How it Ought to Work
I have pointed out before that for most of the state’s history it was actually considered unconstitutional to adopt zoning ordinances that would restrict property owners’ use of their land and buildings. Whenever I make these points, however, many people (including some who would otherwise consider themselves strong advocates of private property rights) raise the question of how to deal with situations where your neighbor wants to build a hog farm, a casino, or a Star Wars sculpture garden that might diminish or destroy your right to use and enjoy your own property. I respond that, rather than allowing localities to restrict property rights, the proper solution would be for the affected parties to bring suit directly against the offender to receive compensation for any harm that has been done to them.
As luck would have it, a real-world example of this free-market solution has just presented itself. Dozens of property owners in Barton County, having failed to impose zoning restrictions against a proposed hog farming operation, have filed suit against the farm. While the quotes in the article make clear that the plaintiffs believe that they should have been able to use the democratic process to prevent the hog farm’s owners from locating it where they did, their lawsuit is precisely the sort of action that I have advocated. If the court finds sufficient evidence that the hog farm really has negatively affected the plaintiffs, they will be entitled to recover monetary compensation for any harms (either physical or economic) that they have suffered, and they could potentially collect punitive damages against the farm, as well. Assuming this case goes to trial, the jury will have the opportunity to evaluate the extent of the farm’s offense against its neighbors (if, in fact, their complaints are found to be legitimate) and to offer those harmed enough money to make the situation right.
While this potential outcome is not as easy or convenient as simply prohibiting or restricting the operation of the hog farm, it has several things working in its favor. First, it preserves the liberty of all the property owners, not just those who can claim a majority vote for their interests. Second, it holds the alleged offender responsible for any harms they might cause as a result of the exercise of their liberties. Third, contrary to the enforcement of ordinances or regulations, it allows those harmed to be financially compensated for the trouble caused them. And, fourth, the resolution of the conflict between hog farmer and neighbors will encourage any future hog farmers (or casino owners, or Star Wars aficionados) to negotiate and compromise with their neighbors before engaging in potentially harmful activity, because they will know that the failure to reach a prior agreement might result in financially devastating legal action.