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December 09, 2016
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You are the public

One theme that recurs constantly with regard to various issues of local concern is the balance between private rights and public good. It is apparent especially with regard to zoning, in which individual property owners are required to restrict what they do on their land by public ordinances.

In America, a country founded by a revolution against a repressive government and with a long history of celebrating individualism, this balance is all too easily seen as a matter of “me versus them,” a single personality versus some faceless abstraction of authority. “You can’t tell me what to do with my property!” is the recurring battle cry, in particular, when any attempt is made to establish new zoning ordinances—or in some local townships, any ordinances at all.

But this is a fallacy, and a dangerous one. The truth is, each and every one of us is not only a private individual, but a member of the public. Public rights are not “their” rights; they are mine. Not “me versus them,” but “my private rights and my public rights.” And if we take care to examine them, we would be no more willing to relinquish our public rights than our private rights.

It is my right, for instance, to enjoy my own property without intrusion by nuisances created by my neighbors. This, by the way, is a very ancient and venerable part of our legal tradition. The law of nuisance started to be developed shortly after the Norman Conquest (1066). Underlying the law is the principle that no one may use their property in such a way as to injure their neighbor (there’s even a Latin phrase for it, “sic utere tuo ut alienum non laedas”).

The right to be protected from nuisance can actually be regarded both as a private and as a public right. In the first instance, a landowner can find a remedy by an individual suit. But if the nuisance created is significant enough to affect the health, safety and welfare of all those in the area around the activity in question, it is seen as public nuisance as well. In the latter case, the government is the party that represents, and can protect, our public rights, and may take action—normally, nowadays, through zoning.

If I have invested my money in a quiet retreat with healthy air and water, having those properties protected and the value of my investment maintained is one of my public rights. And if someone does something with their property that debases the value of mine, that is a loss of my rights, not just an injury to some distant “public good.” How many of us would appreciate, for instance, having a junkyard set up business 50 yards from our homes? Or an industrial plant that operates at 100 decibels 24/7? Or a strip club that stays open far into the night?

Each of us has the public right to avoid these intrusions—but largely because we have the opportunity to move into zones that forbid them.

There is, of course, just one hitch. In order to secure for ourselves these public rights, we have to also be willing to restrict some of our own actions. We secure our right not to have the junkyard next door by agreeing not to establish a junkyard next to someone else’s house. We secure our own right to breathe clean air by agreeing not to do things that defile our neighbors’ air. We secure our right to be protected (as much as possible) against flooding by agreeing to maintain a certain amount of vegetation on our own property.

But this give and take can scarcely be described as submitting to tyranny. It’s simply recognizing that rights entail responsibilities, a lesson we all have to learn on the way to adulthood.

Obviously, the way that individuals can be sure that they have an input into the way their public rights are protected and administered when it comes to the enjoyment of their property is by participating in the zoning process. And there is plenty of room for discussion and difference as to what exact ordinances will serve everybody best. But there is one type of argument that really does not have a place: the argument that a town cannot or should not impose rule x, y or z just because it tells people what to do on their property. That’s what laws protecting you from nuisances have been doing for centuries. It’s not new, it’s not un-American, and it is absolutely essential for each and every individual who wishes to enjoy a decent quality of life.

The right to be protected from public nuisance

You make a prudent point, however the zoning laws are only as good as the people (The town) enforcing them. In the case where neighbors rights are being ignored and the zoning laws are being ignored as well, there is no recourse. Case in point, "gray areas of zoning". When zoning specifically states that "In any conflict in terminology of part or all of the zoning laws, the more restrictive provisions shall control(Town of Delaware Zoning page 85,#1202)",you expect special uses/variance to kick in: thus the GRAY area, more restrictive provisions controlling. One cannot anticipate the town MANIPULATING categorical placement instead at the final hour and then stating, on the record, their SUGGESTION that the business owner "take steps to mitigate the effects (of this nuisance) by using best business practices and by VOLUNTARILY making improvements to the premises to screen and shield the neighbors therefrom". You cannot be protected from nuisance without a governing body to oversee and enforce the laws. Who even needs a governing town body if it is going to be up to the property owners to mitigate circumstances? It will be the same story when and if fracking comes. The town will tell you "it is a permitted use, he can do what he wants." It will be at your cost to fight it(even though you pay taxes). The irony being, the decision will be made by the same governing body that allowed this in the first place.