Not long ago, the conservative state representative for the area where I live in northern Michigan came by the office. He wanted us to know that he opposed the state Natural River law, a successful Smart Growth statute that has enabled people to build their dream homes even as it’s safeguarded the wild character of 16 beautiful rivers in Michigan, including one in our county.
 
A campaign supporter, he explained, owns a canoe livery along a protected Natural River and loathes the idea that the public could make suggestions about how he manages his land or his business.

I wasn’t surprised. “Property rights” is the favored two-word battle cry for those here and all over the country who want to kill promising Smart Growth ideas to protect natural resources, rein in sprawl, and improve the economy.
 
But I was startled by what he said next. The lawmaker asked if I’d heard about the new legislation he was introducing. What’s that, I said. Well, he’s proposed to exempt his friend and other canoe livery owners from legal liability if one of their customers is injured or killed in a canoeing accident.

Wait a Darn Minute
Now hold the wheels. On the one hand you support blocking the public having some oversight on how a business affects a public resource--a river. Yet you want to require the public to lower a private business’s insurance costs to improve its profitability in using that river? How, I asked, can you have it both ways?

And right there it struck me. “Property rights” is a hypocritical fraud.

I hadn’t always thought so. For years I’ve tried to understand developers and landowners who insist that public interference in how they manage private land is a violation of the Constitutional right to private property. Maybe they have a point. After all, who wants to be told what they can and can’t do?

But that afternoon it finally dawned on me that property rights isn’t about advancing a legal or moral principle. It’s about defending the ability to prosper at public expense without bearing any corresponding public responsibility.

It just so happens that the undeveloped farmland, forest, and open space beyond settled areas is the very place where the cry of property rights is heard loudest in Michigan and every other state. Most of the vocal advocates are business executives, developers, and property owners waiting to make a killing on land sales and construction projects that wouldn’t even be possible without the nearby roads, sewers, and schools paid for with the public’s tax dollars. But having willingly accepted the taxpayer investments, even fought for them, property rights adherents then turn around and tell the community to get lost.

No Legal Justification
Property rights advocacy is rooted in the Takings Clause of the Fifth Amendment to the Constitution, which states that private property shall not “be taken for public use, without just compensation.” The language of the Takings Clause is perfectly straightforward. The only instance in which government must compensate a property owner is when private land is physically seized, or “taken,” for public purposes such as building new roads.
 
Since the 1980s, though, right wing legal scholars have advanced a view of property rights and takings that requires government to compensate landowners if a regulation limits the use and therefore theoretically diminishes the value of private property. The United States Supreme Court has consistently rejected this interpretation. In case after case dating to the 1920s, the court has held that government actions, such as zoning or environmental regulations, may restrict some uses of land but it is an effect shared equally and thus not a property rights violation or a taking requiring compensation.

Target: Smart Growth
Although the law is clear, and the hypocrisy of the movement is apparent, that hasn’t stopped property rights advocates from trying to slow progress on Smart Growth in dozens of states. In Michigan, a bipartisan council of experts appointed by Democratic Governor Jennifer M. Granholm reached agreement in August on more than 100 steps the state should take to strengthen cities, curb sprawl in the suburbs, and improve the state’s economic competitiveness. Those worthwhile goals, though, are seen as a threat by home builders who are using "property rights" as a central theme to derail the council’s momentum in the Republican-led Legislature.

Wisconsin’s sensible 1999 land use law, which requires cities and towns to improve their planning, is under attack from property rights groups who want to abolish the statute. The law’s opponents have published such misleading statements about its effects on landowners and the economy that the Wisconsin Realtors Association last August published a paper to help citizens to “distinguish fact from the fiction.”

Property rights leaders also are organizing local resistance to Smart Growth in South Carolina, Massachusetts, Oregon, Washington State, Maryland, Pennsylvania, Idaho, and New Mexico.
 
The Smart Growth movement shouldn’t be deterred because it has history and common sense on its side. The nation rejected the property rights arguments of southern plantation owners in emancipating slaves during the Civil War. At the turn of the century, industrialists argued that property rights gave them the authority to block new government rules forbidding children to work long hours in their stifling factories. Southern segregationists in the 1960s cited property rights as the reason they refused to serve blacks at lunch counters.

Property rights arguments, in other words, have often represented the very worst impulses in our society.
 
The idea of reining in runaway patterns of development, which has taken hold in states from one coast to the other, reflects a much more encouraging value: A commitment by reasonable people to help their communities flourish.

Keith Schneider, a journalist and editor, is deputy director of the Michigan Land Use Institute. Reach him at keith@mlui.org. For more work by members of the Elm Street Writers Group see: http://www.mlui.org/GrowthManagement/gm.asp?pid=2&key=1&sub=4