Wednesday, October 26, 2011

Property Theory and Land Use, Part IV

Part I of this series is here. Part II is here. Part III is here.

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If, as I discussed in Part II, land use planning and governance serves a truly common good, and not merely individual preferences or collective goods, then a number of important implications follow. In Part III I examined one of those implications, namely that land use planning should consist neither of centralized decision-making nor of purely individual owner sovereignty. Instead, it should involve multiple individuals and associations, both public and private, in collaborative exercises of authority over their respective spheres. Decisions about land use should not be zero-sum games, in which one person’s “good” is sacrificed for some greater “good.” Indeed, because basic human goods are incommensurable, it is nonsense to speak of goods in this way. Finally, I speculated that successful development plans tend to employ this multi-faceted approach.

Another important implication of the common-ness of goods is that the ends for which property sovereigns act—the goods that provide intelligible reasons for authoritative decisions about land use—are good for all and knowable by all. This does not mean that all property sovereigns must or even should choose the same ends. To the contrary, that property enables owner-sovereigns to pursue different goods is one of property’s great virtues. But it does mean that some ends are really good, and other ends are really not good, even evil. Placing a library next to a school promotes the good of knowledge. Placing an adult book store next to a school causes real harm, even if economists cannot measure on any scale the harm caused by the dirty bookstore against whatever good it might achieve.

If this is true then the government’s exercise of its police powers is at once grounded in, and limited by, universally-accessible reasons (what some old-fashioned folks used to call “natural law”). The state cannot simply assert that all of its ends are legitimate. Some ends are rational, and therefore have a plausible claim to legitimacy. Other ends are fully reasonable, and therefore clearly legitimate. Still other ends are simply not intelligible as legitimate reasons for state action.

I recognize that this is an unpopular notion today. But natural law isn’t just for natural lawyers anymore. Prominent liberal jurisprudential thinkers, such as Joseph Raz and Ronald Dworkin, have affirmed the intelligibility of certain basic goods. And the authors of the Progressive Statement began by affirming the incommensurability of certain basic values.

I’ll close this post by tentatively suggesting one state interest that is commonly asserted but is nevertheless not intelligible in itself as a justification for land use decisions. Many land use decisions, including many controversial land use decisions, are justified on the basis of the increased tax revenue that the municipality is convinced will result from the decision. This interest is often asserted as a ground for burdening or infringing the property rights of poor or middle-class property owners, especially in eminent domain actions. But increased tax revenue is not a reason for state action in and of itself; money has no intrinsic value. The tax revenue must be used for something good in order to become valuable. If it is assumed that the municipal government will use the tax revenue for good ends—better educational facilities, public parks and community centers—then the municipality’s real interest is in those more basic ends that (the city hopes )the tax revenue will help secure. But of course, the nexus between the land use decision and those more basic, distant ends is difficult to demonstrate.

Of course, one might observe that this is the very reason we should doubt the prudence of the land use decision in the first place.

Adam MacLeod

http://lawprofessors.typepad.com/land_use/2011/10/property-theory-and-land-use-part-iv.html

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