It is not a new thing to see the Constitution cited when fighting land use regulations. However Penn Central and several other major cases have clearly illustrated that some level of regulation is necessary and allowable. Obviously we will always be dealing with those who feel that any regulation that limits what can happen on a property results in taking of their property. In the Winona example, the Constitution is used to fend off new flood zone restrictions as well as protections for the tops of bluffs. As we have all seen in the course of the first several months of 2010, whether in Massachusetts or Tennessee not protecting against inappropriate construction in at-risk area creates hazards to personal property and safety. Risks not just borne by the individual property owner, but all of society under some conditions.
Bringing into play the Federalist Papers is something new that I have not encountered before. The citation in the Hutchinson, Kansas situation:
"Federalist Papers" (No. 12, Nov. 27, 1787), "The prosperity of commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful as well as the most productive source of national wealth; and has accordingly become a primary object of their political cares."
The concept argued in this passage is being used to argue that the pursuit of wealth outweighs everything. It is being used in Kansas to argue against home occupation restrictions which would otherwise prohibit manufacturing type uses within residential settings. Essentially the pursuit of individual wealth, at the expense of ones neighbors is being argued to be more important than the protection of ones neighbors individual property rights.
These two cases provide an interesting juxtaposition. I could take the argument being made in the Hutchinson, Kansas situation to argue that by allowing a home occupation that includes a machine shop or other noisy use, the City of Hutchinson is taking my property value as it relates to how I enjoy my own property. I know some will argue that this is a stretch of the takings clause in the Constitution, but it is not an unusual one - look at most challenges to permits allowing development and the appellants are arguing exactly that, diminished property values.
Looking back at the Federalist Papers, James Madison noted (Number 10, November 22, 1787)
"But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."
So, Madison noted that property is not equally distributed, such unequal distribution was a cause for problems between people, and that resolving these conflicting interests was a necessary part of governmental regulation. One could say that Madison anticipated and addressed Hamilton's commerce issues.
Further on, in Federalist Paper Number 54, the issue was addressed again:
"Government is instituted no less for protection of the property, than of the persons, of individuals."
This document, which is credited to both Hamilton and Madison, also notes the role of government in the broadly stated protection of people and property.
The conclusion, both Alexander Hamilton and James Madison seem to have anticipated the inevitable conflicts involving property and protecting both people and property. In crafting the Federalist Papers, which helped to form the Constitution and is used to interpret the Constitution, they anticipated the need for legislation to protect property and people. Whether it be the flood zone and bluff area protections under discussion in Winona or the home occupation discussion in Hutchinson, when taken as a whole, neither the Constitution or the Federalist Papers really provide much basis to support those opposed to these proposed zoning controls.
No comments:
Post a Comment