we run down to city hall and protest someone else's project or demand yet more layers of regulation on someone else's property, we only raise the level of regulatory burden we will one day face when wanting to use our own property. If we make it so our neighbor can only act with permission of the government, then we've created the same bondage for ourselves. The chains with which we bind our neighbor will someday bind us. (See Chains That Bind. Also, see more on the downfalls of Mob Rule.)
Past generations enjoyed much greater freedom than we do today. They could use their property for their own benefit without having to ask for so much permission. Just like in the movie, Craig Morrison “Just wanting to build a house,” my Grandfather in Mesa and cousin Newell Barney in Queen Creek (both now passed on) could remember a time that if you needed a barn, you went out and built a barn. They built houses together in the 1940’s with their own hands, skills, and labor, without the benefit of modern building codes. Both homes are still standing sturdier than any new home you would find today. With that memory of a different time that younger generations don’t have, Newell is mind-boggled at the layers of restriction, regulation, road blocks, “you can’t do that” attitude, and added cost required in our “code and inspection enlightened” modern day.
No, I am not advocating for an end to building codes or zoning laws. Remember, this is all about Pendulum BALANCE. It is just as important to push back the anarchy of no government as it is to push back the oppressiveness of too much government. Zoning law and building codes serve a critical purpose. There are clear circumstances where land use regulation and restraint truly does by necessity protect the property rights of neighbors and the good of the community. However, it takes a wise elected official firmly grounded in Constitutional principles with a strong understanding of property rights to know how to strike the right balance. Some act entirely for the benefit of the general public, neighbors, or the community. That is just as wrong, unethical, and unbalanced as it would be to act entirely for the benefit of the individual property owner with no regard for the neighbors or the community.
Please, consider this balance wisely when choosing who to vote for. If you vote for the heavy hand, be prepared for the weight of that hand to come down on you sooner or later. I support people who understand and govern by proper balance: Just enough governance to protect public safety, community health, and the property rights of others, but not so much that individual liberties are needlessly eroded away.
One final thought on this. For now, this shift primarily applies to property in the form of land. Imagine if the pendulum continues to swing and other forms of property (i.e. personal items, other types of products or services you produce in your business, intellectual property, or cash) get pulled into that same realm of "you can't use it without government permission." Consider this quote by Ayn Rand: "We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force."
2) Who really owns property, the individual or the city?
As described above, land use regulation should be all about protecting neighboring property rights and the health of a community. However, over time this authority to control individual property has evolved into something more. First, some background. Over the past several decades, cities have put a huge amount of effort into to long range master planning. That is a good and necessary thing in terms of creating better quality communities and long term vitality. Smart planning helps government better manage amenities, services, infrastructure, and transportation. Part of this planning is for a city to be aspirational in the types and balance of land use mixes. For example, in order to create jobs, certain amounts of employment oriented land is targeted. In order to create retail sales tax revenue and commercial service amenities, certain amounts of retail and commercial land are targeted. This kind of planning is key for a city to achieve a healthy mix at build out.
However, this planning process has some challenges:
First, as important as the planning and projection process is, these aspirational targets are made for many decades out in the future. It is impossible to predict what kind of market dynamics will actually support those aspirations. Who could have predicted just 20 years ago the massive cultural changes brought on by the Internet? Amazon alone has completely transformed the amount and type of bricks and mortar retail the market demands. Planning, especially long range planning MUST come with flexibility to adapt to changing and unforeseen circumstances. Sticking rigidly to an outdated plan does no good for anyone.
Second, more challenging is that the city doesn't actually own the land they designate for these future uses. If they did, it would be much easier to "wait and see" if the market will eventually support the target uses. They would still have to answer to the tax payers that would have to foot the bill for holding a piece of land and waiting. But, since they rely on holding private land aside for these targets, owned by families, individuals, and investors, conditions for a difficult conflict are made. Essentially, the city has now taken control of private property against the wishes of the property owner for the benefit of the city. This introduces both ethical and Constitutional challenges. Often these land use desires cities put into their masterplan are either many decades out from market viability, or will never be viable at all. If a private property owner wants to be speculative with his own property and wait for future market conditions, that is fine. But, when the city wants to do it with someone else's property, at extreme expense and opportunity cost to that person, that can be a huge problem. Cities don't compensate property owners when they hold aside their land for a future city benefit. This puts the city in the difficult situation of potentially violating the "just compensation" clause of the 5th Amendment to the US Constitution: "...nor shall private property be taken for public use, without just compensation."
This begs the key question: "Who really owns the land? The property owner who bought it, paid for it and in the case of families, spent a lifetime working it, or the city?" Some politicians and city staff respect that they don't actually own the property and work to find that balance. They still seek the good of the city, but not at severe expense and burden to the property owner. Others act as if they own the property and should be the one who decides how it gets used, when it gets used, and who benefits from it. They have no concern for the harm they bring to a property owner by taking their land use rights in this way. That kind of politician or staff member is dangerous and ultimately puts all of our individual freedom at risk.
Third, the laws around this planning process have evolved in a way that might seem reasonable on the surface. But, if you applied this thinking to any other kind property other than land, it would seem very onerous. According to most planning laws, in order to build or develop something new on your property, you have to demonstrate how it brings additional benefit to neighbors and the community. If you don't bring "enough" added value, you can't get "permission" to build. Now, there is a valid and proper expectation for property owners to consider and participate in the good of the city (see more below). But, consider the ethical and Constitutional implication when a property owner can ask for a land use that has no negative impacts on neighbors, the city, or public safety, and the request can be denied if the property owner cannot demonstrate enough added benefit to the city. Does that seem fair, balanced, or right? What if that same standard was applied to the use of other things we own besides land? Merely wanting to do something with your property for the benefit of you and your family is not justification enough.
We have arrived at a place where a city can say to a property owner: "We need your property to be used for something the city needs. So, sorry, you can't use it for what you need." Most people would be surprised how much private property sits vacant for years or even decades because a city used its regulatory authority to hold a property off the market for a future need of the city. Even though the property owner still holds the deed, as a practical matter, the city can take functional ownership of the property leaving the property owner to bear the cost of ownership while forgoing the benefits. Yes, that is how the law has evolved to be today. That doesn't mean the law requires city to treat private property owners unfairly. It only means they have been given legal standing through zoning laws to do it if they so choose. Notice in the movie how harsh and mindlessly the city official wields his hammer of "The Law." Laws and the fairness by which those laws are administered are only an extension of what "We the People" have either asked for or at least passively tolerated through our choice of elected officials.
You might think this is all well and good when it happens to someone else, especially if you somehow gain at their expense. But, if you allow your government to have enough power to do that much harm to someone else, it is only a matter of time that it will use that same power to cause you harm too.
Here are projects I've been involved with that grapple with this question of balancing public need with individual property rights. In each case, local governments sought to use government authority to require individual property owners to forego development of their property for things the the city wanted instead.
Hawes Crossing in Mesa, Arizona (In particular note the last two paragraphs. One about serving the general public and future generations, the other about "this is not our land.")
Seeking a Balance, Seeing Both Sides
So there are some the challenges of using government to control what people can do with their property. How do you find that right balance between just enough control without becoming oppressive, unethical, or unconstitutional? As I said, there is a valid role for land use regulations whether they be building codes or zoning laws. Property owners should be prevented from harming a city or neighbors. Not all land use requests are harmless to neighbors or the city. There is a really good reason we don’t allow toxic waste dumps next to houses and schools. Building permits and safety codes comes as the result of a grave, tragic, and sometimes fatal history of harmful and shoddy construction and therefore are necessary for public safety. Additionally, when functioning properly, cities bring significant value and benefit to the properties within a city. So, it is proper AND fair for development projects to benefit the city in return. Development absolutely should pay its way for any costs it incurs on the city. Yes, cities need a vision for quality, economic viability, good design, and defining character that very much relies on good land use policy and regulation. Property owners should play a partnering role in achieving that vision. By purchasing land in or agreeing to annex into an incorporated city, we voluntarily sign up for the restrictions and regulations that help promote those goals that in turn benefit us as individuals and the value of our property. That is much like when we become a member of an HOA through a voluntary purchase of a home in an HOA neighborhood. As much as people complain about HOA’s, they do serve a purpose of “keeping up the neighborhood” just like city regulations and General Plans help “keep up the city.”
But just as HOA’s can shift out of balance and control-hungry neighbors can commandeer an HOA board to the overall detriment of individual home owner rights AND the neighborhood as a whole, the same can and does happen at the city level. Click here for just one of countless over the top HOA stories. It is tough but critical to strike the right balance. Think of balancing a pendulum. With no land use regulation (zoning law), you get the wild west in the 1860’s where you have no protection against your neighbor up the hill putting your family and property in danger by what he does with his land. Without proper oversight, public safety (including the environment we all share) is compromised by dangerous buildings and developments. Conversely, with too much land use regulation, you eventually approach this quote from the Communist Manifesto: “the theory of the Communists may be summed up in the single sentence: Abolition of private property.”
Today we are nowhere near either of those two extremes. However, my belief is that for the past several decades, there has been little danger of the pendulum swinging back toward the wild west. Instead, by our own doing (either through passive complicity or proactive corroboration), little by little we march ourselves forward to more restrictions and onerous regulatory burdens. California is far worse, but given enough time we can be just like them if we allow it.
Though the reasons for regulation often begin as reasonable, left unchecked, they can grow in scope, then take on a whole new life generating results never originally intended, sometimes even becoming harmful.
There was a time when you didn't have to ask neighbors or community permission to use your property. In some cases, that caused serious problems that legitimately needed solutions. That became the origin of all kinds of laws and city ordinances including zoning laws but also regulations about noise, trash, parking, fences, weeds, junk vehicles, animals, structures, building codes, drainage, and so on. Each of these has obvious need and benefit. Today we don't have to ask permission for everything we want to do on our property, but we do have to ask permission to do quite a lot. Ask the question: At what point does that go too far? Doing "anything we want" without having to ask permission doesn't work. But, having to "ask permission for everything" is also a dark place I hope most of us never wants to go. The "Pendulum Graphic" is a way to visually measure that progression against the two extremes and bring the pendulum back into balance. I've written this based on my view that the pendulum left unchecked will naturally move toward too much government control. If the day comes that I feel it is leaning the other direction, I'll post another message warning against the dangers of government being too lax.
Although thoughtful restrictions are an inherent need in civil society, we must never forget, the chains with which we bind our neighbor will someday bind us. So, bind him with care or not at all. When we allow the pendulum to swing too far away from individual liberties for the sake of public needs, the common good eventually becomes common bondage. (See www.ChainsThatBind.com.)
Key to a balanced pendulum is getting the right people on the proverbial HOA Board also known as the City Council. Yes, we need to look at candidates ability to advance the quality and vision of our cities. Yes, we should be careful not to elect people that would advance individual liberties at the cost or detriment of our cities, and neighbors. But, because of the continued pressure to move the pendulum farther away from individual rights, I consistently seek out and support candidates whose natural inclination is to keep the pendulum in check rather than advance it toward more government.
It seems so much easier for elected officials to push the pendulum one notch further toward more control, yet, harder to pull it back. The starting point for some elected officials is: “There aren't many problem that government can’t or should’t try to solve.” I support people who’s starting point is: “Government should only solve problems within its proper and limited role, and never at the expense of individual liberties.” It is surprisingly easy for an elected official to expand the reach and role of government, yet, nearly impossible to dial it back. That is why the natural, unchecked inertia of the pendulum is to grow, not shrink government. Instead of being easy, it should actually be hard to expand government. That happens best when there are elected officials who constantly gut check ideas, even ones that sound really good, against the true and proper role of government, then push back when needed.
Some people vote for the person they think will give them the most. People do it. Corporations do it. Special interest groups do it. That is the pressure that keeps the pendulum moving toward a bigger and therefore more controlling government. Instead, I often vote for people I think are likely to hurt me the least. Yes, I do look for people with vision, leadership, and community building skills. However, I always go to the ballot box wondering who will do the least harm in terms of eroding individual liberties and nudging the pendulum toward excessive and inappropriate government control.
Who we elect has everything to do with how much we slow the march of that pendulum and from time to time even pull it back a notch or two toward the balanced middle where individuals do not harm the community and the community does not harm the individual. Even better, a balanced middle where cities and individuals can work together as the true partners they ought to be in building a better community.
Jason Barney
August 2014/Updated November 2019, April 2021
For a comical look at city regulations, check out this ridiculous Sponge Bob Square Pants episode that has some of these same goofy themes. Mindless regulation. Mindless enforcement. Putting the fate of local business at the arbitrary mercy of popular vote for no good reason. Happens in real life all the time!
We have an inherent Constitutional right to property ownership and to use that property for our own benefit. Government doesn't grant those rights. It just protects the public and neighboring property owners from being harmed when we exercises our property rights. However, over the decades, the pendulum has swung to undermine this critical balance. At one time, the starting point was that individuals had a right to use their property and government had the right to regulate for the reasons above. Now, it often feels more like individuals have no right to use their property unless government grants explicit permission to do so. "We the People" have only ourselves to blame for this swing in the pendulum. We get as much or as little government as we demand. And, over many decades of demanding restrictions on our neighbors, we asked for our own rights to become more restricted in exchange.
So there are some the challenges of using government to control what people can do with their property. How do you find that right balance between just enough control without becoming oppressive, unethical, or unconstitutional? As I said, there is a valid role for land use regulations whether they be building codes or zoning laws. Property owners should be prevented from harming a city or neighbors. Not all land use requests are harmless to neighbors or the city. There is a really good reason we don’t allow toxic waste dumps next to houses and schools. Building permits and safety codes comes as the result of a grave, tragic, and sometimes fatal history of harmful and shoddy construction and therefore are necessary for public safety. Additionally, when functioning properly, cities bring significant value and benefit to the properties within a city. So, it is proper AND fair for development projects to benefit the city in return. Development absolutely should pay its way for any costs it incurs on the city. Yes, cities need a vision for quality, economic viability, good design, and defining character that very much relies on good land use policy and regulation. Property owners should play a partnering role in achieving that vision. By purchasing land in or agreeing to annex into an incorporated city, we voluntarily sign up for the restrictions and regulations that help promote those goals that in turn benefit us as individuals and the value of our property. That is much like when we become a member of an HOA through a voluntary purchase of a home in an HOA neighborhood. As much as people complain about HOA’s, they do serve a purpose of “keeping up the neighborhood” just like city regulations and General Plans help “keep up the city.”
Today we are nowhere near either of those two extremes. However, my belief is that for the past several decades, there has been little danger of the pendulum swinging back toward the wild west. Instead, by our own doing (either through passive complicity or proactive corroboration), little by little we march ourselves forward to more restrictions and onerous regulatory burdens. California is far worse, but given enough time we can be just like them if we allow it.
