Measure Y and Private Property Rights

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“In our time, political speech and writing are largely the defense of the indefensible,” writes George Orwell in his 1946 essay, “Politics and the English Language.”

Orwell and his generation had, of course, witnessed the awful policies that emanated out of lofty ideals from both the communist left and the fascist right. So he excoriates those who twisted the language to mislead the citizenry.

“Political language,” he argues, “consist[s] largely of euphemism, question-begging and sheer cloudy vagueness.”

On a far less cosmic scale, a close reading of Measure Y, which seeks to convince voters that adding more than half a million square feet of office/residential construction in Newport Center will reduce traffic in our fair town, shows that such linguistic acrobatics are with us still.

The dilemma is this: Philosophical arguments can sound appealing; but after an ideology becomes codified, its shortcomings can surface.

One of the arguments used by Measure Y supporters is the sanctity of private property rights. If someone owns a piece of land they ought to be free to use it as they see fit. Many conservatives, in the interest of limited government, hold this principal dear. But it’s flawed thinking to believe that private property rights are absolute. The reality is that private property rights are not absolute and never have been.

“Any lawyer who has studied property law knows that private property rights are not inviolate, that they have always been subject to a variety of limitations,” explained Alex Camacho, professor of law at the U.C. Irvine School of Law, in a telephone interview.

“Ever since the founding of the U.S., property owners have never able to engage in activities that substantially and unreasonably interfered with their neighbors’ use and enjoyment of their property. Even conservative judges recognize as foundational the legal principle of limiting land use deemed to be a private or public nuisance.”

Most people also see the benefits of zoning laws, which restrict the type of development permitted on a piece of property. Those who require freedom from this sort of governmental interference would appreciate the city of Houston, Texas, which prefers that the free market determine who builds what where.

But Camacho says, “It’s a bit of a fiction” that Houston has no regulation. “Though Houston lacks zoning laws, it has plenty of public health and safety regulations that affect land use as well as private covenants and restrictions on the use of land.”

Regarding Measure Y’s proposal to allow the Irvine Company to move its entitlement to build hotels in under-trafficked Newport Coast in favor of building office/residential in traffic-congested Newport Center, resident Jim Mosher emailed this observation:

“Development limits go with the land, not with the owners. An existing allocation to build something on one property DOES NOT give the owner a right to decide to not build that and instead use the allocation to build something of comparable intensity on some other property they happen to own in another part of the City. That is, there is no inherent ‘right’ to transfer a right from one property to another or to transform a right from one kind of development to another. All such changes, if allowed at all, require discretionary approval, and the voters have as much right as anyone else to exercise that discretion by saying no.”

Perhaps part of our attitude toward private property rights equates to the geography of a place. If you grew up, as I did, in a densely populated place like New York City, it was understood that what your neighbors did with their property could deeply affect your own. Hence hefty regulations on what can be built where in my hometown.

By contrast, consider the open spaces of the West, which historically have fostered a passion for freedoms such as private property rights. Yet even in the West you’ll find progressive thinking. The Napa Valley’s bucolic landscape of vineyards didn’t happen by laissez-faire governance.

“In 1968, the Napa County board of supervisors created the Agricultural Preserve Zone,” changing the valley’s minimum lot size from one acre to 20 acres and later to 40 acres, according to Sharon and George Gmelch in “Tasting the Good Life: Wine Tourism in the Napa Valley.”   The Gmelches write: “The agricultural preserve was a radical idea, designed to preserve open space, prevent overdevelopment, and protect agricultural and the valley’s foundation industry – wine. Nothing like it existed elsewhere in California, or anywhere else in the United States. And it was achieved despite vigorous opposition from developers and some citizens who wished to profit by subdividing their land for house lots and commercial activities, or simply to divide their property among their children.”

Despite such restrictions on private property rights, the Napa Valley went on to thrive. That’s something to consider as we simmer in traffic on PCH: the ideology of private property rights versus the reality of our streets’ congestion.

I also expect that George Orwell would have found the misleading language of Measure Y to be just the sort of “sheer cloudy vagueness” he found so objectionable.

The writer is the President of the Newport Beach Women’s Democratic Club. She can be reached at [email protected].

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