Property Rights vs The Common Weal

By Charles Houston

“Common weal” is the archaic term for the satisfactory general welfare of the citizenry. The “general welfare” is a critical concept that implies a satisfactory state of affairs.  How do we obtain general welfare, and how does that concept relate to using one’s land?

“My Farm is My 4.01(k) Plan.”

I’ve often heard landowners say that.  There are many ways to express the sentiment, such as: “My children will inherit the land and should be able to sell it if they wish.”  When you cut to the core, these people are simply asserting that it’s their land, and that they have property rights which let them do whatever they wish with it. (Unsaid is, “Neighbors be damned.”) 

Pure Freedom? Nope

All of our lives are constrained in many ways: The IRS really does want your money. As irritating as someone may be, you can’t simply run him over with your Prius. While that Prius may cruise at ninety, you’d be risking a serious ticket. You can quit paying your power bill, but have some candles and blankets handy.

You get the point.

From where do these constraints come? While common law and tradition are factors, we are most constrained by ordinances passed by legislative bodies. For example, Loudoun County gets a nickel for every plastic grocery bag you use.

Democracy

We live in a democracy, and we have a say in the election of the officials who pass ordinances. Democracy comes from the Greek “demos,” meaning people, and “kratos” meaning power. Thus, “power of the people” is a way of governing that depends on the peoples’ will as expressed in elections.

We hope that decent and wise people get elected to govern us, although history suggests that this rarely happens, at least on a national level. Loudoun’s governors – this Board of Supervisors – are a good group, but some past Boards have been neither wise nor good. 

Constraints and democracy bear directly on land use and property rights, as do wisdom and decency. 

A majority of citizens elect a governing body to promote a common weal. Decisions are not universally shared, as there are always political disagreements. (And even more disagreements when businesses or their fast-talking shills butt in.) Supervisors need to have the wisdom of Solomon. Some do, some don’t.

A Dilemma

When the governing body grants the wishes of one group, doing so inevitably upsets another faction. What if only one small group seeks redress, perhaps vehemently opposing a brewery that’s bought land nearby. 

Which party should prevail in that situation? Supervisors can consider a myriad of facts and decide cases on the individual merits. Like it or not, we’ve elected the nine of them. (Personally, I think it’s a pretty good Board.)

Land use controversies happen constantly. The concept of by-right zoning can make the decision easier since a Board could simply point to a zoning ordinance and say that its hands are tied. 

I would far, far prefer an end to by-right zoning, and let the Board wrestle with land use controversies on a case-by-case basis. Hopefully its decisions would be good for our general welfare.

Property Rights?

Yes, you do have property rights, but they are not unlimited. They are constrained by land use ordinances like zoning, which have been enacted to provide for the common weal. 

Doubt me? Want to turn your front yard into a used car lot? A neighbor wants to convert his house into a casino. Another neighbor thinks his back yard would make a great cemetery. Zoning estops them in its promotion of the common good.

Zoning is both prescriptive and restricting; it says what you can and can’t do. That’s how it should be if it serves the general welfare. 

The new zoning ordinance is not perfect, but it seems to be a step in the right direction. The Planning Commission and the Board of Supervisors just need to stand up to the greedy special interests who, frankly, could care less about the average citizen.

Or care about the common weal.

Charles Houston developed more than six million square feet of office buildings throughout the south. More importantly, he has been active in conservation matters for over two decades.