If I own a piece of property, should I get to do whatever I want with it?
From the perspective of a property owner, that sounds a lot like freedom. Indeed, property ownership has, since the nation's founding, been seen as a kind of holy grail of the American experience. The Fifth Amendment to the U.S. Constitution, for example, doesn't exist just to make sure friends and colleagues of an ex-president can keep their mouths shut to avoid incriminating themselves. The amendment also formalizes the founders' high regard for private property, establishing that government cannot take anyone's property for public use without just compensation.
The question heard over and over in the courts is this: When does a "taking" occur?
The answer is obvious when the Arkansas Department of Transportation begins to acquire right of way to expand a highway, for example. You can't build a highway without acquiring some property.
But what about government regulation of property? If the government prevents you from building a pig farm because of environmental concerns, have they in effect "taken" your property by denying you the right to use it as you see fit? Some property rights advocates question whether one can be said to own a property if government can control the activities that can occur there.
Every property owner cherishes property rights ... until one of their neighbors comes up with a use for his property that other nearby property owners find offensive. Then property rights gets flipped on its head. When the activities on your property get in the way of me enjoying the use of my property, well, that's where Hatfields-and-McCoys-types of conflicts can happen.
Particularly within urban environments, property uses create conflicts every day. In Fayetteville, city officials face a particularly delicate situation in a community that devotes considerable resources to helping the homeless.
As reported (in the Northwest Arkansas Democrat-Gazette) last week, Richard Tiffany owns property next to the Fayetteville National Cemetery, a beautifully reverent final resting place for people who gave of themselves in military service to our nation. He's chosen, for years, to allow homeless people to set up their encampments, for free, on his property. The number of people taking advantage of his kindness has grown, with 10 to 12 individuals there at peak times.
Under city regulations, a property owner can't just begin operating a campground without a conditional-use permit from city government. The regs require a process, through which the city can evaluate the impact of such uses on surrounding properties and the public. Tiffany has been notified he's violating city ordinances.
Tiffany's property has required a response from emergency services -- law enforcement, fire, etc. -- nearly 450 times in the last decade. Beyond that, people attending burials or memorial services at the national cemetery have reported disruptions from people on Tiffany's property -- loud noise, cursing, aggressive behaviors, trash, odors.
Should Tiffany be free to do whatever he wants on the property? Does he bear some responsibility for the impact of his choices on others nearby? Should the city give him a pass because his permissiveness about who uses his property is good-natured?
Should chaos and disruption be an acceptable result of one's property use?
A response to Fayetteville's homelessness challenges needs to be orderly, and places like 7Hills Homeless Center and New Beginnings attempt to respond in such a way. Tiffany's open-ended, open-door policy for his property is kind, but it's also an inadequate response that creates as many problems as it solves. It actually solves very little.
It's the city's job to make sure adjacent lands have compatible uses, that nuisances are diminished and neighbors rights are protected, too. Allowing disruptive, make-shift campsites is a recipe to diminish everyone's quality of life.