Property Rights Are Not Absolute
by Dale Tyler

Recently, both the Libertarian Orange County Register (OCReg) and the Orange County Republican Assembly (OCCra) in their June Primary 2006 issue got it wrong when they condemned Yorba Linda’s “Right to Vote” initiative. There was the typical scare-mongering about “dozens” of elections and quoting from the “non-partisan” city clerk of Yorba Linda. This is the same city clerk who sued the proponents of the Right to Vote initiative to block their initiative from being qualified for the ballot. Fortunately, the judge hearing the case said the city clerk had no right to block a properly qualified initiative, and the citizens of Yorba Linda voted on it on June 6.

The fundamental issue is one of the balance of property rights of different people. Almost everyone would agree that certain land uses are fundamentally incompatible. For example, schools and adult entertainment establishments, like adult bookstores and clubs, are not permitted with certain distances of each other by law in most cities. If you take the argument of the OCReg and OCCra to its logical conclusion, no interference with property rights is to be tolerated, so we should allow any mix of land uses right next to each other. Of course, this is ridiculous, and I would bet that even the OCReg and the OCCra would not want adult bookstores next to schools, although probably for different reasons. Thus, this argument comes down to a balancing of competing interests, like most things in life.

The Yorba Linda Right to Vote initiative (http://www.ylrtv.org/) is a very simple law that says the people of the community have a right to approve any major zoning change. The things that can trigger a vote by the people are changes that: (actual text from initiative follows)

a. Increases the number of residential units which may be constructed on a parcel designated for residential uses.

b. Increases the number of separate parcels which may be created from an existing parcel.

c. Changes any residential land use to allow any other land use.

d. Changes any non-residential land use to allow any residential land use greater than ten (10) net dwelling units per acre or allow a mix of commercial and residential uses.

e. Increases the allowed maximum height of development.

f. Provides for the private development of land owned by a government entity within five years of the date of the approval to develop the land.

g. Repeals any of the Planning Policy Documents.

Each of these is designed to promote continuity of the existing land uses within the community. For any project that changes any of the items listed above, the normal planning process would be followed before the project was placed on the ballot, including properly noticed public hearings where people can learn about the project. This means both the planning commission and city council would have to approve a project before any special election was called. Most projects would not require any changes to the list of items above, including virtually every remodeling or renovation of any existing structure. Only major projects would likely require a special election, and while an election costs taxpayer money, a bad project could cost the city a thousand times more.

When someone owns land or buys a new piece of land, they are aware of the uses permitted by the zoning code. The surrounding property owners also know the zoning of that property and make investments in their own properties accordingly. For example, if I know that the properties near my house are going to have high-density apartments, I might not spend a lot of money upgrading my house. If I have an industrial property, I would like other businesses nearby to buy my products and be my suppliers. If houses were built next door, then I might start to receive complaints about noise and light from my second-shift operations. All of these situations are what zoning is designed to prevent. By placing compatible land uses near each other and by providing certainty about future developments on adjacent land, empty or not, zoning laws allow property owners to plan for the future. This increases investment and the sense of community, because there are no surprises. Fundamentally, the existing landowner’s right to have their property's value and utility protected trumps the right of adjacent landowners to make changes that would adversely affect their neighbors. There may be disagreement about what changes are bad, but that is what a vote of the people will decide.

In some cities, like Mission Viejo and, apparently, Yorba Linda, developers treat the current zoning as just a suggestion. In Mission Viejo, for example, developers gave large contributions to the city council. That same council changed the zoning on a piece of property long designated for commercial-industrial use to high-density residential. The Right to Vote initiative takes the matter out of the hands of the city council and gives the citizens the direct approval of the proposed project. No one’s rights are being violated; it’s just a simple approval process that will, hopefully, be less affected by payments from developers. The developers must think this is a real roadblock to their way of doing business, because they have spent huge sums in Yorba Linda to try and push their anti-democracy position. Ask yourself, who is more likely to have the best interests of Yorba Linda’s (and Mission Viejo’s) citizens at heart, a group of developers or the entire voting population of the city?

I trust the voters to make more informed decisions and decisions that properly reflect the long-term goals of the city than politicians and bureaucrats. Those folks can do a good job for minor projects, but they have conflicting priorities like campaign contributions and developer-fee income that sway their judgments. Citizens will likely do a better job, and if they are fooled by developer promises on a bad project, then they have only themselves to blame.

You also need to wonder why developers are spending more than $113,000 to defeat this measure. Perhaps they know something we only suspect – that it is easier to buy politicians than voters.