The freedom of property owners to decide their own fate and to reap the fruit or bitter harvest of their labors is under a subtle but direct assault in the East Valley.
Consider this litany of stories from the Tribune this year:
• The Tempe City Council responds to protests from that city’s northern residents and turns down a use permit for a tattoo parlor because of the “perception” that such a business would be bad for the neighborhood.
• The Mesa Planning and Zoning Commission seeks to stop the opening of a pawn shop at University Drive and Alma School Road because some residents have determined this type of business has reached area saturation.
• The Scottsdale City Council considers blocking two proposed buildings in the downtown area because of complaints the designs wouldn’t match existing Western themes. A council member described one of the buildings as not having enough “whimsy.”
• A group of Gilbert residents forces a citywide election on a proposed retail shopping center because they didn’t believe their city should take the risk that the stores might go out of business.
• And developer JCA Holdings has had 33 different proposals rejected for the northeast corner of Power and McDowell roads, a clear sign that residents of Mesa’s upscale Las Sendas subdivision would rather not have anything built on that neighboring spot.
In each of these cases, the critics didn’t point to any bad track records for the property owners, or to a unique incompatibility between the proposed development and adjacent land. Instead, the neighbors have invoked an idea that the community as a whole is the best judge of how to use this private land, or at least they have better judgment than the people who would risk their time, sweat and fortunes on success or failure.
The tension between the rights of property owners and the interests of their neighbors is not a recent issue, but a question that dates back to the founding of this country. If we as a community can decide to forbid any more pawn shops or tattoo parlors, no matter how properly those businesses are run, then tomorrow we can decide to outlaw fast-food restaurants, or banks or day care centers.
Or we can dictate the skin color and ethnic background of who lives next to us. The U.S. Supreme Court confronted this issue in 1917 when it unanimously struck down a Louisville, Ky., city ordinance that essentially prevented a white homeowner from selling to a black person and visa versa.
“Property is more than the mere thing which a person owns,” Justice William Day wrote for the court, as quoted in the December issue of Reason magazine. “It is elementary that it includes the right to acquire, use and dispose of it.”
If possession of property fails to include a protected right to develop it, property ownership essentially becomes a privilege that can be revoked at the arbitrary whim of a city council or the 10 percent of all voters who turn out for a city election. Or, as John Adams, the nation’s second president, described it in 1787:
“The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
All is not lost, as Gilbert voters refused earlier this month to interfere with the shopping center, the Scottsdale buildings finally were approved and the Goldwater Institute will ask a judge to stop Tempe from trampling on the proposed tattoo parlor.
But it’s a shame that so many people have lost sight of this central tenet of American freedom and capitalism that has served us so well for more than two centuries.