Town Hearing

[mweiss]

Two weeks ago, I became aware of a developer’s plans to build a 5-unit “affordable” housing development just 300’ from my property line.

There’s going to be a town meeting on the 15th, and the neighbors are having a pre-meeting tomorrow afternoon.

I have a longtime friend and neighbor who is a civil engineer, licensed in NY, who will be our “expert testimony” at the hearing.

The area to be built on is zoned for 2.5 acre lots. The subject lot is about 3 acres and the builder want to construct five homes on lot sizes as tiny as .7 acre. Because 3 of the homes are to be “affordable housing” and that the town hasn’t met the state’s quota for such housing, zoning and wetlands regulations can legally be swept aside.

The concerns are that the septic system design submitted by the builder is inadequate and will result in contamination of our wells. My civil engineer/neighbor claims the situation created will be dire and that where he works in Westchester County, such a septic plan would fall short of compliancy with minimum standards for separation of leaching fields. He emphasizes that housing this dense only works when you have city sewer system serving the complex.

I can only add historical perspective, being a 42-year resident at this location and being very conscious of the drinking water quality. In the late 1970s, when a small development was built 1/3 mile east of me, I noted a decline in the taste of our well water shortly thereafter. I can only conclude that adding more homes and septic systems will degrade our water still further.

The town will only allow two arguments at the hearing:

if they concern a public health issue

if they concern a public safety issue

I think we can argue the health issue. But obviously, the state-mandated quota for “affordable” housing implies that 3 of the 5 homes to be built are to be reserved for the “economically disadvantaged.” This hints at the possibility of undesirables moving into the neighborhood, with it’s median income of $150K.

Typically when the poor move in, there are other problems that they bring with them, including misbehaved children. Historically, over the past four decades, there have been some relatively poor families in this neighborhood and virtually all of the vandalism and property destruction caused to private property has been traced to the children of these families. One advantage of living in a wealthy neighborhood is that the kids seem to be better behaved and educated, wherein they don’t feel the need to go out and cause property damage for kicks.

This latter concern is certainly one I share. But equally so is the potential damage to the quality of our drinking water.

Given that our ability to argue against this development will be hamstrung by the restrictions mentioned above, does anyone have any suggestions for ways to approach the issue in a manner that is satisfactory to the Hearing’s rules, but gets across these other points? Towns aren’t rational, and while it may be somewhat effective to make a case that their construction will be an “initiation of force” against us by pollution of our aquifer, I think the stance will come across too bizarre for town officials to comprehend.

If you were in my shoes, how would you argue, given the situation as descibed?

[DavidOdden]

If you were in my shoes, how would you argue, given the situation as descibed?

I would argue that the developer should be allowed to build the complex with no further hindrance, and should be compensated for the waste of his time for having been forced to defend his rights. I would also argue for prosecuting those who seek to prevent him from acting in accord with his rights, and I would demand that those people be required to read Atlas Shrugged, and write a 10,000 word essay outlining how they are being evil.

[FeatherFall]

I would argue that the developer should be allowed to build the complex with no further hindrance, and should be compensated for the waste of his time for having been forced to defend his rights.

It's that cut and dry? Could you explain why Mark's well contamination isn't a factor?

[DavidOdden]

Could you explain why Mark's well contamination isn't a factor?

There is no evidence that this development trespasses on his property.

[JMeganSnow]

Indeed--well water is an "unowned" resource . . . it's not yours until you take it out of the ground and you have no right to insist that it be maintained at a certain quality at someone else's expense. Invest in a water filtration system.

You could also argue that there's no reason whatever why some of these units should be reserved for low-income housing. If the houses are going to operate on wells and the septic system is inadequate, you might consider advertising that fact to potential tenants . . . who wants to live in a house where your own waste contaminates your drinking water?

But it's unethical to go and argue that the government has the right to forbid the existence of this development.

[mweiss]

Although not entirely unexpected, I must same I am a bit surprised at how few here identified the initiation of force against neighboring homeowners by the contamination threat of this poorly-designed system.

We aren't trying to stop the developer. We just want to have him scale back the number of units to a level where the ground water won't be some badly affected. Five 4-bedroom homes on 3 acres is too much for that small tract of land. My neighbor is arguing from a civil engineering point of view, and I agree inasmuch as I've seen my own water quality decline when Gretl Lane was built in 1977.

While ground water may not belong to anyone until it is pulled out of the ground, do you really believe that it is morally justifiable to contaminate the water supply? I think that is going overboard.

Perhaps if they are justified in polluting my water, I am more justified in invading their air space with my bass, since I was here first. I'll just tell them to invest in a sound proofing system.

[mweiss]

I attended the pre-meeting and for the most part, it’s the typical ‘grasping at straws’ arguments: the concern over water quality, destruction of “open space”, and discussion of public safety issues such as the new private road creating un-plowed snow conditions that would hamper ambulance and fire department response times. Mostly addressable.

The town could stipulate a homeowner’s agreement that the road be maintained.

As for the many septics, the town could address that by bringing in city sewer systems and forcing ALL the residents along the route to pay for it (that’s a nice $20,000 assessment that has to be paid in a short span of time).

But the one thing I think we might have a chance of winning on is the fact that when the current residents bought and moved in, they did so with the expressed regulations that the area would be 2.5-acre zoned. IOW, no one would be able to build more than one home on a lot.

Now the town is changing the rules after people have made agreements, and allowing five homes to be built on this lot. To me, that recalls an earlier case I argued on in 1968 in another town, the case of Qualitron building in a zoned residential area. While that town argued that Qualitron would bring pollution, traffic and noise, Qualitron was able to address each complaint. However, I argued that the town would be in breech of it’s contractual obligation to residents to respect it’s own zoning laws. Qualitron knew it didn’t stand a chance of winning against that argument, so it’s attornies withdrew and they built the plant elsewhere.

I think this case today is the same sort of situation. The town had an implicit agreement with the land owners that these lots were to allow one home per lot. This new developer comes in and because he’s claiming to be building “affordable” homes, he gets approved to build five of them on this lot.

Another interesting side note is that “low income” around here is defined as families with $80,000 or under, annual income. So these homes would be considered low income (the median income here is $150,000.) Three of the homes would cost in excess of $800,000 and the two “affordable” homes would be priced in the mid 400s. If nothing else, this is sure to push our tax assessments up considerably.

So in a nutshell, I think we do have a moral argument here in that the town is changing the rules that the residents of that area agreed to when they bought their property and is violating the implied contract that this agreement constitutes. When the homeowner is bound to obey the zoning laws, but a developer can come in and bend the rules to such an extreme, it’s a case of uneven justice. The residents are getting shafted, despite the fact that when they moved in, the zoning would protect their property from turning into an urban area.

Given this new angle on the situation, does anyone here think we still should be fined, thrown in jail and force to read AS for protesting the town’s breech of contract with the residents?

[softwareNerd]

Given this new angle on the situation, does anyone here think we still should be fined, thrown in jail and force to read AS for protesting the town’s breech of contract with the residents?

Surely a legitimate "contract" assumes that the parties to it have a legitimate standing to enter into that contract. There is no contract here. I'll grant you it has many similarities, but it is not a contract.

Analogously, one could say that the government has a "contract" with each citizen to keep all its laws intact without change, regardless of whether those laws violate someone else's rights. So, everyone who has paid a dime into social security can claim their contract with the government disallows any change that they do not approve. Further, someone who has not paid in, but has planned his life on the expectation of paying in can make a similar claim. Similarly a citizen should be able to claim breach of contract for any law that he had expected to remain unchanged: immigration law, the existence of government departments, anything. The contract argument does not fly, because the government does not have the legitimate basis to have made the type of deal that you are assuming it has made with you. Consider yourself defrauded by a party who sold you goods to which they did not have title. In that, I sympathize with you, and can understand that you could use "contract" as a polemical tool; but, it does not reflect reality.

[Scott_Connery]

If the government is violating a perfectly valid contract, and it negatively affects you, I would say you are totally justified in doing anything you can to stop it.

[mweiss]

I think the situation is more like what SoftwareNerd describes. We’re all unwilling parties to the “contract” on land use, that is, zoning laws. However, certain parties, under the guise of helping the poor, get to bypass the laws. IOW, unequal protection under the law. Yes, we are being defrauded. But since we’re bound to uphold OUR end of the bargain by not dividing up all our land and building more housing units, how can it be that this developer can come in and do jus that?

And it certainly does negatively affect all of us. Particularly the two property owners to the south of that lot, since the setback for the two front houses is proposed to be only 10’. Imagine the horror for them of once viewing wooded wilderness, to suddenly having someone’s windows 10’ from your property line. Hell, it makes me almost want to donate some subwoofers to those two homeowners so they can blast the new neighbors daily with bass, so the new neighbors will have second thoughts about their decision to move in.

Seriously though, it’s going to negate the reason several of these people moved there in the first place. These people only recently built their homes in the past two years, and had no inkling that the town was going to forclose on the property next to them and sell it to a land developer who intends to divide it up into tiny lots and put huge houses on them, directly contravening the understood 2.5-acre zoning. So if the developer can do this, then let’s say fair is fair and all of the land owners should rightfully be able to subdivide, build more homes and sell for profit. But then it would turn the whole mountain into a crowded urban community, not what we all moved up here for.

The public hearing is this Thursday. Assuming it doesn’t get rescheduled because of the threat of the blizzard that the weathermen are predicting, at least we MIGHT get to state our thoughts for the record.

[DavidOdden]

But the one thing I think we might have a chance of winning on is the fact that when the current residents bought and moved in, they did so with the expressed regulations that the area would be 2.5-acre zoned. IOW, no one would be able to build more than one home on a lot.

That is completely, utterly and entirely not a rational expectation. It is no more rational to assume that an existing usage law will remain unchanged in perpetuity, that it is to assume that your neighbors white-painted house will remain perpetually white. Any action that is based on the presumption that an irrational law will remain in exactly that state of irrationality forever is, well, irrational. Every land-owner knows that rules change, despite protest, and often without notice.

I think this case today is the same sort of situation. The town had an implicit agreement with the land owners that these lots were to allow one home per lot.

Not in the least. There are no implicit agreements with the government -- that's where we got the welfare state from (the idea that the government has an implicit agreement with the people to provide all of their needs). You simply thought that there was some kind of agreement, and there was not.

So in a nutshell, I think we do have a moral argument here in that the town is changing the rules that the residents of that area agreed to when they bought their property and is violating the implied contract that this agreement constitutes.

This is a major trashing of the notion of contract. There is no implied contract. A contract must be voluntarily agreed to by both parties -- laws are handed down unilaterally from the government. The terms must be stated clearly -- there are no terms in this "contract" that you are imagining. This simply is not a contract. If you want to argue that it is improper for the government to restrict how the land is to be used, that is perfectly appropriate. But you are actually advocating the continued use of force by the government, to prevent the developer from exercising his rights.

Given this new angle on the situation, does anyone here think we still should be fined, thrown in jail and force to read AS for protesting the town’s breech of contract with the residents?

There is no contract, period. So you have not understood why I still advocate jail and required reading of AS, plus, I now think, some basic works on contracts. Invoking the word "contract" is, in my opinion, even worse. Try to understand what a proper contract is and why they should be enforced. Now apply that to zoning restrictions -- you should be able to clearly see that there is no contract, at all.

The fact that you may have previously been denied the right to subdivide your land and build an apartment complex does not justify inflicting that same restriction on others. More generally, your victimization does not justify forcing others to be victims.

[mrocktor]

Indeed--well water is an "unowned" resource . . . it's not yours until you take it out of the ground and you have no right to insist that it be maintained at a certain quality at someone else's expense. Invest in a water filtration system.

While I agree with yours and David's principles, in this you are wrong. His property rights include the quality of the water he gets from his well. While this is certainly not grounds for forbidding the development, if he can prove the development affected his water, he should be able to sue them for the cost of any filtration he may need.

[DavidOdden]

While this is certainly not grounds for forbidding the development, if he can prove the development affected his water, he should be able to sue them for the cost of any filtration he may need.

That is a plausible remedy. The point is not that a man may do what he wishes to his neighbors, but that he must take responsibility for his actions. Thus if a huge tree on your property falls onto a neighbor's house, and that outcome was forseeable, then the tree-owner is responsible for the damage. The rule in such cases is not that you should have no effect, it is that you should cause no damage. Mere "effect" is immaterial. If the neighbors suicidally dump gasoline into their septic tank and render the water in the neighborhood toxic, then they have trespassed and can be sued. The neighbors, not the developer. The person who causes the actual damage, not the person who built the building which the suicidal polluting neighbor moved into.

[JMeganSnow]

While I agree with yours and David's principles, in this you are wrong. His property rights include the quality of the water he gets from his well.

How? On what grounds does he own water that flows through the ground? Groundwater doesn't just sit under his property where contaminants can seep in, it moves . . . and the level changes constantly based on things like rainfall. He owns it AFTER he's drawn it up into HIS system, but until then it's basically just sitting around unclaimed.

Now, if he gets ill from water contaminants, I think that's a different matter and he can complain that the contaminators have harmed him . . . but if you have warning, would you really want to wait until you got sick just so you could sue? I'd invest in water filtration. The value of your property may decrease, but you don't have 100% control over that anyway . . . if the public schools in your neighborhood go to the dogs, your property values decrease. Who are you going to sue then?

I think there may also be a logical case if you can show that the level of contaminants are high enough to predictably cause illness, you're just not stupid enough to drink the unfiltered water any more so you haven't gotten sick . . . but I'm not sure about that. Getting your own clean drinking water (if such is what you desire) is your responsibility . . . if a well works for you, be happy that you don't have to pay someone to pipe water to you. There's no such thing as a right to have a well on your property that provides water of a certain quality. That is what we're talking about, here, correct?

[mrocktor]

There's no such thing as a right to have a well on your property that provides water of a certain quality. That is what we're talking about, here, correct?

That is exactly what we are talking about. And there is exactly that right. He presumably claimed or bought land with a well that gives good water. A well that gives good water is part of the property. If he can show that another's actions damaged his property, he has a right to compensation - which obviously rules out any changes in the water due to purely natural phenomena.

You are getting tied up in the fact that the actual water flows into his land. That is immaterial. His claim is to the land in the condition he aquired it - including the quality of the well. Think of water rights as an easment - he does not have a right to the water in his neighbor's land, but he does have a right to have that water reach him untainted. Just as he does not have a right to his neighbor's land, though he does have a right to get to and from his own property if someone buys up all the surrounding land.

[Cogito]

he does have a right to get to and from his own property if someone buys up all the surrounding land.

Does he really? People buying the surrounding land are required to let him through, even if there's no contract?

[IAmMetaphysical]

People can not have a right to something they haven't built. The right to property stems from the right to life and that right means the right to sustain that life through production of values, production meaning: taking the metaphysically given and rearranging it into something else, into the man-made. WHat you have taken from the given and made into the man-made is yours as an extension of your right to your body and the products of that body and mind. Thus someone can not "buy" land. From whom? Who owns that which they haven't made? Who has the right to say to someone "that bunch of stuff over there(metaphysically given) is off limits to you until you pay me for it, because its mine." All property should be private, not all land. You can not own land. You can own a farm, you can own a corral, you can own a football field, but you can't own a forest. You can only own what you build, and if you try building a fence around someone else, you are violating their right to freedom, just as if you tried placing handcuffs--that you own--around their wrists. The right to property does not include the right to build a prison.

Edited for spelling error.

Edited February 12, 2007 by IAmMetaphysical

[mrocktor]

Does he really? People buying the surrounding land are required to let him through, even if there's no contract?

Certainly. Assuming there was a right of way when he bought it, he can't be closed in. Taking it to an extreme case, assume he staked a claim out in the middle of nowhere and proceeds to live on his land never stepping outside of his property. If others come and claim all the land around him, he can still claim the right to enter and leave his property through theirs. Why? Because the property he claimed, and therefore owns, was unconstrained (there was simply no one else around).

Edited February 12, 2007 by mrocktor

[DavidOdden]

He presumably claimed or bought land with a well that gives good water.

No, you cannot presume that. It may be true, but its not a valid presumption -- a decent property attorney could figure that out.

His claim is to the land in the condition he aquired it - including the quality of the well.

In what state??

When a man buys a plot of land with a lovely view, he does not buy the lovely view, he buys the plot. When a man buys a plot of land miles from civilization, he does not buy a guarantee of keeping civilization miles away, he buys a plot of land. Nor does he buy a guarantee that his neighbor will not chop down his trees. Your interest in keeping your property the way it was when you first bought does not constitute a valid claim on the lives of other men. If they throw garbage on your land, that is trespassing. If you have a stream running through your property, you have a riparian right to that stream, meaning that the guy upstream cannot divert the stream from your property (that's probably the relevant legal principle for Connecticut -- out west, it's well known that water is a commodity that can be sold).

We've had a couple of threads on easements: a man only has a right to cross your property to get to his own if he has secured that right. That mean, he had to buy that right, or be sure that the right is part of his property. Same with water: if he has secured some kind of "no effect on water" right with neighboring land, then it is a right, otherwise it isn't. I'm betting it isn't.

[mrocktor]

People can not have a right to something they haven't built.

Yes they can. For instance, someone who built absolutely no improvement on a large, previously unoccupied tract of land, proceeds to live in a cave hunting the local wildlife in that area can certainly claim ownership over all the territory he roams. That little piece of the metaphysically given was identified as a resource by him - it is his. Even though he is only gathering what nature provides.

Building or transforming nature is not the root of ownership. Identifying something as a value is. For instance, a prospector on an unowned wasteland can claim ownership of a rich oil field he locates even if he never extracts a single drop - he could sell the field to an entrepeneur directly. If someone moves in and starts drilling after he stakes his claim, they are stealing.

Of course ownership cannot be claimed with absolutely no basis. There has to be an identified value and means to access it. Staking a claim on the Moon or Mars is just so much baloney until there are actual means to use them. Whoever creates those means and uses them can ignore any previous, unfounded claims.

[mrocktor]

No, you cannot presume that. It may be true, but its not a valid presumption

The presumption was for the sake of this argument - obviously he will have to establish that in order to have a claim.

Your interest in keeping your property the way it was when you first bought does not constitute a valid claim on the lives of other men. If they throw garbage on your land, that is trespassing. If you have a stream running through your property, you have a riparian right to that stream, meaning that the guy upstream cannot divert the stream from your property (that's probably the relevant legal principle for Connecticut -- out west, it's well known that water is a commodity that can be sold).

Your mere interest certainly does not constitute a claim. I also agree with you on the issues of a view or proximity of others. If you want to secure those, you have to actually own all the land in sight or all the land sepparating you from "civilization". On the other hand, if yo have a stream running through your property and a guy moves in upstream and dumps raw sewage into it - you have a claim. Same with a well.

We've had a couple of threads on easements: a man only has a right to cross your property to get to his own if he has secured that right. That mean, he had to buy that right, or be sure that the right is part of his property.

I agree. If he claimed land in the middle of nowhere, however, the right to acess is implied. He has access until someone moves in around him - they have no right to remove the access he already has.

PS: I am arguing as to what should be, not what necessarily is according to american law.

[DavidOdden]

PS: I am arguing as to what should be, not what necessarily is according to american law.

Well, if we delete the rights created by law, then that makes for an even weaker argument for water rights. Do you have an argument that there should be a law that prevents sucking a river dry, or that you have a right to well-water in any way, shape, or form? Property rights only guarantee that you have to stay off my land. Wherefrom comes your right to restrict what I do on my land? If it's not in the property's CC&R, (and it would have to come from an agreement between land owners, not fiat), there is no such right. You may rightly take whatever water you find on your land, and that is the only natural water right there is. Anything stronger has to come from stipulated law (or, negotiated agreement).

[aequalsa]

People can not have a right to something they haven't built.

This seems a little like geolibertarianism to me. Why would someone who buys an acre of land and does not improve upon it, not own it by right?

[IAmMetaphysical]

Buys it from whom, a=a?

Building or transforming nature is not the root of ownership. Identifying something as a value is

That is totally without a base. The right to property is not the right to the values you identify, it is the right to the values you MAKE. The reason this is so is because the right to life FOR MAN is the right to excercise his tool of survival, not a right to have his survival readily available to him. Someone who chooses to create no value for themselves does not have the right to the values he sees around him, he has no right to the deer he will hunt tomorrow, or the cave he hasn't furnished with a fire. The metaphysically given is up for grabs.

[mweiss]

For some perspective, I am going to post an editorial I wrote back in 1966, when my (then) home town was embroiled in a similar instance where an "exception" was being made to zoning laws that we all agreed to when we chose to buy our homes there. The exception was to allow an electronics plant right in the heart of an exclusive residential neighborhood.

The town attorney's arguments about noise, pollution and traffic congestion were all handily addressed by Qualitron's attorney. I attended the public hearings and spoke on the matter, raising points that I raised in the editorial below, but with greater emphasis on the town having an implied contract with the residents via zoning law.

This is scanned in from a clipping I saved in a file folder and is in pretty poor shape, so any typos are scanning-related:

Danbury News-Times January 25, 1966

To The Editor:

The industrial revolution has within a century brought may, to a standard of living never before dreamed of during the thousands of years of kings and serfs, masters and slaves.

There can be no doubt that industry is good for Bethel.

And to provide such an economic expansion requires planning. Such planning comes under the trust of a zoning body, and naturally raises a few questions.

Why is zoning necessary? Because it provides the broadest protection under a plan whereby all derive equal and consistent benefits. Without such a plan, any choice, which best suits the need of the individual, by observing the history of events, grows less and less until there is none.

No one has the right to presume. the action of another; and indifference to planning a consistent development of the community is the kind of default which leads to anarchy. Anarchy as much destroys human right as any dictatorship. It's just another form of destruction.

Zoning is morally correct, just as government is. Its Proper function is to protect individual right to rational action, to find ways to expand that protection as the community becomes more complex by objective means consistent with the hierarchical structure of legislation, and finally, to provide for hearing complaints which are to be adjudicated in accordance with law.

To claim that the establishment of an industrial complex in a residential area will create dangerous traffic conditions with noises, that the installation of flood lights to protect and light the industry by night along with the variety of problems arising from such a construction, is to default on the main issue by pleading as though the right of the industry to build was a foregone conclusion.

If all these secondary pleas were satisfied, then the residents would still be left with the main issue, which is: Does a governing body have the right to make an exception so as to provide a special privilege denied to others, thereby contradicting the uniform purpose of law equal protection?

Secondary pleas serve only to weaken the main argument by concession. If the main issue of individual property right is valid, and it is according to the United States Constitution, then no other claim need be made.

Now, there is another question which needs to be answered: Doesn't a man have the right to do what he pleases with his property? And who is to tell him what he can or cannot do?

A man has the right to sell his residential property to an industrial representative, since he is not responsible for the actions of others.

A man has thus fulfilled his right without infringing upon his neighbor's right of action.

The industrial representative now may do with his newly acquired property whatever he pleases, but within the limit of the law designed to protect all.

He is fully aware of the limits, and if they were not satisfactory to him, he would not have bought it. He can now proceed to build a beautiful residential home upon his property. After all, what else could he expect? Certainly not an exception.

That would be to expect a contradiction in uniformity, to hold contempt for equal justice. He would not attempt to sway the governing body (zoning) to make an exception in his case, since he knows an exemption to specified rules in the zoning context would allow a privileged few extraordinary advantages to be paid for by others adhering to the main contract.

To test this, ask if we all may have this privilege? If yes, why zone? If no discrimination.