Property Rights: Supreme Waffle

The Supreme Court's flip-flopping over land use regulation and private property is unfortunate. By strengthening the heavy hand of government, the Court ironically speeds migration from places where land use regulation is over-politicized.

3 minute read

April 29, 2002, 12:00 AM PDT

By Dr. Peter Gordon and Harry Richardson

Peter GordonIn its recent property rights rulings, the U.S. Supreme Court has been skittish about its approach to the "takings clause" of the 5th amendment. It shows far more deference, for example, to the 1st amendment and upholds Americans' right to view simulated child porn. Yet, in the case of the 5th amendment, the Court stands ready to balance a Constitutional right with the claims by local governments that they must regulate land use.

The case for top-down land use planning is weak and a relic of the Progressive Era. We now know that there are robust statistical correlations between prosperity and economic freedom, including secure property rights (www.FreeTheWorld.com). The other side fails to buttress its views with anything near this rich empirical record. Most international migrations are from countries with weak property rights to countries with stronger property rights. These findings corroborate the view that central planners inevitably do more harm than good because:

  1. they simply cannot replace the information gathering and disseminating functions of the market; and,
  2. their work is inevitably politicized and subject to what economists call rent-seeking, moving us from positive-sum outcomes to zero-sum situations. Top-down land use planning is not immune to these hard facts.

Some have suggested that land markets be freed, letting developers be the planners -- and letting traditional top-down planers attend to major infrastructure, thereby setting the "rules of the game". Land use would still be planned but it would be bottom-up, rather than top-down planning. Much of this is already happening in the U.S.

Since the early 1970s, most suburbanization has been via planned communities where developers do the master planning and where they establish property rules of governance and governing homeowners' associations. The development industry is highly competitive and all of these features must pass a market test. For the case of retail development, most of it is in malls which are also planned by their developers. To be sure, all of this occurs under the auspices of local government jurisdictions but most people have also been moving to the newer far-flung communities where established politics and lobbies are less entrenched.

Property owners naturally have a demand for property rules but they do not abide politicized rules that provide standing to all manner of"stakeholders" and dilute their own rights. The Court's rulings notwithstanding, people have been moving with their feet, away from top-down planning and in the direction of more bottom-up planning. The irony is that in strengthening the hand of the top-down planners, the Court inevitably speeds these migrations.


Peter Gordon, Ph.D., is director of the Master of Real Estate Development Program at the University of Southern California's School of Policy, Planning, and Development, where he has taught since 1971. Dr. Gordon writes extensively on the problems of the new urbanism and is the co-editor of the forthcoming Voluntary Cities. He is currently writing a book on the sprawl debate, and is co-editor of Planning & Markets, an electronic refereed journal.

Harry Richardson is a Professor of Planning and Economics in the School of Policy, Planning, and Development at the University of Southern California. He is the author of 21 books and about 170 papers, and his research interests include urban sprawl, metropolitan travel behavior, international urban development,natural disasters and economic impact models.

View More
portrait of professional woman

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching. Mary G., Urban Planner

I love the variety of courses, many practical, and all richly illustrated. They have inspired many ideas that I've applied in practice, and in my own teaching.

Mary G., Urban Planner

Cover CM Credits, Earn Certificates, Push Your Career Forward

Logo for Planetizen Federal Action Tracker with black and white image of U.S. Capitol with water ripple overlay.

Planetizen Federal Action Tracker

A weekly monitor of how Trump’s orders and actions are impacting planners and planning in America.

5 hours ago - Diana Ionescu

Aerial view of town of Wailuku in Maui, Hawaii with mountains in background against cloudy sunset sky.

Maui's Vacation Rental Debate Turns Ugly

Verbal attacks, misinformation campaigns and fistfights plague a high-stakes debate to convert thousands of vacation rentals into long-term housing.

July 1, 2025 - Honolulu Civil Beat

Person wearing mask walking through temporary outdoor dining setup lined with bistro lights at dusk in New York City.

Restaurant Patios Were a Pandemic Win — Why Were They so Hard to Keep?

Social distancing requirements and changes in travel patterns prompted cities to pilot new uses for street and sidewalk space. Then it got complicated.

June 19, 2025 - Diana Ionescu

Aerial view of new neifhborhood under construction with enpty lots in foreground.

In California Battle of Housing vs. Environment, Housing Just Won

A new state law significantly limits the power of CEQA, an environmental review law that served as a powerful tool for blocking new development.

6 hours ago - CALmatters

Low-rise Pearl Sreet mall in Boulfer, Colorado.

Boulder Eliminates Parking Minimums Citywide

Officials estimate the cost of building a single underground parking space at up to $100,000.

7 hours ago - Boulder Reporting Lab

Two-story buildings with porches in walkable Florida neighborhood.

Orange County, Florida Adopts Largest US “Sprawl Repair” Code

The ‘Orange Code’ seeks to rectify decades of sprawl-inducing, car-oriented development.

July 2 - CNU Public Square