Property Rights and Zoning: A Balance Rooted in Founding Principles

Property Rights and Zoning: A Balance Rooted in Founding Principles
Posted on 03/04/2019

By Council Member Mike Shelton

In the seven years that I have served on the City Council, nothing has ignited the passions of residents more than zoning issues. People are appropriately passionate about their property. 

“The right of property is the guardian of every other right and to deprive the people of this, is in fact to deprive them of their liberty.” —Arthur Lee of Virginia, 1775

Property rights are the substance of a free society. They are vital to our democracy, to our government, and to our freedom.

Several months ago, we invited Brent N. Bateman to a City Council meeting to address the topic of property rights in the State of Utah. Brent is the Utah Property Rights Ombudsman, whose office is charged, by state statute, to protect and preserve the property rights of Utah citizens. The Ombudsman’s office helps individuals and government agencies understand and comply with land use and property rights laws. The office also resolves property rights disputes.

Mr. Bateman reminded the Council that the U.S. Constitution, and more particularly the Bill of Rights, exists to protect citizens from the government. Property rights law is founded in the protection of individual property rights from the government, not for the government. When it comes to property rights, he explained, “the basic right that people have in their property is to do whatever they want with their land. Anything. That means if I own a piece of land, I can do what I want on it.” 

While acknowledging that the basic right is that you can do whatever you want with your land, we as a nation further acknowledge that anybody doing anything they want with their land would lead to chaos and could be dangerous for other people. The rule is that property owners can do anything they want with their land, but zoning laws are permitted to create exceptions to that rule for the common good.

Mr. Bateman explained that zoning laws are founded in the police power. A city can create zoning laws because a city has police power that is delegated to it by the state. Zoning laws are permitted the extent that they ensure the health, safety and welfare of citizens.

Mr. Bateman continued: “[The city] get[s] to tell people what they can and cannot do on their land. But to do that, you must create ordinances. You don’t get to do that without creating an ordinance because you have to create one of these formal exceptions to the overriding rule [protecting individual property rights]. If you haven’t said someone can’t do something, they can, no matter what it is.”

Utah is a property rights state. State law provides a number of protections that prohibit local government from creating situations that are averse to the land owner who submits a development application. For example, if land use regulations are unclear, confusing, or contradictory, then the decision on a land use application must favor the applicant’s right to use his property as he or she wishes. UCA (10-9a-306). The city has the right to create land use regulations but is then obligated to follow them. If the land use applicant complies with the applicable regulations in all respects, they have the right to be approved.

Sometimes people say to us: “You should not approve this land use request. The residents don’t want it, and you should represent the residents by denying the application. If this is not good for the city, then you must deny the applicant.”

State law requires the land use authority of the city to ask a different question: “Is there something in the city ordinances in place at the time the applicant applied that gives the city the right to create an exception to the applicant’s basic property rights?” The city is not empowered to grant an owner the right to use their property; that basic right accrues to them under the Constitution. Instead, the city only can create an exception to that basic property right in situations where land use regulations, in effect when the application was filed, authorize such exception. 

Good land use decisions are based in compliance with standards. If the standards are met, the city has no formal exception upon which to deny the applicant’s basic property rights. If the city’s ordinances include a standard for, by way of example, protection of views, then the city may impose a condition that an applicant takes measures to protect those views. If there is no legal standard in effect concerning views at the time the application is filed, however, then the city may not deny the application because it interferes with views.

Sometimes land use ordinances contain goals (for example, that a development should be walkable) indicating the motivation for related standards, but if standards are not specified in the land use regulation then the goal would simply constitute an unclear standard which ultimately must be decided in favor of the applicant. In other words, any amount of walkability would be walkable enough.

The time to decide what a city wants to look like is during the general plan planning process. The general plan leads to the ordinances that implement the general plan, including those which impose exceptions to basic property rights. Those ordinances must be grounded in health, safety and welfare of the city’s residents as determined by the City Council and define the standards that will apply to future land use applications. The Mayor and City Council have set as one of our top priorities to begin a comprehensive review and rewrite of the city’s General Plan, which is the fundamental component of the city’s land use law regimen. We look forward to the involvement of many residents who will help throughout the process and encourage the involvement of those who want their position to be part of that conversation.