The Boulder City Council’s recent handling of their attempted “emergency” vote to limit “McMansions” provides an excellent opportunity to step back and consider the importance of property rights and principles of good governance.
Why do we as a society care about property rights?
Primarily, we care about property rights because they are inextricably linked to increasing our collective prosperity. “On average, GDP per capita, measured in terms of purchasing power parity, is twice as high in nations with the strongest protection of property than in those providing only fairly good protection,” according to a study of property rights published by the Heritage Foundation. The reason this is so is because people are more willing to improve their property to its highest and best use when they know their rights are protected.
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Conversely, when people do not feel secure in their property rights, when they feel the government can change or remove their rights without due process and fairness, people are not as willing to make improvements to their property and collective prosperity falls.
From the above, we see that good governance is critical to protecting property rights and improving collective prosperity, but what is good governance made of? According to the United Nations, the characteristics of good governance include participation, rule of law, transparency, responsiveness, and accountability, among others. Standing in opposition to good governance are arbitrariness and capriciousness.
Let’s look at the definitions of these words and consider which terms most aptly describe the City Council’s recent actions.
• Definition: based on random choice or personal whim, rather than any reason or system; (of power or a ruling body) unrestrained and autocratic in the use of authority.
• The term arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards. An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence.
• Antonym: democratic
• Definition: given to sudden and unaccountable changes of mood or behavior; unpredictable and subject to whim.
• Antonym: consistent
A summary of the facts
On Oct. 15, Councilwoman Lisa Morzel requested that the council consider the following day an “emergency” temporary ordinance to stop the city from processing permits for homes over 3,500 square feet on lots 10,000 square feet or larger (clearly, a “McMansion” is much smaller than an actual mansion). At the time, Morzel declined to articulate the cause of the emergency; nevertheless, the council added it to their agenda for the following day. On Oct. 16, the City Council considered the motion and heard from 22 people, almost all of whom spoke in opposition to the motion. Apparently because Councilwoman Cindy Carlisle was absent and an emergency motion requires a two-thirds majority to pass, council declined to vote on the measure, but noted that the issue may be considered again in December.
Evaluating the City Council’s actions
It does not appear to me that the above actions were consistent with the good governance principles. One day’s notice did not allow all interested stakeholders to participate, lacked transparency because no reason for emergency action was articulated, and appears to have been taken in an attempt to avoid accountability.
Instead, the City Council’s apparent ambush-style attack on property rights appears to meet the very definitions of arbitrary and capricious — two terms that most governing bodies would not seek to embody. First, rather than having an articulated reason that the issue of “McMansions” is suddenly an emergency, the decision to consider the issue on one-day’s notice appears to be based on a “personal whim, rather than any reason,” perhaps better explained by a “sudden and unaccountable change of mood.” Second, applying the moratorium only to homes over 3,500 square feet on lots 10,000 square feet or larger seems arbitrary (disregarding the facts and circumstances) when one considers that a person owning a 9,999 square foot lot could still build a 4,100 square foot home.
An appeal for good governance
Reducing the potential value of people’s property (likely their most valuable asset) is a serious diminution of their rights, and while the City Council likely has the authority to do so, such action should only be taken, if at all, after a process conducted in accordance with the principles of good governance.
Jay Kalinski is broker/owner of Re/Max of Boulder.