From Bundle of Rights to Zoning

Think of property rights not as a single "right," but as a bundle of different rights. You can separate some rights from others, allowing certain uses while retaining other ownership rights.

For example, if you own a townhome... you can rent it. The renter acquires from you some of the bundle of rights, such as the right to occupy the townhome. Without the transfer of those rights, as documented in a rental contract, the renter would be trespassing on your private property.

Occoquan townhomes
townhomes in Occoquan, built during 1990's real estate boom

Similarly, if you own a farm with a woodlot, you can sell the timber rights. The logging company can harvest and remove the commercial timber, subject to the conditions in the contract signed with the landowner. The right to harvest timber or occupy a townhome may expire over time, but landowners can also sell perpetual rights. Deeds for almost all parcels with a house in Northern Virginia include perpetual easements for utility companies to place underground or overhead power/gas/water lines across the property. In other cases, you may share a driveway and your neighbor may have a "right of way" to provide legal access to their parcel.

No individual owns all the potential property rights in Northern Virginia. Like it or not, zoning is a reality here. Government agencies limit the potential to develop your land as a hazardous waste dump, or as a fast food restaurant with drive-through windows, or even as a homesite.

In the "State of Society" that exists in Northern Virginia now, it is mostly local elected officials (city councils, town councils, and Boards of County Supervisors) who pass the ordinances that affect most property rights and set tax rates for proprty taxes. The person you elect to Congress, or as President, will not be the person who can lower the property taxes you pay for your house.

When the courts interpret the laws, determining the "rules of the game" for controlling development, a key guide is the Fifth Amendment to the US Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)
"Taking" property for public use is permitted by the Constitution. Government agencies can exercise the right of eminent domain to acquire land for a road. Otherwise, one landowner could block an entire project, or demand an outrageously high price for a key parcel. The Fifth Amendment simply requires that government seisure of land be matched by appropriate compensation.

For about a century, the Supreme Court has supported the rights of states to control development, citing the "police power" of government to ensure the safety, health, morals and general welfare of the public. If government controls are unreasonable, however, then courts have ruled that landowners must be compensated for the "taking." In addition, the defintion of "public use" is also subject to court interpretation. In the Kelo v. New London case in 2005, the Supreme Court allowed a government agency to condemn private property that was already developed, in order to facilitate a redevelopment of the area under a different private company.

References

1. Chief Seattle's Thoughts, http://www.kyphilom.com/www/seattle.html (last checked February 14, 2008)
2. "Thus Spoke Chief Seattle: The Story of An Undocumented Speech," http://www.archives.gov/publications/prologue/1985/spring/chief-seattle.html (last checked February 14, 2008)
3. "The Stewardship Doctrine: Intergenerational Justice in the United States Constitution," Constitutional Law Foundation, http://www.conlaw.org/Intergenerational-Intro.htm (last checked February 14, 2008)


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