Private vs. public property rights – a reality check

At a recent public workshop between Sussex County Council and the Sussex County Planning & Zoning Commission, a number of members of the public attended wearing stickers saying “We support property rights.” But what are property rights?

Property rights are fundamental to everyday life. Yet private-versus-public property rights are misunderstood and seem to be in constant conflict in Sussex. This conflict must be resolved, not to raise one above the other, but to bring better balance to their application.

Sussex County government over the decades has embraced a philosophy regarding development that private property rights supersede public property rights. Basic to this philosophy is the belief that, “It is my property; I can do whatever I want with it.” Rethinking that approach is long overdue.

The workshop discussed changes to county zoning codes and development regulations regarding perimeter buffers, forest preservation, open space, code updates regarding superior design and subdivision standards. This caused developers to raise the alarm that the outcome of this workshop would result in changes to the codes and regulations that would constitute a violation of property rights or an unconstitutional taking. 

This statement has been made so often in Sussex that it is accepted as fact when it is fundamentally untrue. Multiple Supreme Court decisions have set a high bar for what constitutes a taking. Even before the U.S. was the U.S., individual property rights were always subject to regulation to assure their use would not harm the broader public interests. This is well established regarding future versus current uses of a property. Government can regulate future development even if it diminishes the value of a person's property as long as it doesn't eliminate an “... economically viable use of his land." Agins v. City of Tiburon, 447 U.S. 255 (1980).

The courts have made it clear that government regulations on the use of a property are not a violation of property rights or a taking, only actions taken to balance the interests of the public and the private sector. The common use of the term property rights to state opposition to a regulatory framework is without merit and based on a false premise not supported by law.  Zoning and density regulations, stormwater management, road standards, height restrictions, resource protection, etc., are all long-established examples of regulations that impact the future use and value of a property, and in some cases, add value to it.  

Givings, as the courts have termed them, include major infrastructure such as roads, sewer and water, and other facilities and services that add significant value to individual properties but are rarely, if ever, mentioned when takings are claimed. While actual takings require compensation, givings have no requirement or tradition of reimbursement for benefits received.  The future value of a property is pure speculation and is not guaranteed by anyone. 

Landowners hoping to cash in sometime in the future on the value of their land are rolling the dice. Even conservative Justice Anton Scalia wrote in Lucas v. South Carolina Coastal Council 505 U.S. 1003, 1018 (1992), "[it] seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the state in legitimate exercise of its police powers."

Developers know that the possibility of future regulation is an inherent risk in the development business. They also know the use of the term property rights in Sussex County causes fear of lawsuits and political blowback. It is misused to protect the privileges favoring developers that have been enshrined in Sussex County development codes and regulations. It is time to for Sussex County to better understand and strike a balance between public and private property rights. SARG hopes that the recent workshop will be the beginning of many needed changes that will result in a more balanced approach to development in Sussex County.