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Ed Lotterman: Libertarians like Rand Paul are fostering a healthy debate on property rights

It was good timing that Rand Paul’s presidential candidacy announcement came the same week as a judge in my home town of St. Paul, Minn., ruled that the owners of a house in a historic St. Paul neighborhood have the right to tear it down. This sounds like a tempest-in-a-very-small-teapot issue, but it is emblematic of important issues.

Paul is the one of most articulate representatives of a growing libertarian bloc in U.S. politics. This bloc emphasizes the rights of free individuals and businesses and decries unneeded and unjust government impingements on individual liberty.

The liberty to destroy one’s own house on one’s own property has been a clear right of property ownership for centuries. It is still commonly exercised by owners of houses, including some 1950s suburbs where – often facing neighborhood opposition – the demolition of existing houses in good condition so that much larger ones can be constructed is an ongoing issue.

But it is also is a right that is increasingly limited by government restrictions in older areas with grand homes that are designated as having some historic significance.

Whether one leans libertarian or not, it is an important question whether government can abolish established property rights of existing owners, without compensation for a “taking” that, according to the Fifth Amendment to the U.S. Constitution, would be required. Under what circumstances is this just? When does it advance the well-being of society as a whole?

The principle that persons should be able to use their own property as they see fit as long as they do not hurt others goes back to Middle Age English common law.

The problem is that what constitutes “hurting others” varies with technology and cultural norms.

Many people find zoning laws or covenants troublesome, particularly when they get down to details on permissible vegetation in yards or siding on houses. The rationale behind zoning laws is that the actions of one homeowner should not undermine the quality of life, and property values, of others in the neighborhood.

If someone living on a street in a medieval peasant village started making and selling baked goods, there was little impact on neighbors. But if you opened a cupcake shop on a residential street in 2010, the horde of customers’ cars causes serious problems for others living nearby. The hammering of a colonial era blacksmith probably bothered neighbors, but at dusk, the lack of light forced him to bank his forge. However, electrical lighting allows a modern stamping or welding shop to run all night. A 24-hour neighborhood convenience store will always attract someone with a blaring car radio, even at 3 a.m. And while the problems of halfway houses for recovering addicts or recently paroled ex-cons may be overstated, few people want one next door.

So rules limiting what activities property owners can engage in is not just evidence of a “nanny state” taking away people’s liberty. Instead, when used properly, they are an effort to maintain economic efficiency, when values conflict, by limiting the ability of people to impose external costs on others.

They also aim to preserve some level of fairness in how others are affected by the actions of one. But that may mean severe limitations on the liberty of the persons on whom the rules eventually bite. And the rules that area adopted eventually will strike many as arbitrary.

A rule that prevents one house in blocks of single-family homes from being turned into a rooming house for 20 students makes sense to most. But what if someone wants to plant perennial prairie vegetation instead of a conventional lawn? Codes long banned that in many municipalities. Want to use gray water from sinks and laundry to water the garden? Most plumbing codes still make this difficult and expensive. Erect a wind turbine in the back yard? Nearly impossible.

Things become particularly contentious with issues like historic preservation. Some people do place substantial value on living in a neighborhood of stately old homes. Such homes command higher prices if all on a given street have similar character rather than having a hodgepodge of architectural styles. So allowing one owner to tear down an 1880s Queen Anne to replace it with an early 1960s split-level would lower the values of many other houses nearby. The external cost would be a direct, measurable monetary one.

But we also place limits on alterations in some areas to achieve a more abstract cultural goal. Having grand houses in historic neighborhoods is thought to have some intangible benefit to society as a whole. But how can one quantify this, when it means much to some and little to others? And what if severe restrictions on altering exteriors increases the cost of maintenance and lowers sale values? Why should this small group of property owners bear the costs of a benefit to society as a whole?

What if owners of a house in a historic district have a child who suffers an injury that confines her to a wheelchair? Do we allow them to construct access ramps that clash with the historic appearance of the rest of the street? Or do we force them to move just because of a tragic family misfortune?

What does all this have to do with Rand Paul or other libertarians? The answer is that libertarians are forcing us to re-examine these issues of values conflicting between individual autonomy and the good of society as a whole. Is there really any societal necessity in making people get a license before they can charge other people for braiding hair or doing a pedicure? Should zoning provisions that clearly have few effects – other than protecting the monopoly status of established businesses – really be on the books?

Libertarians are winning some of these arguments hands down. Citizens see their point. Many people in my home town are glad to be able to buy lunch from food trucks that long were banned. But the recent explosion of such a truck parked in a residential neighborhood also shows there are public safety ramifications.

Many want less government micromanagement of business, but they don’t want a garish food truck with a leaking LP tank parked three feet from their property line every night or a halfway house or 24-hour convenience store on their corner.

I think the outcome will be little change in the status quo. But the debate Paul and others are bringing is a healthy one.

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