Property Rights – Yours and Mine
by Dale Tyler

One of the bedrock freedoms we have in this great country is the ability to own property and use it for our own purposes. This seems so simple to us in America, but it is really a profound statement of our shared values. It is said that “A man's home is his castle and even the King must ask permission to enter.” This epitomizes what property rights are about: freedom from government interference and coercion, except as noted in the Bill of Rights' Fifth Amendment, which requires just compensation for land taken by the government. Other than this, a property owner can do as he pleases with his land. Or can he?

One principle of law is that my right to swing my fist ends at the point of your nose. This seems quite reasonable and is widely accepted as a requirement for living in civilized society. By extension, this rule could be generalized as “my right to act is only limited when harm is caused to others.” Another way of describing the respect one should have for others is the well-known Golden Rule.

Here in Mission Viejo, we are seeing the erosion of these principles. First, there was Steadfast/Target and the old Kmart property, where the property owners were given new residential entitlements that hurt the city as a whole. Our city council decided that campaign contributions were more important than the future revenues the city would earn from leaving the properties all commercial, despite solid evidence that residential units cost the city (other taxpayers) money, while commercial ventures contribute more taxes than they require in services. Thus, the new property owners violated the principle of not harming your neighbors by your actions, in this case, building houses instead of stores and offices. Now, the folks at Steadfast and Target will say “the city gave us permission.” This is true, but it misses the real point that what the City Council did was wrong, and it did nothing to erase the obligation that Steadfast/Target had to the citizens of Mission Viejo.

Recently, another case of property rights vs. the obligation to not harm your neighbors was before the City Council on April 16, 2007. On February 12, 2007, the Planning Commission held their second hearing on a plan put forward by “Lori Ghnouly, to add a 1,205 sq. ft., first floor addition to the rear of the existing single story, 1,081 sq. ft. dwelling, for a total of 2,286 sq. ft. at 23732 Calle Hogar, in the RPD 6.5 (Residential Planned Development) zone.  The proposed addition includes four bedrooms, three bathrooms, an office, and an expansion of the existing living room.” (Quoted from the Planning Commission Agenda, Item 4, 2/12/07.) In other words, this homeowner wanted to more than double the size of her house. It should have been no surprise that her neighbors, once they learned of this plan, were strongly opposed. However, the real question is, did the neighbors have any “rights” that would permit them to stop this use of Ms. Ghnouly's property?

On the one hand, it would seem that the property owner should have an absolute right, subject to city zoning codes and development rules that the property owner agreed to when she bought her property, to do as she pleased. According to the Planning Commission, what she wanted to do was within the rules and regulations of the city. However, they and the city staff failed to take into account the obligations a property owner has to not adversely impact surrounding properties by lowering the value or utility of those surrounding properties. What Ms. Ghnouly was proposing would significantly affect the parking, noise generation and right to “peaceful enjoyment” of surrounding properties, according to nearly everyone who testified. Adding four bedrooms and an office was just too much impact for the neighborhood. One wonders why this proposal was put forward at all, since even a brief conversation with neighbors should have informed Ms. Ghnouly of her neighbors' feelings

By weighing the rights of Ms. Ghnouly against those of her neighbors, the city had to walk a fine line. However, in this case, the sheer scale of the project should have made the decision easier. The house in question would have become significantly larger than any surrounding house, with six or seven bedrooms. In this, the Planning Commission failed the citizens of Mission Viejo. During the council discussion, various arguments were made that tried to claim that the city cannot interfere if all of the rules are being followed. This approach, primarily advocated by Ury and MacLean, is too narrow an interpretation of what is fair and proper. It puts the city in the business of taking rights from one person and giving them to another by force of law, as opposed to getting agreement between private parties and then presenting the resulting agreement to the city. I believe this is what property rights are all about, having a voluntary agreement between nearby property owners that will respect all of their rights as opposed to a government mandate. Of course, a single property owner in opposition should not be able to block a project, unless he is the only one impacted, but respecting the rights of others to use and enjoy their property is why our founding fathers made sure not to give the government power over who can own land. By recognizing that property rights are really an agreement among ourselves, without the government imposing bureaucratic and narrow interpretations of what surrounding property owners want, we will all be better off.

In this case, the Ciity Council majority got it right, with three council members (Ledesma, Reavis and Kelley) voting to preserve the character of the neighborhood, with Ury and MacLean voting against the neighbors’ right to enjoy their properties.

One wonders how this case differs from Steadfast/Target. In that case, neighbors around the project were nearly unanimous in their opposition, yet the project sailed though. Perhaps with the latest case the council is starting to listen to the citizens of Mission Viejo. I hope so.