O’Toole’s Bizarre ‘Libertarian’ Case for Land-Use Socialism

In an article and follow-up post, I argued that Colorado Bill 213 would on net better-recognize people’s property rights. I have yet to read any commentary causing me to doubt this. Natalie Menten does raise some good objections to the bill in its original form. For example, it interferes with HOAs (something I mentioned) and comes with housing subsidies.

But the simple fact that Menten ignores is that this bill would vastly better-respect people’s rights to use and develop their own property. That’s the key issue.

The way that we can tell that Republican critics of the bill are not serious about economic liberty is that Republicans have not themselves introduced or endorsed a “clean” version of the bill. They haven’t done it, because they don’t want to do it, because, on the whole, they are a bunch of socialists when it comes to residential property rights.

Ah, but Menten has an authority to lean on, an article by Randal O’Toole. (I didn’t know Bill Bradford’s old Liberty was still publishing content online!) So let’s look at O’Toole’s case for single-family zoning.

Initially, O’Toole is not writing about government expanding people’s ability to use their land; he’s talking about government restricting it:

City planners want to force most urban Americans to live in multifamily housing. By scaring people about disappearing farmlands, pollution, and climate change, they have persuaded state and regional governments, mainly in coastal states, to restrict development of new single-family homes, thus creating artificial housing shortages that prevent many people from realizing their preference of living in a single-family home.

O’Toole goes on to talk about the problem of regional governments taking many properties off the table entirely for development. That’s a separate issue from land-use rules for existing residential properties. (Note: Governments can buy up lands too.)

What we are (mainly) talking about in the Colorado context is allowing people who currently own property with a single-family home to build a secondary residence on the property or to develop a multiple-family structure. So at issue is whether governments will forcibly stop people from developing more than a single-family structure or allow them to build whatever they want (within broader limits). What we are not talking about is forcing people currently with a single-family structure to replace it with a multi-family structure.

Then O’Toole’s argument takes a bizarre turn: In effect he claims that your neighbors have a property right in your property, regardless of whether you ever agreed to any land-use restrictions. This is a form of collectivism. Here is what O’Toole writes:

Effectively, living in a single-family neighborhood can be a property right. People buying a lot or home in a neighborhood with covenants agrees never to build more than a single-family home on their property, on the condition that their neighbors also don’t built more than single-family homes. The same is true for single-family zoning.

Nevertheless, density advocates have managed to convince some libertarians to support the abolition of single-family zoning by arguing that such zoning violates people’s property rights. In fact, zoning has been around for so long that virtually everyone who owns a home in a neighborhood zoned for single-family housing bought that home after it was already zoned. This means that almost no one today has “lost” property rights by buying a home and then having it zoned for single-family. In fact, residents of single-family neighborhoods who object to multifamily housing have specifically stated that they believe rezoning for higher densities takes away their property rights.

Here O’Toole absurdly equates voluntary associations with unilateral government force. Note that O’Toole’s “argument” could be used to rationalize virtually any government regulation. For example, when Colorado moved to allow beer and then wine sales in grocery stores, owners of existing liquor stores said they had bought in to a system that forcibly restricts the market, so they had a “right” to the continuation of those restrictions. Any such claim is obvious bullshit. You have no “right” to continue to use government force against your neighbors, simply because you have used such force in the past.

Again, Home Owners’ Associations are a different story. A “clean” association starts with the purchase of a large property, which is then subdivided into individually owned properties that in some respects become subject to communal will. But these are explicit, written down, unanimous agreements.

If existing owners of single-family homes want to get together and agree to form an HOA in their neighborhood, by unanimous consent, let them. (My family owns a single-family home, and I have no interest in any such restrictions.) If someone on the street does not wish to sign, that is that person’s right. If the neighbors then have to put up with one or more properties on the block each housing more than one family, they’re just going to have to live with that. You have no right to dictate what other people do with their property.

Let us be blunt here. What precisely O’Toole is arguing is that people should be able to use the force of government to achieve class-segregated neighborhoods. Colorado is better than that.

Image: Sightline Institute