Feuds in the front yard: Gardens, ordinances, and property rights

As front yard gardens continue to violate zoning ordinances, we must consider what property rights actually are. Photo: Gardener in chief Michelle Obama (AP)

WASHINGTON, April 21, 2013 — Chicago resident Kathy Cummings was recently fined $600 for growing milkweed in her garden. Ironically, the fine was issued by the same city that honored her in the past for her exceptional displays of flora.

Her plight is the merely the most recent in a series of similar cases.


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Jason Helveston of Orlando was confronted with a similar problem when the Florida city demanded he uproot the many varieties of vegetables growing in his front yard garden. The reason? Section 60.207 of the city’s Land Development Code concerning the legal requirements for residential landscaping was violated.

Alerting the authorities of the infraction was Helveston’s neighbor, Pedro Padin, who said that the gardener’s house “looks like a farm.” Padin was concerned about the garden’s potential negative effect on the value of his own property.

Ultimately, after a legal battle with the city, Helveston was allowed to keep his vegetable patch. The founder of Kitchen Gardeners International, Roger Doiron, said of the case, “This isn’t about a single garden; this is about the right to garden.”

What Doirin’s statement ultimately alludes to, however, is not some inalienable right to drag a hoe through the ground and sow seeds; rather, it rejects the abrogation of private property rights.


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Last summer, the garden battle sprouted in Karl Tricamo’s own backyard — or front yard, rather. He was ordered by the city of Ferguson, Mo., to remove his corn, tomatoes, sorghum, and other crops.

Of the zoning codes cited for the city’s action against Tricamo, Ferguson’s city manager, John Shaw, said, “At the end of the day, they’re there to protect homeowners and to protect their property value.”

Front yard gardens may indeed reduce property values. But are they violations of property rights?

Long have legal systems conflated property rights and property values, assuming the latter to be an immanent part of the former. American courts have perpetuated this fallacy, establishing the precedent that “property … may be violated without the physical taking of property” if an act “destroys it or its value.” (In re Jacobs, 98 N.Y. 98, 105 (1885).)


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Pragmatic effect notwithstanding, this position is not logically feasible within the framework of a theory of private property. Property rights exist to prevent conflict over scarce resources by protecting the physical integrity of goods against unwanted physical damage and invasion. More broadly, they ensure that the owner of a physical good is free to use his property so long as he does not interfere with others’ abilities to do the same.

The preservation of property value, however, is not a right. As economist Han-Herman Hoppe explains,

“[I]t is easy to recognize that nearly every action of an individual can alter the value (price) of someone else’s property … When A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers.”

Perhaps I decide to go on a low-carb diet; accordingly, I reduce my consumption of bread. My realignment of my relative valuation of bread obviously has a negative effect on the baker from whom I previously bought bread. Yet, even if my actions reduce the overall demand for bread, so long as I do not physically harm baker’s goods or prevent him from using them, I do not violate his property rights.

Hoppe continues,

“While a person has control over whether or not his actions will change the physical properties of another’s property, he has no control over whether or not his actions affect the value (or price) of another’s property. This is determined by other individuals and their evaluations.”

Returning to the garden situations, Padin (Helveston’s neighbor in Orlando) obviously has a low valuation of front yard gardens and is concerned that potential buyers of his property may, as well. His property value — that is, the collection of several individuals’ subjective evaluations of his physical goods — may indeed be higher in the absence of Helveston’s garden. Nonetheless, he has no right to a higher property value.

If, in some way, a garden physically damages a neighbor’s property, then the gardener has violated his neighbor’s property rights and should be held liable. But if aesthetic taste is the only thing violated, and property value is the only thing diminished, then no argument for the removal of the garden based on property rights can be logically conjured up.

 


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Joseph S. Diedrich

Joseph S. Diedrich has been a columnist at The Washington Times Communities since early 2013. He covers non-electoral politics from a libertarian perspective. His work has also been featured at the MacIver InstituteThe College Fix, and elsewhere.

Joseph is also a classically-trained composer and somewhat of a gastronomy enthusiast. Find him on Facebook, LinkedInGoogle+, and Twitter @JSDiedrich.

 

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