Libertarian Perspective
The New Ballot Box Land Grab
L. K. Samuels
Mar 19, 2006

One of the most successful methods for taking ownership of private land is simply to make the land nearly impossible to use. With an arsenal of land use laws and county general plans, local governments across California are increasingly banning owners from reasonable use of their property. But now some no-growth land use adherents have found another way to take other people's land: vote it away directly.

One prime example is a controversial general plan that backers attempted to put on the ballot in Monterey County. Fortunately, county supervisors declined to place the measure before voters, although nearly 16,000 signatures were gathered, nearly twice the number needed to qualify.

One supervisor said the measure had "legal faults and economic inequities." The legal analysis by a Los Angeles law firm was highly critical of the initiative, writing that it conflicted with several state laws on housing and was replete with procedural problems, fiscal gaps, and violations of development rights.

Unfortunately, they missed the point. When does a voting majority ever have the right to take away legal property from another? According to one of the most renowned U.S. Supreme Court Justices, Robert H. Jackson, the answer is never. According to Jackson, "One's right to life, liberty, and property, . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no election."

So, how restrictive is this measure? Devised by an environmentalist group called LandWatch, the plan makes it almost impossible to build any new homes outside five small designated areas. For instance, if an owner with 20 acres wanted to give an acre to a son or daughter, the owner would have to go through a countywide election. That is, the owner would have to pay the cost of a general election up front—perhaps over $100,000.

Not only would lot splits go through an automatic countywide vote, but the measure allows no changes whatsoever without a vote of the general public. In other words, any land use changes must endure a political campaign at the ballot box, a vote that would determine complex land use laws that even most attorneys find difficult to comprehend.

And if by some miracle a majority vote allowed the construction of new homes, the builder would be required to increase the low-income inclusionary housing from 20% to 30%, making the project financially unappealing. Plus, any new inclusionary housing would be placed under a strict price-control deed restriction that would last forever, meaning that the property owner would never be able to sell his or her property at market value.

Even the collateral damage from these strict land use controls would be overwhelming. For instance, local farmers and ranchers would face plummeting land prices, and without the possibility of future development the land would become almost worthless. This situation would be devastating because farmers and rancher have traditionally borrowed on their land during economic downturns. Without this ability, they could go bankrupt, harming communities that depend on agriculture.

Such land use measures are a political tactic to take hold of another person's land without having to buy it. It is just another old-fashioned political power grab to subvert property rights, especially since the advocates of this measure had previously tried and failed to get the county supervisors to enact a similar measure. But worse, the political majority would now be in charge of determining where housing will and will not go. The stronger majority would determine what the weaker minority can do with their property, if anything. This approach not only takes away rights but distorts the marketplace for consumers.

In the final analysis, we all need to plan for the future. But as Nobel Prize–winning economist Friedrich Hayek once remarked, "The more the state 'plans,' the more difficult planning becomes for the individual." Any form of government or majority-vote planning can only result in bitter conflicts, property rights abuse, eminent domain travesties, and general disequilibrium.

The real agenda behind such land use laws is to prevent land owners from having any say concerning their property. It is a belief by government-lovers that only the politically endowed are smart enough to organize communities in what they perceive as the right way. Historically, this mindset has been the source of human rights violations and the enemy of individual choice. What we really have here is a massive land grab by the politically wealthy that has little to do with organizing a better community.