Other People's Property; No Land Is an Island; The California Coastal Plan


Other People's Property, by Bernard H. Siegan, Lexington, Mass.: D.C. Heath, Lexington Books, 1976, 147 pp., $13.50

No Land Is an Island: Individual Rights and Government Control of Land Use, San Francisco, Ca.: Institute for
Contemporary Studies, 1975, 221 pp., $5.95 (paper)

The California Coastal Plan: A Critique, San Francisco, Ca.: Institute for Contemporary Studies, 1976, 199 pp., $5.95 (paper)

If there were no Bernard Siegan, we would have to invent one. The author of the path-breaking Land Use without Zoning is back with another examination of the land-use controllers in Other People's Property.

Since the publication of Land Use in 1972, Siegan has been the nemesis of planners, zoners, no-growthers, and other denizens of that beastiary. At that time he gave up his 20-year law practice and became a law professor at the University of San Diego, teaching land-use law, lecturing widely, testifying before innumerable government bodies, organizing and speaking at conferences, and apparently doing everything but writing another book.

But here it is, another and rather different kind of book on the land-use question, whose greater emphasis on the human, and normative, aspects is reflected in its title, Other People's Property. The rigorous law and economics analyses are still there, but in mellower wrappings. He discusses zoning, no-growth, rent control, housing, the National Land Use Act, the poor, wilderness areas, the taking issue, political corruption, and more.

Bernard Siegan makes his appeal to people of good will of all political persuasions—probably the most effective way to present libertarian ideas. Not only does he explain how freedom maximizes efficiency and benefits the least well-off, but he can also say very simply that there is something terribly wrong when persons have to plead for the opportunity to use their own property. This last is not a hard-edged argument; it is an argument from common decency and shared values. It is a very good argument.

During the congressional hearings on the 1974 National Land Use Act, Siegan was the only academician to testify against the measure. Afterwards, as the bill was working its way toward a vote, people came to Siegan and said, in effect, "The bill in some form is going to pass. Given that it will become law, we would like you to help us make it a better law." Opposing it in principle, Siegan refused the chance to make "constructive" changes. The bill that was sure to pass was defeated. There may be a lesson here for political realists.

No Land Is an Island and The California Coastal Plan consist of essays commissioned by the Institute for Contemporary Studies, mostly by scholars and attorneys, examining particular policy questions in some detail. While The California Coastal Plan deals with the legislative plan of one state, it has a generalizable importance—this type of measure, one of the major pieces of legislative property confiscation to come out of the environmental movement, is being copied in at least nine other states. In addition, the principles involved in the plan are applicable in a wide range of other land-use controversies.

Of course, it's fairly easy these days to get tired of reading about "the land-use issue," but I recommend that you at least stay awake for No Land Is an Island. The opening essay, by Hudson Institute consultant B. Bruce-Briggs, is in itself worth the price of admission. The author approaches the land-use problem from a fresh and disarming perspective.

In discussions of our profligate consumption of land, there is very seldom any reference to how much land there really is. Would we be appalled at the thought that urbanization is absorbing five million acres each decade if we realized that the area of the 48 contiguous states comprises almost two billion acres, so that each decade's absorption of urban land amounts to only one-fourth of one percent of the total?

The same simple arithmetic can be applied to the fearsome statistic that 70 percent of our population lives on 2 percent of our land, a pronouncement that summons up visions of oriental crowding. This "crowding" works out to a genteel three to four people per acre.

Likewise, when we take Senator Nelson's claim that surface mining occupies an area equal to a strip 100 feet wide and 1½ million miles long (to the moon and back three times) and convert this to more recognizable form, we find that that 1½ million-mile-long eyesore covers only about one percent of the land area of the lower 48 states.

Bruce-Briggs goes on to analyze problems of definition and quantification as these affect wetlands, wilderness and recreation, waterfronts, highways, urbanization, population, farmlands, and pollution. The theme of his article is that nothing in the land-use problem merits national attention.

Surveys show that an overwhelming majority of Americans want single-family homes on good-sized lots. Thus the trend of urban population has been toward lower densities, which reduce pollution problems as emissions are dispersed over a wider area. "If one were to design a low-pollution America, one would design a low-density America. Fortunately, that is the direction we are going because of individual planning choices of American families and the planning decisions of the developers and builders who profit by satisfying their wants."

Bruce-Briggs also points out problems of definition. For example, Jerome Pickard's "urban regions," which by the year 2000 will blank the entire northeastern United States, are based on a density of only 500 people per square mile—or less than one person per acre.

Then again, a widely publicized study, The Cost of Sprawl—commissioned by HUD, EPA, and the Council for Environmental Quality—announced that urban sprawl is wasteful in that it is 40 percent more expensive than concentrated development. Examination of the figures shows that almost all that "waste" is the additional cost of a large single-family house over a smaller apartment and the cost of driving a car rather than taking a bus. In other words, this "waste" is exactly the better-quality life people had sought in moving to the suburbs in the first place.

(Caveat: The current edition contains two typos. At the bottom of page 2 it should read "10 acres for every man, woman, and child." On page 6 it should read "400 years to absorb.…" The essay is chock full of quotable figures, so it's important to get them right.)

Economist M. Bruce Johnson draws on F.A. Hayek to point out that policy choices based on perceived benefits will almost always be made in favor of government action and in derogation of private rights because the benefits of the action will be clearly perceived while the cost of benefits foregone from private action are unknown (not to mention the economists' convention of assigning a zero value to individual freedom sacrificed). This is true in all matters, in free speech as well as land use. For example, the benefits of silencing a seditious or obscene speaker are obvious, while the loss in the communication of ideas is speculative and uncertain. For this reason a cost/benefit analysis can usually be made to justify censorship (or preventive detention, or coerced confessions, or no-knock searches, or whatever).

Professor Johnson, who served as a member of the California Coastal Zone Commission, also points out that the political process is biased against development, for the existing residents have a known and visible interest to protect, while the interests of the future tenants of a project are unknown and unrepresented.

These books (together with Siegan's earlier Land Use without Zoning) make up the core of a good reference library of libertarian criticisms of land-use controls. If they are to be faulted, it would be for too much "law and economics" and not enough flesh-and-blood human suffering and injustice, although Professor Siegan begins to remedy this in Other People's Property. These are not just factors of production that are being ripped off, not just indifference curves that are getting skewed; these are real people—mostly people who don't have much money, unsophisticated people who have most of their savings from a lifetime of work in their piece of land—who are being ridden over roughshod by upper-middle-class transcendentalists and petty tyrants in the local bureaucracy.

Siegan notes—and it hit home with me—how lawyers react ho-hum to tales of petty-bureacuratic high-handedness in screwing some citizen over zoning or building codes or some such. We are anesthetized by the incessant low-level injustice of the system. Since it is "only property," and the amount of money involved to the citizen in complying with these petty tyrants is much less than we would have to charge to represent them (and the inertia of courts and their deference to these public bodies is so great that we'd probably lose anyway), we discourage the citizen and tell him to make the best deal he can.

If he were a murderer or a pornographer we could do wonders for him. But if he's just going to lose the family farm because of some agency he never heard of before, well, that's too bad—"Your sort has been raping the environment for too long. It's time to think of the public interest, and if you don't like it you can write your politician." And if he's lucky he'll get interminable hearings, with law students intervening to protect the environment (for class credit), and all the while the taxes are eating the farm that his father and grandfather worked to build. It's a rotten system.

Davis Keeler, a lawyer, heads the Law and Liberty Project at the Institute for Humane Studies in Menlo Park, Ca.