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The 'New' Property Rights
[February 6, 2003]

By S. M. Oliva

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled in the case of George Washington University v. District of Columbia, upholding the District’s zoning restrictions on GW’s land use. The case was by no means a landmark decision, yet the three-judge panel’s opinion did outline much of what has gone wrong in modern zoning laws.

The D.C. Circuit case was just the latest manifestation of a two-decade-plus fight between GW and its neighbors in the District’s Foggy Bottom neighborhood. The current dispute dates back to 1999, when GW presented its ten-year campus plan to the District’s zoning board. Under local law, a university may not develop residentially-zoned land without first submitting an overall campus plan, then seeking a “special exception” for each building within the plan. Universities may develop commercially-zoned land without going through this campus plan process.

In approving the 1999 campus plan, the District imposed what amounted to an enrollment cap on GW’s undergraduate enrollment. GW must house 70% of their students “on campus.” Failure to do so means GW will not get special exceptions for non-residential buildings that are underway, such as a new headquarters for GW’s business school.

To quickly meet this cap, GW purchased several existing apartment buildings and hotels outside their campus plan boundaries but within the Foggy Bottom neighborhood. The zoning board ruled that these buildings could not count towards GW’s 70% on-campus requirement, despite the fact GW operated the newly acquired buildings as residence halls. After losing in local courts, GW sued in federal court to have the District’s 70% rule declared unconstitutional. A district judge ruled partially in GW’s favor, which led to both sides appealing to the Court of Appeals.

Before the D.C. Circuit, GW argued that the District violated their “substantive due process” rights. Under this theory, GW’s property rights fell victim to the District’s gross abuse of power. Substantive due process is not the strongest argument to advance, given it only imposes “only very slight burdens on the government to justify its actions,” as Senior Circuit Judge Stephen Williams said in his opinion for the Court of Appeals. The District’s actions would have to be completely unreasonable on its face for GW to prevail on this point, and in fact the Court found that not to be the case.

But what’s interesting is the Court’s definition of property rights. The D.C. Circuit joins the view of a majority of the U.S. Courts of Appeals, which effectively states that property rights exist by government permission. The more traditional approach, adopted by the Third Circuit in Philadelphia, holds that ownership in the land is itself significant to assert a property right. This, of course, is the interpretation the average person would subscribe to, but in the mystical language of appellate lawyers (and zoning regulators), recognizing property as an individual right is too great a concession.

Judge Williams explains the difference between the Courts as follows:

The majority approach may seem at odds with ordinary language, in which we would say, for example, that a particular piece of land in Washington is ‘‘the property’’ of GW. But an all-encompassing land use regulatory system may have either replaced that ‘‘property’’ with a ‘‘new property’’ (or with several, one for each authorized class of use), or conceivably have replaced it with less than a new property (thereby, one would suppose, effecting a taking).

In plain English, the majority of appellate courts no longer defend the individual’s right to property. Instead, “new property” doctrine allows nearly unlimited power to zoning boards to decide for themselves what property rights may or may not exist. Taken to an extreme, this approach would constitute naked fascism. As applied by agencies like the D.C. zoning board, it’s actually something worse—a wholly arbitrary regime where property rights are subject to the mere whim of whomever possesses political power.

GW’s case is a perfect illustration. The real justification for the D.C. action, when you strip away all the irrelevant legalisms, is the hatred an active minority of Foggy Bottom residents harbor towards GW. The Court acknowledges this “group animus,” but then throws its hands up as to what can be done. Judge Williams correctly notes that the Fourteenth Amendment traditionally applies to “suspect” classes of citizens that have long suffered at the hands of government officials. It’s hard to argue the well-to-do undergraduates of GW are the kind of “suspect class” envisioned by the framers of the amendment. At the same time, however, there is an extensive recent history of Foggy Bottom activists using the government to attack the mere presence of law-abiding students.

Foggy Bottom activists reflexively oppose every action GW takes. The current housing dispute is an excellent example. The activists demand GW build more residence halls, yet when they do so, these same activists try to stop the projects on a variety of grounds, ranging from “environmental impact” to “adverse impact on the neighborhood.” Even the District government acknowledges their zoning policies are meant to “restrict” GW’s continued growth. The only acceptable option, to both the District and the activists, is for GW to simply enter prolonged stagnation.

What possible justification exists for these policies? The Court cites District zoning law’s argument that special exceptions may only be granted if the intended use is “not likely to become objectionable to neighboring property.” But what constitutes “objectionable”? Judge Williams says the word imposes “substantive limits on official discretion,” yet he doesn’t elaborate as to what those limits are. In effect, the District considers a proposed use “objectionable” if enough neighbors complain, irrespective of the merits of those complaints. It’s property use by consensus, where the owner’s rights are replaced by a competing set of interest groups locked in permanent conflict. Thus, contrary to Judge Williams’ assertion, there are no substantive limits on official discretion, since any act of the zoning board can be justified on the grounds that the property owner’s act is “objectionable” to somebody.

The fact is, GW has the better of the moral argument, if not the legal one in this instance. GW puts its land to productive use, while the school’s opponents are—forgive the broad condemnation—a group of unhappy senior citizens seeking to impose stasis on the Foggy Bottom neighborhood. They want things to remain exactly as is, and consider any GW act to be inherently aggressive, regardless of merit.

This situation is hardly unique to GW or D.C. Throughout the country, thousands of zoning battles are waged every day on the same, anti-individualist grounds. People simply refuse to accept the simple concept that private property is private, and not subject to extensive public debate. America would never have existed had the kind of zoning regimes now in place existed during the 18th and 19th centuries. How could any business, community, or university ever developed if specific plans and “special exceptions” were required for every action, no matter how trivial or minor?

The mere presence of zoning laws implies a governmental bias against property owners. It says that land use exists only by permission of others, and that ultimately no individual right to property exists. This goes against the intent of the Constitution, which not only guarantees the right to property, but also imposes a specific duty upon government to compensate any property owner when their land is taken for “public” use. While no lawyer would argue GW’s case constitute a “taking” under the Fifth Amendment, those of us who back reason and individual rights know better. Zoning is—almost by definition—a taking, although usually not one for a valid “public” purpose.

 

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