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Continuing contention over property rights

Other Voices
Terry Lamphier

A continuing source of community contentiousness is the issue of property rights — what is allowed and what should or shouldn’t be allowed for one’s use of one’s property.

Ideas on use of property range from “sovereign” (“I can do what I want”) to “commons” (land or resources belonging to the community). What is appropriate?

Our U.S. Constitution offers some guidance, via the 5th Amendment: “No person shall … be deprived … of property, without due process of law.”

Predating the Constitution was our Declaration of Independence, which set the framework for our Founders in writing the Constitution: “… all men are created equal (and) to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Our country was founded on the principle of its citizens determining their fate, utilizing due process under laws consented to by the people, implemented by its representatives and applied fairly and equally. Are we meeting that test?

Citizens give power to “electeds” to carry out laws (due process) we collectively (“the governed”) agree to; hence, we are a “democratic” republic.

Forgive me for assuming that this means laws are intended to protect the rights, including property rights, of all — and not to put the property rights of an individual above the rights of their neighbor.

There are times when a majority of the people want something from their legislators that threatens to remove rights from a minority. Under the founding concept that “all men created equal,” electeds are obligated, under our Constitution, to protect the constitutional rights of minorities as well.

Unfortunately, with regard to property rights, this does not always sit well; hence, the flaming torches and pitchforks at some governmental meetings where, without diligence, we’re at risk of George Orwell’s “Animal Farm” with some folks ending up as more equal than others.

Here are some of the prominent recent and current local property rights issues that challenge local government:

— contractor storage yards in residential areas

— marijuana grows

— home construction issues that affect the surrounding community

— legal public trail easements through private property

— commercial events in residential areas

Should government support the rights of a property owner to enjoy peace and quiet or the neighbor who starts up heavy construction equipment at 6 a.m. in preparation for taking offsite?

How do you protect the property rights of neighbors impacted by medical marijuana-growing property owners while protecting a patient’s rights?

Should a property owner have the right to build what he or she wants on their property if it impacts their neighbors?

Do private property owners have the right to ignore public easements? Do the rights of some to make a profit on one’s property outweigh others who just wish to be protected by existing zoning laws and regulations?

In all of these cases, there are positive and negative economic and social consequences. Should government rely on a common underlying philosophy (a general plan) guided by existing laws (zoning and other) or make decisions piecemeal, risking legal challenges?

At what point does altering existing regulations constitute a “taking” from property owners who bought property under a contract under then-current government zoning and regulatory laws?

Under our Constitution, government agencies establish regulations with the consent of the governed. That does not mean that they can never be changed, but it does mean that changes must be done with consent of the governed and not done capriciously because of the populist cause of the day.

In another arena and less visible are the political conflicts of free speech versus public and private properties.

Does a landlord have a right to suppress the constitutional rights of free speech of a tenant, whether the rental is a home, business location or shopping center?

More specifically, does a property owner have the right to tell a tenant he or she cannot display a campaign sign?

Do the private property rights of an owner of a mobile home or apartment complex supersede the rights of citizens when prohibiting prospective future government representatives from visiting the property owner or tenant within?

Is it a “right” to take from those residents the opportunity to make informed choices? It must be noted that a very large portion of our local voters apparently do not have the same rights as property owners.

Can government agencies grant use of public properties, such as taxpayer-supported public streets, parks and our fairgrounds, to groups that prohibit free speech?

Our country was founded on the principle of its citizens determining their fate, utilizing due process under laws consented to by the people, implemented by its representatives and applied fairly and equally. Are we meeting that test?

Terry Lamphier, who lives in Grass Valley and currently represents District 3 on the Nevada County Board of Supervisors, is a candidate for Grass Valley City Council.


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