Protecting Your Property


Protecting Your Property

Apr 29th, 2005 2 min read
Edwin J. Feulner, Ph.D.


Edwin J. Feulner is the founder and president of The Heritage Foundation.

A man's home is his castle. Or at least it used to be, before years of property rights started being eroded. But the tide finally may be turning back in the right direction.

A little history is important here. Until about 90 years ago, there was no zoning in the United States. The Fifth Amendment, which states that property can't be taken for public use without just compensation, constrained local governments.

However, court cases and federal intervention weakened that protection, allowing local governments to impose limits on landowners. States and cities were encouraged to act in the interests of exclusion, instead of allowing individuals to protect themselves.

This interference had a predictable outcome. Housing came to be governed not by an efficient free market, but by local governments, which faced pressure from organized advocacy groups.

For example, people clearly liked living in suburbs such as Levittown, Pa. Tens of thousands snapped up homes on small lots at affordable prices. A free market would provide more and more of these homes until consumers stopped buying. That also would help keep the prices of the new homes low.

But advocates of what is called "smart growth" claimed that such developments were unattractive. They used zoning laws to pass restrictions on the number of homes that could be built in a given area. In some places, builders can erect a house only if it's built on five, 10 or even 20 acres of land.

The unintended consequence was further sprawl. Would-be homeowners started looking farther and farther out for affordable housing, in areas that weren't yet zoned. Once-sleepy towns became bedroom communities. But since those homes are scores of miles from downtown areas, the new homeowners face longer commutes. That means more cars on the road and, thus, more pollution.

Another consequence is that groups of homeowners started taking the attitude, "I've got mine. You get yours … somewhere else." They pressured local governments to pass ever-more strident restrictions on growth. In addition to minimum lot sizes, builders are told how much space they must leave in front of, behind and alongside each new house, and how wide any new streets must be. Many communities also mandate driveways and garages and won't allow the mixing of commercial and residential development.

At the same time, these groups press for laws against apartments and townhouses. They don't want high-density housing bringing down property values. Of course, that protection often comes at the expense of poor and middle-class families, which no longer can afford homes in traditional suburbs, and so are forced to look miles and miles away, or remain renters.

It looks, though, as if voters may be getting fed up with all this government "help."

Oregon had been a leader in the "smart growth" movement, having set up growth boundaries to prohibit development outside of specially zoned areas. But last year, voters passed a referendum that requires local governments to either pay those who own land outside the growth boundaries or let those people develop their land as they wish to, even if that means building many homes on quarter-acre lots.

This is really nothing more than a return to our country's long-standing legal tradition of supporting an individual's property rights and housing choices.

"Smart growth" advocates point to neighborhoods such as Capitol Hill in Washington, Beacon Hill in Boston, the Garden District in New Orleans and Society Hill in Philadelphia as ideals. Of course, those areas were built up long before zoning laws came into vogue. They're the result of property rights and free markets.

Maybe, if more states follow Oregon's lead, we'll get a fresh set of beautiful neighborhoods in the 21st century.

Ed Feulner is president of the Heritage Foundation.