Snowbird, American Fork Canyon, and Property Rights

It’s now common knowledge in northern Utah County: Snowbird Ski and Summer Resort wants to develop property it owns in American Fork Canyon, over the ridge from the existing resort. Setting aside the controversy over who wasn’t involved or informed as this plan was developed, it comes down to a question of property rights – as so many local issues do.

According to this recent Fox13 News story, Bob Bonar, President of Snowbird, asserts that Snowbird’s plan is within the rights of the property owner.

This is still the United States of America, after all, where we acknowledge and protect fundamental rights. Property rights are among these; we speak of them in the same breath with life, liberty, the pursuit of happiness, and freedoms of speech and religion.

On its face, it might seem simple. Snowbird owns the land, and property rights belong to the owner. That should settle the question, right? Can’t we just dismiss any opposition as grouchy politics, or as acronymic, nuisance sentimentality in a league with NIMBY (Not In My Back Yard), NOTE (Not Over There Either), BANANA (Build Absolutely Nothing Anywhere Near Anything), or NOPE (Not On Planet Earth)?

Actually, it’s not that simple. (You saw this coming, right?) Land ownership doesn’t settle the question legally or philosophically. Let’s talk about why.

The key points here are two: Fundamental rights are not absolute. And property ownership is complicated.

Let’s back away from property rights for a moment and consider the first point by looking at other fundamental rights.

I’m not one of those people who believe that fundamental rights issue from government (which would suggest that that government could limit or abolish them at will). My thinking is more attuned to the Declaration of Independence: we have God-given, inalienable rights, inherent in being human, and one of the proper roles of government is protecting these rights – but not originating them.

This much seems self-evident: In practice and in theory, even our essential, divinely-granted rights cannot be absolute. We draw boundaries around them, based on our collective experience and our best thinking. At or near these boundaries, we rightly debate a lot, but some of the limits are no-brainers.

Most Americans agree that my right to life does not protect me if I pull a gun on a police officer – even if that gun is not loaded (which the officer won’t know until it’s too late) or fake (which he also may not know until it is too late). Nor does it protect me if I break into your home and try to rape or kidnap your daughter. My right to life is not and cannot be absolute.

Of course, we debate whether an unborn child has a right to life that should protect it from being aborted, and whether my right to life should protect me from capital punishment, if I take others’ lives. We might reasonably debate whether (or how long) my right to life requires taxpayers to fund unlimited amounts of medical care to extend my life a bit.

We also constrain freedom of religion. For example, it is not a viable defense for killing people, as in jihad, crusades, or human sacrifice. It should not justify suppressing freedom of speech or press. We could easily dredge up from history (or the newspaper) other religious practices which seem like they ought to be illegal, because they infringe substantially on others’ rights. So religious freedom isn’t absolute either, and we debate a lot near the boundaries.

Freedom of speech is as fundamental as any right, but we limit it too. The famous example is Justice Oliver Wendell Holmes, Jr.’s, dictum (In Schenk v. United States, 1919): I have no right to shout fire in a crowded theater, when I know there is no fire. Given the high probability that someone will be trampled, this collides with others’ right to life.

We’ve chosen in our legal system to draw the line short of protecting speech which directly incites violence or constitutes fraud. But we fix the limits as generously as we can bear, allowing even highly inflammatory acts such as burning the flag (a subject of recurring debate) and being Donald Trump or Louis Farrakhan. Again, we debate a lot near the boundaries.

When the Declaration of Independence declares the “pursuit of happiness” to be a fundamental right, it isn’t talking about the freedom to chase happiness until we catch it. Think instead of pursuing – as in practicing or enjoying – a hobby or a career. It is the right to live as we please, to conduct our lives in a way that makes us happy, even if that’s different from what makes others happy. A few seconds’ thought will convince us that this right cannot be absolute either. If my pursuit of happiness infringes on yours – or upon someone’s right to life or free speech or freedom of religion, it will immediately be clear that someone’s rights must be limited – and probably everyone’s, to a degree.

My point is simply this: we must preserve a difficult balance among your basic rights and mine and our neighbors’.

To that end we have a host of institutions (mostly governmental) whose role includes balancing everyone’s competing rights. We protect your rights and mine by limiting both. In a perfect world, these balances would always be fair. In practice they often approach fairness, I think, even if the concept of fairness now seems to be used as often to upset the needed balance as to create it.

Back to property rights.

While Snowbird declares its property rights, others assert theirs in opposition. For example, American Fork City Councilor Brad Frost worries that his city’s water supply is threatened. And neighboring property owners worry that tall ski lifts visible from their property will diminish the value of – or their enjoyment of – their own nearby property. Both of these concerns involve property rights, because water rights are a sort of property, and property rights are also considered to include, among other things, the exclusive right to the enjoyment (or other benefits) of property, as well as an interest in preserving or enhancing its value.

Balancing competing property rights may be even more difficult than balancing some other fundamental rights. Land ownership doesn’t necessarily come with water rights (these are separate) or the right to control the airspace above one’s land, for example. In some countries it doesn’t include the right to subdivide land one owns, so as to divide it equally among several heirs. But it’s even more complicated than that.

I have heard property rights asserted in opposition to all sorts of acts and proposals by government and other property owners, including these:

• The LDS Church’s planned building of a nine-story building at its Missionary Training Center in Provo, Utah, on property it already owns. The neighbors (themselves mostly LDS) said it would spoil their mountain views – which is an assertion of property rights.
• The adoption or modification of nuisance laws, which allow a city to act against, for example, the owner of a residential property who keeps piles of garbage in his front yard. Opponents of such laws argue that the owner has the right to use or neglect his property as he pleases. Proponents of such regulations also assert property rights, citing the negative effect on neighbors’ property values and the neighbors’ reasonable enjoyment of their own property, or the hazards posed by accumulated refuse which harbors colonies of rodents.
• Proposed nondiscrimination laws, most recently those intended to protect citizens from discrimination in employment and housing on the basis of real or perceived sexual orientation or gender identity. Besides appealing to religious freedom and religious dogma (a possible contradiction, I know), opponents commonly assert property rights, arguing that a business owner or landlord should be free to choose, refuse, or turn out tenants or employees based on these matters, if he wishes.

Zoning laws are widely accepted, but not universally so. They substantially limit property rights. For example, I would not be allowed to raze my home – in my quiet, residential neighborhood – and open a Wendy’s franchise. My lot is in a single-family residential zone, and Wendy’s is a commercial venture. Nor am I permitted to replace my home with a six-unit apartment building and rent out the apartments. This would require a multifamily zone.

I could argue against these limitations, claiming that my property rights should be absolute – but I would be claiming that my property rights trump my neighbors’ property rights, when they don’t.

The range of issues involving property rights is broad, and the passions run deep. Few local political debates are hotter than the ones where a landowner wants the zoning of his property changed from agricultural to commercial – which causes its value to soar – but the residents of the quiet adjacent neighborhood want it kept agricultural, or at least changed only to residential. The landowner seeking the change asserts his property rights; the neighbors point to the possible loss of value of their own adjacent properties.

And I haven’t even mentioned mineral rights, easements, rights-of-way, or a property owner’s responsibility to clean up environmental hazards on her land. I have mentioned water rights. Wars – official and otherwise – are fought over water. Some of the bloodshed in the Wild, Wild West involved disputes over water. And unless I miss my guess, the vast and growing demands of large populations in California, Nevada, and Arizona, which rely heavily on water from other states, hold the potential for much conflict.

In weighing everyone’s property rights, most American communities have struck a balance which more or less works most of the time. I don’t know anyone who attends to such matters who believes that the balance is always perfectly fair to everyone, or that it should never change. But it mostly keeps the peace.

Again, if there is a single theoretical point here, it is this: My rights, though God-given and inalienable, are not absolute. They do not trump your inalienable and God-given rights. All these rights must be balanced against each other. This does not destroy our rights. It protects them.

Specifically, property rights are not absolute. Yours do not trump mine. Mine do not trump yours. They must be balanced against each other, or they will cease to exist for all but the most powerful among us.

Which brings us back to the practical application with which we began. When a ski resort proposes to cross into American Fork Canyon to develop property it owns there, its property rights are not absolute. They do not automatically supersede the rights of neighboring property owners, the presence of established easements or rights-of-way, or any water rights which may be affected. For example, if American Fork City insists that planned development be delayed long enough to satisfy its leaders and people – through careful studies – that its impact on their water supply will be negligible, then it should be delayed.

If credible studies find that there will be a significant impact on or threat to American Fork’s water supply, then it is perfectly reasonable to weigh that in the balance – and to require Snowbird to limit its development in ways that will reasonably protect that water supply.

Nor can we automatically dismiss concerns about views or rights-of-way, just because Snowbird owns the land.

This does not suspend Snowbird’s property rights; nor does it limit anything which was unlimited before. All of our essential rights have essential limits. We protect everyone’s property rights by seeking a reasonable balance.

Granted, the Snowbird flap is not just about water rights, views, and rights-of-way. There are serious questions about governmental processes which may have been abused.

But the basic point remains: we protect rights by limiting and balancing them.