Thoughts on property

After moving to Wyoming about ten months ago, we still have numerous unopened boxes strewn about. There's probably a pertinent post I could do about the utility of owning so much junk, but that is for another day. You see, yesterday, The Wife finally got the whip cracking on our unopened boxes of books and I came across this gem of a book:

Bill Moshofsky is a strong property rights advocate, and one of the major promoters of Oregon's Measure 37, a ballot measure that requires state and local governments to compensate a landowner when regulation inhibits a landowner's use of their land. You want urban growth boundaries and zoning ordinances that prohibit me from subdividing my farm and creating new urban sprawl? Fine, but it will be a taking and you need to pay up.

According to the book description from the publisher (I haven't actually read the book, although I have heard Mr. Moshofsky speak on several occasions):

The land use regulatory system needlessly crams almost all people and development on less than 2% of the land in the state, unfairly strips landowners of their rights to use their land, blocks development and escalates its cost, makes housing unaffordable, misdirects resources, hurts the economy, intentionally increases traffi c congestion, impairs quality of life, and reduces tax revenues needed for schools and public services.

Seeing this book reminded me of a very interesting article entitled Goodbye to the Public-Private Divide by Eric Freyfogle, a law professor at the University of Illinois. While his article touches on numerous issues, one of his main points goes something like this: Private rights in land are defined by law which, in turn, only is legitimate if in the public interest. Thus, private rights in land only are legitimate if they serve the public good.

This changes the dialogue from "I can do whatever I want with my land so long as I don't harm my neighbors" to "I have rights in my land so long as it serves the public good."

Obviously, these two views of property rights are at opposite ends of the spectrum. While I like the logic of Mr. Freyfogle's position, in actuality, a court likely would define property rights somewhere between the two--or at least interpret the public good necessary under Mr. Freyfogle's analysis quite broadly.

Turning back to Mr. Moshofsky, there are two points worth mentioning here. First, his property rights view is an obvious expansion of the property rights afforded by the U.S. and state constitutions and law. Regulatory takings certainly exist, but not on this scale--Mr. Moshofsky would create property rights where they previously didn't exist. Second, his book description states that one problem of land use regulation is that it "makes housing unaffordable." If regulation increases housing costs (and property values), removing regulation must decreases costs (and value). Thus, we are just moving money around. Do we want concentrated urban areas of high property values and rural areas of lower property values? Or, do we want a sprawling landscape where everything is moderately valued but there is no open landscape? Just moving money around (and altering the landscape), right?

Going back to Mr. Freyfogle, where is the public good in Measure 37-style property rights? After all, if the law--and an implemented measure 37 becomes law--doesn't serve the public good, it should be an invalid exercise of governmental power. Right?