What’s wrong with NIMBY-ISM?

Original Date: October 8, 2024

Author: Tim Platnich

Not-In-My-Backyard! Well then, in whose backyard? The slant in main stream media (MSM) is that NIMBY-ISM is always bad. Maybe it is, maybe it’s not. Are rights bad if they stand in the way of the common good? Who defines the ‘common good’?

NIMBY-ISM brings sharply into play the rule of law versus the common good. Let me explain.

In the western world, land ownership a.k.a. private property, has existed at least since the time of the Ancient Greeks. Laws protecting property rights have formed a fundamental part of criminal law codes, the Civil Code of continental Europe and of the Common Law of Britain and its former colonies.

‘Ownership’ is often described as a ‘bundle of rights’. That is, when one owns property, one has certain rights in respect of that property. These rights generally include: the right of possession, the exclusive right to enjoy the property and exclude others from entering or using the property; the right to not have the property taken away by others or the state; and the right to alienate some or all of the above rights by sale, lease and so on.

In Canada, land ownership rights have legal limitations. In cities, for example, the land comprised by the city is subject to land-use bylaws. Land-use bylaws provide for zoning. Different parts of the city are zoned for different uses. Some areas are zoned for residential use; others for commercial use; and others for industrial use. Basic zoning makes sense. No-one wants a slaughterhouse in the middle of their residential neighbourhood.

Zoning has become very complex. For example, residential use has been divided into several different kinds of residential use. One such use is low density – single dwelling house. Another use is high density - multi-dwelling buildings like apartments, condominiums, four-plexes, eight-plexes and so on.

When one buys a property, one relies upon the zoning of the property and its neighbourhood. So, one may buy a house in a neighbourhood of houses relying on the zoning laws then in place that assures no other uses are permitted in that zoning area. A citizen may pay a premium for this zoning and the benefits it brings to that citizen and that citizen’s family.

Zoning laws form part of the ‘rule of law’. The rule of law is to be distinguished from ‘rule by command’. Consider the rule of law to be like a set of game rules that everyone plays by. One player makes moves in the game based on the rules and based on the assumption everyone else is playing by the same rules. People that don’t play by the rules are cheaters.

The rule of law gives certainty. People can make decisions based on the rules.

By comparison, a society ruled by commands has no rules, no certainty, only arbitrariness. What is the rule today? What will be the rule tomorrow?

So, at great expense and risk, Person A buys a house zoned a certain way in a neighbourhood zoned a certain way. Person A is comfortable making the investment because Person A relies on the rule of law and Person A’s ownership rights being protected. The next thing Person A knows, a cell tower is being erected in Person A’s back yard. Well, society needs cell towers, right? How else are we going to have cell-phone coverage?

For the common good, the city has changed the land-use bylaw to allow cell towers to be placed on private property where required by cell-phone companies. Person A’s rights must give way to the common good – isn’t that just?

More recently, the common good being pursued is ‘affordable housing’. Everyone wants affordable housing. People show up before city councils, crying, “I can’t afford a house”. No-one wants to see poor wretched souls crying. What is to be done?

There are options. There are parts of the city that are zoned for dense residential. There are parts of the city that can be rezoned to accommodate dense residential – like conversion of office buildings (commercial) to residential use. Then there are the older neighbourhoods that have been zoned for single homes for decades. These neighbourhoods are valuable, particularly to developers. Say a developer can buy an older house, in a posh neighbourhood, for $1M; turn it into a fancy four-plex and sell each unit for $1M. Ching, ching, ching.

Let’s say Person A bought a house a few years back. Person A bought it for $1M, and relying on the existing zoning, spent another $1M in renovations. In particular, Person A expended money on a deck because of the great view of the river valley. That view was protected under the existing zoning and associated rules for building heights, set-backs etc. The rules assured Person A that no house could be built next door with height and mass that would block the view and put Person A’s house under constant shade.

Some years after the purchase, due to needed affordable housing, the city upzoned all single home neighbourhoods to multi-residential, allowing buildings to accommodate up to 8 units. This, of course, entails increasing the permissible height and mass of such buildings. A greater portion of the lot can now be used for these buildings (taking away ground that would otherwise absorb rain water). Now Person A has a massive building next door that blocks Person A’s view and puts Person A’s property into perpetual shade. The new units next door all sell for $1M. The city has created ‘affordable’ housing for millionaires at the expense of the rule of law and Person A’s rights.

Probably not what the city intended. The city’s good intentions were to provide affordable housing, including ownership and rent, for the less well-off members of the city. Can it ever be possible for prime real estate to be developed for low-cost housing? It is more likely that less costly real estate will make economic sense for low-cost housing.

Is it wrong for someone like person A above to be a NIMBY? Being a NIMBY may simply mean insisting upon respect for the rule of law and rights that should be protected under it.

There is an argument that laws are meant to be changed. City Council can make, and unmake any land-use bylaw. There is a process for amending bylaws that allow for public input. This is democracy in action. There is a counter-argument that tyranny is still tyranny, even if exercised by the democratic majority. See Toqueville’s “Democracy in America”.

In many jurisdictions, cities are moving towards blanket upzoning in the belief that such upzoning will create more units of affordable housing. This belief is commonly based on a study out of Auckland, New Zealand.

However, this study has been subject to criticism. See here. It is one thing to abrogate rights in favour of the common good where the right infringing action is either sure, or very likely, to achieve the purported good. It is another thing entirely to abrogate rights where the desired outcome of the infringing government action is unlikely or uncertain.

It seems sensible that before upzoning a particular area, proponents of the upzoning should be required to present evidence of how the upzoning in that area will increase affordable housing for the less well-off. If the evidence is unsatisfactory, all else being equal, the upzoning should be denied.

Increased affordability for millionaires should not be the basis for upzoning.

If upzoning is for the common good, the costs thereof should be borne by the entire community not just by negatively affected property owners. For example, more dense communities may require extensive infrastructure upgrades. These need to be provided for upfront and not as an after- thought. Rather than blanket upzoning, upzoning a particular neighbourhood should be considered on its own merits. Merits would include whether or not upzoning will stress existing infrastructure. If infrastructure upgrades are required, these should either be constructed first, or contemporaneously with the upzoning. Perhaps those seeking the upzoning, and standing to benefit from it, should foot the cost of infrastructure upgrades. This will encourage developers to more carefully choose the areas where they want to develop. This will be a brake on profiteers that want upzoning for their own benefit without due regard to the effects on existing residents.

It is a complicated issue. Hopefully a solution can be found that respects property rights but also truly creates affordable housing with proper infrastructure.