The Problem With "Property Rights"

by Mitch Rohse, AICP

[Mitch Rohse has been a planner in Oregon since 1973. He’s the author of the 1987 book Land-Use Planning in Oregon. He’s been a planner for Lane County, Polk County, the City of Salem, and the state Department of Land Conservation and Development, and now is a private planning consultant. We asked for permission to reprise this column, originally published in Veneta's West Lane News, because of the current high interest in Measure 37, in which claimant after claimant appearing before the Joint Special Land Use Fairness Committee has been invoking the sacred cow of "property rights." For an expert rejoinder, we thought Mitch had the right response. Enjoy!]


Planners know this scene well. The planning commission holds a hearing on some difficult land-use question. A speaker steps to the microphone. He solemnly offers his solution: the commission, he says, must "respect private property rights." Often, the speaker seems to view this statement as profound and insightful. Equally often, I find myself struggling to stifle a great yawn.

I mean no disrespect for “property rights” or those who use the phrase. I just don’t find it to be especially helpful in such situations, for two reasons.

First, it’s much too general to help those who are trying to make specific decisions about land use. It seems only to raise questions, not answer them. For example, if the issue is whether to allow a rock quarry on a vacant lot next to your home, does "respect for private property rights" mean the planning officials should approve a permit for the quarry or deny it?

Second, the phrase often is insulting. Many who invoke it seem to imply that others somehow oppose property rights. But who’s arguing that we shouldn’t respect private property? Not I. I'm a landowner — and I came to be a planner precisely because I believe that planning and zoning help protect my property rights and yours.

So to those who proclaim this phrase to be the key to all land use matters, I request some clarification. When you say "respect private property rights," do you mean:

1. That every application for a land use permit should be approved?

2. That other people who might be harmed by one person's use of private land should have no voice in deciding that use?

3. That public agencies should have no say in the development of land even though all development depends on public services such as roads?

4. That governments should not regulate land use, even though their authority (and responsibility) to do so is as old as our nation?

5. That all questions of land use should be resolved solely by operation of a free market?

If your answer to any or all of the above questions is "Yes," then you are proposing some dramatic changes to our laws – a new way of doing things in this country. If your answer to the above questions is "No," then your exhortation to "respect private property rights" is too vague to be of much help. It is, in short, a platitude that amounts to little more than “Do the right thing.”

So, please, pardon my yawn. I have no quarrel with Adam Smith, Thomas Jefferson, or people who use "private property rights" as shorthand for the great theories of great thinkers. It’s just that I’m a little weary from 30-plus years of planning meetings. I'd like to skip the platitudes and political posturing and get right to work: maybe then our planning commission could adjourn before midnight. Glittering generalities aren’t much help to the thousands of professional and citizen planners who struggle every day to answer the specific question, "How should this land be used?"