Density and our property rights

Several weeks ago, this column addressed Senate Bills 9 and 10, both of which deal with the controversial issue of housing policy and, more specifically, density of housing. Taxpayer advocates and neighbor associations have opposed both SB 9 and SB 10 because of the potential loss of local control and higher taxes. Both bills passed and now await action by Gov. Gavin Newsom.

Senate Bill 9 permits “by right the development of two units on single-family lots” and allows “[subdivision of] a parcel that is zoned for single-family residential use” that “in conjunction with the two-unit provision” could “result in a total of four units on the lot.”

Senate Bill 10 would “authorize a local government to adopt an ordinance to zone any parcel for up to 10 units of residential density per parcel, at a height specified in the ordinance, if the parcel is located in a transit-rich area or an urban infill site.” It would override HOA agreements and voter initiatives that prohibited or limited such development in those areas.

But proponents of these bills, including some who write for this publication, have argued that conservatives who believe in property rights should support the bills. Their contention, however, is off the mark. To understand why, the very nature of property rights must be defined. When someone “owns” property, they possess a “bundle” of ancillary rights. A bundle of rights is a term for the group of legal privileges that attaches to the owner upon purchase. The bundle includes the right of possession; the right of control; the right of exclusion; the right of enjoyment; and the right of disposition. Increases in density, when not consistent with existing law, general plans or zoning, can negatively affect most, if not all, the ancillary rights of property ownership.

For example, under Senate Bill 10, if the property is located in a “transit-rich area,” loosely defined, even if that includes quiet single-family residential neighborhoods, it is subject to new development of as much as 10 units on a single parcel. It would be naïve to believe that such an increase in density would not have a negative impact on the “right of enjoyment” of the existing owners in single-family homes.

Existing homeowners who now find themselves subject to the major disruption and loss of value associated with state-mandated zoning changes will rightly complain about the nuisance, not just in the normal sense but in the legal sense as well.

Under existing law, a private nuisance is an interference with a property owners’ use or enjoyment of property when that interference is substantial and unreasonable. One can easily envision how the construction of a ten-unit housing development in the middle of an existing neighborhood consisting of single-family homes would be a “substantial and unreasonable” interference of that enjoyment.

Admittedly, there is a balancing test that must be considered in determining the extent to which SB 9 and SB 10 diminish property rights. The addition of a single ADU — a “granny flat” — on an existing parcel that is large enough to accommodate it may not constitute substantial interference of the right of enjoyment on the part of existing homeowners. But SB 9 and 10 go much further than that.

The real tragedy here is that even the advocates of these density bills admit they will do very little to solve California’s housing crisis.

New developments could be enabled and even incentivized through reform of permitting processes. That would create far more housing than the limited amount resulting from the enactment of SB 9 and 10, and without doing violence to anyone’s property rights.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.