The demise of property rights in Malibu
By Rick Wallace
A recent matter before the Malibu city government in-volved a new house built on the beach with permits. The suggestion was made that per-haps it should be torn down. After all, declared opponents of the home, it was too large.
That chilling recommendation represented a new portal to the diminishing right to own and utilize property in Malibu. Once inalienable, that right has shifted over a generation, and par-ticularly over 10 years of Malibu cityhood, away from the in-dividual owner to the govern-ment.
A similar case along the Columbia River on the Oregon /Washington border went farther. A home built with proper permits within the building code was ordered torn down by an un-elected environmental agency. It declared the new house could be seen from the river, and must be removed. A protracted legal battle re-sulted in a recent Wash-ington State Supreme Court ruling that the owner could keep their home.
What do Washington, Oregon and Malibu have in common?
Most of its citizens regard their area of such immense beauty and environmental value, that the government is utilized increasingly to dictate the use of privately held land. More honestly, one group of citizens uses the government to keep another group from doing what they want with their land, and particularly from doing anything at all.
The Fifth Amendment of the U.S. Bill of Rights protects individuals from having their property “seized by the govern-ment.” Thomas Sowell ela-borated that “Property is a set of defined options–it is the op-tions, and not the physical things, which are the property.”
In Malibu, the options for one’s property grow fewer by the month. Once upon a time a man could stand on his land with his family, envision a new home, construct it, and move in six months later. Now, the wait is at least two years. How did the government take control of the extra year and a half?
By design. The early city movement, concerned with sewers and hotels, carried its vigor to the small landowner who desired a big house. Early city councils purposely made the permitting process ever more ex-pensive and timely. The re-quirement of an applicant to get Coastal Commission approvals was never necessary. Our early leaders wished for a Malibu citizen-to-be to endure that extra six months of delay, or more.
So far, local governments and the Coastal Commission have managed to implement a seemingly endless permitting process. Court cases around the country are beginning to chall-enge that process. Ultimately, it boils down to this question: What amount of jurisdiction is in the proper interest of public safety and what amount is purely a denial of the use of property without compensation?
Some ultra-environmental governments have argued arro-gantly that since property rights are technically owned for eternity, it is insignificant to deny one use of their land for a few years.
The true shame of the pro-perty rights demise in Malibu is the overwhelming influence upon every aspect of a home con-struction or remodel. This is the area where the vast majority of citizens are dissatisfied, but with little organized outcry.
Originally, governments be-came involved with land use planning to prevent a home-owner from building an unsafe home that could victimize future owners or society as a whole. That oversight objective has been expanded. Now, despite best intentions, government planners virtually design the home. Likely, 95 percent of the local codes in home construction have nothing to do with public safety. Rather, they are more a result of social engineering. Bureaucracies created by en-vironmental advocates es-sentially determine the use of property in the interest of the ad-vocates rather than the property owner.
The vast majority of agencies and employees making decisions for private landowners are un-elected and unaccountable. Therein lies the most repulsive aspect of rights infringement. Without public protest, these erosions of liberty become en-trenched. The cost in time and expense to undo unfair re-gulatory reach is often for-bidding to the average property owner.
Environmentalism has done marvelous things in the past 30 years to improve the quality of life in every respect. Latter-day environmentalism often goes too far to vanquish property rights. Every possible excuse is used to erode personal rights in the interest of “public concerns:” there might be Indian bones; it is near a watershed; it is near a park; it is near another house; the lot is slanted; it is within sight of other homes or the highway; there are oak trees; it is bigger than the other houses; animals migrate nearby and on and on.
Furthermore, the standards grow tighter all the time. “Watershed” once meant a year-round running creek. Now it is any space that collects rainwater–ever. “Near a public park” meant within 100 feet. Now it might mean within one-quarter of a mile.
At any moment, a gover-nment agency somewhere can declare a new protective act, and unilaterally expand its control. Without defense, the landowner is obligated to the new set of standards. Any defense of property rights, such as this commentary, is seen only in black and white terms. One must be “only interested in raping the land for greedy financial profit” if they are not a complete advo-cate of absolute governmental environmental controls. Though Americans have fought wars to uphold basic individual liberties, environmentalism advocates only public good. Individual liberty is ignored, if not rejected outright.
Malibu citizens must demand a proper balance between environmental concerns and individual rights. The current debate about the purchase of large commercially zoned lots in the Civic Center represents a step in the right direction. Instead of instituting a virtual confiscation of all property options through legislative methods forced upon landowners, an ethical and legally viable approach is to purchase the land at fair market value.
Thereafter, the public may justifiably regulate land that it owns–rather than unjustifiably determine the use of land that it does not own. That is fair.
Hopefully, that fair spirit will infect the permitting process. To build a house 25 feet high instead of 18 should not require the nightmare that it does. The outrageous time and expense that state and local governments demand, combined with the influence over use, goes well beyond public safety.
With each new regulation, the voice of individual liberty is invariably silenced.