A Meaningful Dialogue on Combating Urban Sprawl
by Douglas T. Kendall
Appeared in the Bangor Daily News
Developers and property rights extremists are responding to the increasingly loud chorus of voices demanding action to combat sprawl, with the predictable protest that sprawl control will "trample individual property rights." Ironically, the real problem with the sprawl control programs advanced by notables such as Vice President Gore and Maryland Gov. Parris Glendening is that these leaders have already capitulated to property rights objections to the point that their initiatives inadvertently risk undercutting the fundamental premise that communities have rights too.
An examination of Maryland's "Smart Growth" legislation and Gore's "Livability Initiative" reveals just how frivolous property rights objections are to these approaches. The programs rely almost exclusively upon changes in government financing and the purchase of land and development rights to accomplish their objectives. But what precisely is the property rights objection to these types of measures? That landowners have a constitutional right to government spending that subsidizes sprawl? That there is a constitutional barrier to the government buying property to protect open space? Be serious.
Not that this deters developers. Indeed, developers and property rights groups in Minnesota and elsewhere are pushing, in the name of protecting property rights, measures that would limit the government's power to purchase property. Just the opposite argument is more persuasive. Most property owners, I suspect, would be more concerned about protecting their right to sell their land to the government, which is frequently the highest bidder and most appropriate purchaser.
The real concern with Maryland's program and Gore's initiative is that, in attempting to steer clear of any potential property rights objections, they leave off the table valid and critical community protections -- reasonable regulatory measures such as urban growth boundaries and impact fees -- that will ultimately be necessary to combat sprawl. Getting the government out of the business of promoting uncontrolled growth, plus purchasing critical parcels, are good starts but actually countering sprawl will require more.
Anti-sprawl success stories occur around the country, in cities such as Portland, Oregon; Boulder, Colorado; and Chattanooga, Tennessee. These municipalities are fighting sprawl by planning regionally, directing growth through use of urban growth boundaries and transferable development rights, and charging developers reasonable fees to cover the costs of their projects. These cities have reaped rewards, consistently being named among the nation's most desirable places to live. While these planning tools have some impact on property rights -- reducing the development potential of certain properties and making developers pay for the costs attributable to their development -- this impact is neither unfair nor unconstitutional.
By talking only about incentives and buyouts, however, Glendening and Gore inadvertently perpetuate the myth that developers have the absolute right to maximize their profits through uncontrolled growth, free of restrictions designed to promote community welfare and protect property values. Particularly troubling is the notion, furthered by the increased use of "purchase of development rights" programs, that developers have a right to payment from the taxpayers any time they cannot fully develop their land.
In fact, property owners in this country have always been subject to reasonable limits on development. When the Founders wrote the Constitution, the colonies imposed a host of restrictions on development to control town population densities, ensure orderly development, and otherwise protect the community from uncontrolled growth. The U.S. Supreme Court has long recognized that "all property in this country is held under an implied obligation that the owner's use of it shall not be injurious to the community," and that the Constitution allows local communities to continue to impose reasonable land-use controls to promote the public good.
Moreover, most owners of real property in the United States are homeowners, and many of them are watching their property values decline as uncontrolled growth clogs our highways, damages our environment, and undermines our quality of life. Limits on sprawl promote the property rights of the overwhelming majority of property owners.
Gore and Glendening should be commended for starting a national dialogue on combating sprawl. For that discussion to be meaningful, however, it must be expanded to include the measures necessary to make sprawl control work.
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