The Boulder City Council on Tuesday night agreed on the details of new house-size regulations in Boulder, and are likely to approve the ordinance at a special meeting Thursday night. This week, they eased some of the earlier suggestions – for instance, they will allow a single-family home to cover up to 35 percent of a lot, up from 30 percent – but some opponents and two former mayors are still against the measure.

My response in the Daily Camera, September 18, 2009:

The City has no right to restrict the size of a home on a property owner’s land.  The land does not belong to the city. If the City Council, or anyone for that matter, wants to prevent construction on part of a home lot, they should go about it peacefully, without threatening people with political force.

Here’s an idea: buy the land with your own resources.  It’s called an easement. To quote a dictionary definition, an easement is “a right held by one property owner to make use of the land of another for a limited purpose.”  If you want to prevent construction on someone else’s lot, then offer to buy an easement on part of the lot.  If cost is an issue, you can pool money from like-minded neighbors and entice the lot owner with a generous offer. To learn more, do a web search for “how to buy an easement.”

Other alternatives to government prohibitions on land use include Homeowners Associations and, to use a legal term, “covenants running with the land.” You can look this up, too.  If Boulder laws stand in the way of HOAs, easements, or covenants, then perhaps they need revising.

To generalize my point I’ll adapt JFK’s words: Ask not what your government can force other people to do for you.  Ask what you can do for yourself, and how you can cooperate with others on a voluntary basis to achieve your values.

Government has no right to legislate how you build on your property.  However, if you’re concerned that your neighbors will block a scenic view, or paint a mural of Elvis on their house, there are ways to deal  with such potential conflicts without empowering government to make
one-size-fits-all legislation.

One approach involves what Professor Robert H. Nelson calls “Privatizing the Neighborhood:” buying a home affiliated with a homeowners’ association (HOA) that has an architectural rules
committee. [See here, here, and here] Unlike a government, HOAs cannot extend their jurisdiction to homeowners who have not opted in. Since HOAs are very local and small, participants are often neighbors and hence have incentive to settle disagreements in a civil manner. You would also have more influence on your HOA than on Boulder City Council.

A different approach uses common law rather than legislation. Under English Common Law’s “ancient lights” easement, neighboring property owners could own the space above a neighboring property. For example, if they are long-time owners and construction of a tall building would block light from reaching their property. A developer wanting to build a tall building could conceivably offer to purchase the easement for a negotiated price. Conversely, concerned citizens could negotiate a light and air easement over a property.

Compared to the proposed “pop and scrape” legislation, HOAs and common law traditions allow for variations in individual preferences and  situations and allow creative methods of conflict resolution. Rigid  legislation does not allow for that, and just rouses political conflict.

(Thanks to Ari Armstrong, Paul Hsieh, Ralph Shnelvar, and Randal O’Toole for their suggestions.)