Meanwhile this enables nuclear power plant siting.

When locals bring NIMBY lawsuits in order to protect their property rights, that is to protect the value of their home or business from nuclear accidents (uninsured) or contamination (unregulated by default), the nuke plant owner/builder will sue over THEIR property rights.

The "right" to reap obscene levels of corporate profits from taxpayers and power consumers with dangerous uninsurable technology.

This better become a nation ruled by and for we the people instead of one ruled by and for corporate corruption.  Please VOTE Nov 7th!!

Vote corporate "citizens" out of power.  You know the party that has  been possesed by corporate crime.  Vote for the other one.

http://amazngdrx.blogharbor.com/blog

Insteresting stuff, Laurence. I've even found reference to property setbacks dating from Roman antiquity. As I understand it, property owners near roads had to observe certain restrictions so that the highways of commerce could function unimpeded. It underscores the extent to which restrictions on property create the conditions under which Western society and all of it's features -- commerce, cultural exchange, environmental and health protections, and so on -- can flourish. Without these restrictions we'd be left with something very close to a Hobbesian anarchy that's ripe for abuses by the powerful few. Point is, I guess, the radical property rights viewpoint -- that I can do ANYTHING I want on my property -- isn't just un-American, it's antithetical to Western civilization. (Not to hype up the rhetoric or anything!)

Patrick,
I think that's a very important contribution to the conversation. You're absolutely right that we should be sensitive to unfairness.
To my way of thinking, zoning is a tool that's only as helpful (and moral) as the democracy that wields it. In that way it's like so many other of our institutions -- say, police power. It can be abused for awful ends, but I sure as heck wouldn't want to live without it. And I sure as heck wouldn't want to take it out of democratic oversight.

Patrick, you're blaming the victim for the problem.

People who want to protect the environment have to operate in a system of laws written by and for the benefit of the wealthy; the law in America is that, absent a statute giving someone standing to complain about an environmental ill, the only people who CAN come into court to stop it are those who can point to a present, concrete injury.  I would estimate that half the problem in stopping any environmental problem is that you have to find a plaintiff who is willing to allege an injury--which means you wind up having to try to convince people who work for the polluter or who must send their kids to schools in towns dominated by the offending industry to bring a challenge to the polluting practice.  Nobody else--no "outsiders" will be allowed into court--they get thrown out for lack of standing.

Worse, in our deranged system of economics, preserving the common natural resources we all depend on (you know, clean air, water, etc.) doesn't count, because you don't have title to them.  

And the law considers most health claims "too speculative" -- in other words, you have to wait until your kids have asthma and your garden produce is toxic before you will be found to have standing ... and then you will be drilled with hired-gun "experts" who will opine that your kids' asthma is because you smoke, or your house is dirty, or is genetic, or because of traffic, or . . .

In other words, the "drop in property value" is one of the few injuries resulting from environmental harms that our legal system is prepared to recognize.

So the right wing didn't get the "drop in property rights" cudgel from environmentalists--rather, environmentalists have had to learn to use it because, otherwise, the legal system is perfectly happy to follow economics over the cliff and allow corporations to destroy the planet while maximizing GDP.

I wouldn't be surprised if the earliest known cities in Mesopotamia had some kind of land-use restrictions, too.  Lots of humans living in close quarters means lots of arguments, and there is only so much variety to those arguments, so that fairly quickly someone gets the idea to codify what was decided the last time someone had this same argument, and just do the same thing that was done then.  That said, the restrictions have undergone a vast shift in the last ~150 years.

The rise of zoning as we know it today in American cities came about because of the Victorian obsession with the sacredness of the home.  Previous restrictions on land use tended to be of a limited nature, for instance specifying characteristics of the building that could be built on a site (implying that this only applied to the first building, not any subsequent structures that might supplement or replace the first one).  Perpetual covenants, easements, etc,that could be enforced by a neighbor were established by Parker v. Nightingale in Boston in 1862 (prior to this, the seller of the property was usually the only person with standing).  Parker wanted to enforce a covenant (introduced by the subdivider who had sold the property encompassing both his and Nightingale's lots) providing for residential development only, and that's why we have zoning as it exists in America today (this is the short version, trust me).

People want to be able to do whatever they want, but they also want their neighbors not to have the same liberty.  In the end, people want the latter even more than the former, so they've taken  Parker to its logical conclusion, to the extent that most people can no longer conceive of a world in which their neighbors would be allowed to cram a zillion houses, or a noxious industrial plant, on the lot next door.  They're going to be awfully surprised...

It must also be noted that, at least in part, governments have brought these new takings laws on themselves by letting eminent domain be abused so egregiously.

The legal basis of zoning always has been the maintenance of health, safety and welfare standards.

After I read the Rosen paper, I wondered something. When industrial pollution began impacting the quality of urban life in the 19th century, the law could not adapt to rapid change. Judges and juries were blind to the harms caused by new technologies, a blindness that seems to be rooted in cognitive psychology.

One idea that might be worth exploring is that zoning as we know it is in part a response to the extreme complexity of contemporary pollution sources. It could be that trying to sort out the specific harms of each pollutant or activity became overwhelmingly burdensome to the court system. It was much easier to segregate all production activities from residential areas rather than try to to identify which ones were compatible with residences.

This is related to Eric's idea of needing flexibility to respond to unforeseen threats.

   Thanks Eric, I agree with you.  I should make it clear that I am not against zoning (and would never vote for the stupid takings laws!!).

   Does anyone remember Propostion 13 in California?  It put severe limits on property taxes and helped destroy the California public school system.  It was opposed by all the leaders in the state, but passed anyway.  It's supporters looked a lot like the takings folks, right wing cranks.

   So, what happened?  It turned out that there were real problems out there that weren't being addressed by our "leaders" and people freaked out and passed a very very bad law.

   California has been paying for it ever since.

   I have two cocerns.  One is that we be careful not to dismiss people's complaints about property zoning regulation out of hand.  We should listen carefully and be sure before dismissing them as cranks.  

   The other does have to do with the many problems caused by zoning when used primarily in a NIMBY way.

   JMG, you misunderstand me.  And I do have a solution for you.  Work to change the laws that let corporations off the hook for their actions (interestingly, one of the human rights issues with China is that they sometimes execute corrupt officials and business leaders for such actions.... hmmmm).

   The danger of the environmentalists actions is that it has contributed to opening the door to the "takings" folk, so that in the long run, if they win, things will be worse.

   TANSTAAFL.  Beware.

patrick