The Boulder Daily Camera published my piece in response to Boulder’s proposed “pop-and-scrape” land use regulations:
Government has no right to legislate how you build on your property. However, if you’re concerned that your neighbors will block a scenic view, or paint a mural of Elvis on their house, there are ways to deal with such potential conflicts without empowering government to make
One approach involves what Professor Robert H. Nelson calls “Privatizing the Neighborhood:” buying a home affiliated with a homeowners’ association (HOA) that has an architectural rules
committee. [See here, here, and here] Unlike a government, HOAs cannot extend their jurisdiction to homeowners who have not opted in. Since HOAs are very local and small, participants are often neighbors and hence have incentive to settle disagreements in a civil manner. You would also have more influence on your HOA than on Boulder City Council.
A different approach uses common law rather than legislation. Under English Common Law’s “ancient lights” easement, neighboring property owners could own the space above a neighboring property. For example, if they are long-time owners and construction of a tall building would block light from reaching their property. A developer wanting to build a tall building could conceivably offer to purchase the easement for a negotiated price. Conversely, concerned citizens could negotiate a light and air easement over a property.
Compared to the proposed “pop and scrape” legislation, HOAs and common law traditions allow for variations in individual preferences and situations and allow creative methods of conflict resolution. Rigid legislation does not allow for that, and just rouses political conflict.