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The Racetrack Next Door:  Rights Incur Responsibilities

Rural Intelligence IssuesOn April 21, at the Taghkanic Fire House, at 6:30 p.m. there will be a public hearing before the Zoning Board of Appeals on the controversial issue of Alan Wilzig‘s proposed racetrack, which has already won Planning Board conditional approval.  Here, Sam Pratt, who had been a writer for national magazines before leading the successful fight against the massive, coal-fired St. Lawrence Cement proposal in Columbia County from 1998 - 2005, weighs in.  An earlier, condensed version of this piece appeared in 2006 in The Independent, the now-defunct Columbia County newspaper.

The words “property rights” often get bandied about whenever a local controversy erupts over how to use (or abuse) our landscape. Developers can always count on at least one local crank or business lobby to shout “property rights!” in a crowded public meeting.

But what does that shopworn phrase really mean?

Like the “teabaggers” who mounted (mostly lame) tax protests this past week, many self-styled Libertarians consider zoning and planning as a Soviet-style plot to defraud landowners of their personal property. Wrapping themselves in the flag and the Constitution, they act as if even the simplest social contracts are an intolerable imposition on their freedom.

In truth, such ideologues are not Libertarians at all. With their rigid opposition to the most basic rules of civil society, they sound a lot more like anarchists. For what they preach is not Liberty, but Lawlessness.

As the son of a Libertarian economist, I started hearing about “property rights” at an early age. I can report that there are, in fact, principled and thoughtful supporters of the movement.

But true Libertarians have little in common with the more visible and extreme elements who operate under the euphemistic name of the “Wise Use” movement. Wise Use is a hodgepodge of splinter groups which seek to abolish all planning, all zoning, all environmental regulation, and all oversight of corporations. Not surprisingly, these groups have some big funders among big business.

Unlike the unwise rantings of that movement, prinicipled supporters of property rights make clear distinctions between enjoying one’s freedom and engaging in a free-for-all.

The godfather of the Libertarian movement was Friedrich Hayek, an economist and philosopher who wrote eloquently about an individual’s rights to personal freedom. But even Hayek did not favor a society totally devoid of rules. In order for each individual to fully enjoy his or her freedoms, Hayek argued, society requires some underlying structure. An absence of laws would lead swiftly to an absence of liberty.

For example:

  * Freedom of travel requires enough police on the roads to make sure you’re not waylaid by bandits and highwaymen every few miles;

  * Free elections require enough election laws and agencies to protect against voter fraud; and

  * Free commerce demands enough oversight to deter rip-off artists, from low-level snake oil salesmen to high-level operators like Bernie Madoff and Ken Lay

While some imagine that “the market” will solve all such problems over time, the slow-moving machinery of free markets aren’t much help to help the person whose rights are being stepped on right now. A person getting assaulted will dial 911—not the dusty Wise Use office on the 2nd floor of a distant strip mall.

In short, principled Libertarians do believe in rules and regulations… just enough to ensure freedom, no more and no less.

The current situation in Taghkanic is instructive.

Way back in 2005, multimillionaire from New Jersey named Alan Wilzig was scouting for land Upstate. He was told explicitly by a Town official (who also happened to be his realtor) that motorized racetracks were not permitted under the local Zoning code. But instead of looking for another piece of land in another town, he bought a farm in Taghkanic, and decided to just go ahead and start bulldozing a mile-long racetrack for himself—rules be damned.

Unlike the 98% of residents who play by the Town’s minimal zoning code (seeking permits for fences around their pools and variances for their garages), Wilzig chose to live by his own private laws. Even after the local building inspector issued him an order to stop what he was doing, Wilzig appealed that decision over his head. In the meantime, he just kept on bulldozing. At least until the State fined him $50,000.

Caught red-handed, Wilzig then claimed his racetrack was just “an extension of his driveway” and a “customary accessory use” to his one- family home… See, it was no different than putting a basketball hoop on a garage, he said.

Denied that line of argument by the local Zoning Board, Wilzig went to court against the Town—and lost. After nursing this wound for a time, his next move was to back candidates in local elections, the better to stack the agencies overseeing his activities in his favor. One such agency, the Town Planning Board, has now given him conditional approval to go forward; on Tuesday, Wilzig will be back before the Zoning Board for a second try.

And sure enough, as this racetrack issue has dragged on for several years, Wilzig has tried to invoke “property rights” in his defense. His adherents (primarily those who have gained some direct advantage from allying themselves with him) have sought to paint the put-upon multimillionaire as a victim of excess regulation.

Such motormouths ignore that Wilzig’s injuries have been wholly self- inflicted. They also ignore the simple fact that not a single farmer on an ATV or teenager on a dirtbike would be affected if the Town were to restrict extraordinarily wasteful and intrustive “hobbies”—such as mile-long racetracks—which infringe on neighbors’ own property rights.

This brings us to a precept of principled Libertarianism: the so- called “swing your fist” test of personal freedom. As the saying goes: Your rights end where my nose begins. One person’s ability to free enjoyment of their own property does not extend to spoiling the rights of others. For example, musicians have every right to practice their craft in their own homes; but a residence in a crowded neighborhood is not the right place for an all-night drum studio.

Property rights do not include the right to tread on other peoples’ rights. Nor do they entitle anyone to ignore common-sense laws that reasonably protect everyone from common nuisances and hazards. Property rights incur property responsibilities, including respect for the rights and laws of the rest of the community.

Whatever happens with Wilzig’s track next Tuesday, at least it is better understood now in Taghkanic that the Town does in fact have rules — if not well-enforced or understood ones. (In Wilzig’s unique case, it is unfortunately not clear that he has learned any lesson besides how to work the system, rather than ignoring it.) But the solution to imperfect regulation is not to eliminate the rules, but to improve the regulators. In most towns, this is done at the ballot box.

Meanwhile, as battles rage across the region over local land use controversies, many towns keep struggling to adopt new or updated Comprehensive Plans. These efforts, too, run into the “property rights” buzzsaw. And unfortunately, the end product of these lengthy local dialogues is often a watered-down document which then sits on a dusty shelf, ignored and toothless.

I’d suggest a new approach. Without giving up entirely on existing Comprehensive Plan reviews, elected officials might start looking for more direct and less complicated legislative solutions to ensure that a reasonable set of individual rights are balanced with the need for community harmony. Call it a Good Neighbor Policy for each Town.

A Good Neighbor Policy would clearly spell out a set of common-sense, locally-specific standards by which members of the community respect each others’ property rights.

An agricultural community like Taghkanic could safeguard traditional farming and recreational uses, while guaranteeing open space protection and freedom from extraordinary nuisances (such as racetracks). More urban communities like Hudson or Rhinebeck would aim to balance the desire for nightlife with neighbors’ need to get a good night’s sleep.

By looking at these issues in the context of being a good neighbor, rather than through the distorted lens of divisive and doctrinaire notions of “property rights,” each town could strike its own uniquely- suited balance of individual rights and social needs. Sensible rules, more than high fences, should make good neighbors.

Common sense rules of neighborly behavior—or lawlessness? The obvious choice should be as loud and clear as a racetrack in the middle of a cornfield.

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Posted by Marilyn Bethany on 04/16/09 at 04:25 PM • Permalink