OPC: January 25, 2012 SMP Heights and Views

Tonight, we welcome back a favorite discussion to the Olympia Planning Commission’s deliberation of the Shoreline Master Program draft: height limitation and view protection.

If the OPC is sincerely attempting to approach heights and views, our discussion will be deeply embedded in the context of both our collective rights and individual rights. Personally, I love issues that require this contextual apparatus—perhaps not in a citizen advisory committee—but I do love thinking about this construct. By collective I mean the rights that we all share in common, as a group, or at the very least the rights that one individual within that group cannot appropriate to her individual benefit. An individual right of course is the converse: a right that someone holds individually and has the power to do with as he pleases.

Heights and views are a perfect example of the intersection of these rights. From the perspective of individual rights, a private property owner can do whatever she wants with her land. On the other hand, the actions of that individual on that land have collective implications, and sometime those implications may impact the rights we share in common. (I know that some people don’t like the word collective. May the Cold War rest in peace.) What about the converse? Do our collective rights ever impact the individuals which comprise the group? Perhaps someday we’ll consult Thomas Hobbes, Jean Jacque Rousseau, John Locke, Publius Valerius Publicola, John Stuart Mill, Karl Marx (May the Cold War rest in peace), Max Weber, and Emile Durkheim on that extremely complicated but most enlightening and ultimately beautiful question.

The long and short of it is we have organized ourselves over the last millennium in such a way that we try to maintain individual rights, but we understand that those individual rights are subject to the actions we take as groups, and most importantly it’s not going to work perfectly to make everyone happy. In theory, they work together to ensure the greatest potential human freedom.  That’s essentially the argument for government, from the constitution to your neighborhood association bylaws. Our collective rights usually maintain the kind of language you hear in the Declaration of Independence, the Gettysburg Address (“For the people.” not “for the individual.”), and the Consitution (“We the People” not “I the individual”). The basic idea is that we understand that without some kind of basic rights, guarantees, and rules on a collective scale, we cannot ensure that any single individual can maintain those rights beyond her ability to enforce that with the means at her disposal at any given time. The fellow down the street with the private army could do whatever he wants until someone else comes along with a bigger private army. In our less than infinite wisdom we have progressed at least to the extent that we understand it is not desirable to appeal to force in order to create a desirable society. (Although in many sociological designations, warring clans are every bit as much a feature of modern society as they were in the days of marauding Danes.)

These ideas are embedded in us as residents of the United States and more particularly, as Olympians. They are there regardless of whether we acknowledge them. When Olympians discuss views and height limits, or any land use decision, they are actually discussing the application of these issues to the piece of dirt in question.

That is how I see it anyway. Some, perhaps most, disagree with me. There is a very powerful current of thinking that individual ownership, particularly in land, is the right to exclude others from it entirely. Thus, if someone wants to build a 25 story building in front of the Capitol, it should be their right to do so subject only to the constraints that the market (i.e. the desire and ability of people to rent the apartments or offices in it).

Removing the intermediary steps in this analysis which would probably only bore you anyway, the real question becomes is a view a collective right? If so, what are the limits to those rights? Which laws ensure those rights? Does someone have a right to see the Capitol or anything else an individual might personally treasure from any point in Olympia? Should some areas be protected because they are exceptional views? Is there a right here to a view at all? See how complicated this gets?

If there are rights to a view, what options are available to ensure them? Obviously, we can collectively tell landowners that certain buildings are not allowed in certain places. We can tell landowners that by our collective will, some of their rights to their private property do not exist.

Does it seem odd, unfair, or at least a little unsettling, that your individual rights to your land could be deprived entirely by a collective will with which you may vehemently disagree? It’s more common than you think, and it doesn’t happen just with land. A few quick examples: we don’t allow smoking in public bars (not to mention drinking alcohol in public); in Olympia we actually have a law—enforced by jail time not just fines—that prohibits people from sitting or standing in the middle of sidewalk in downtown if someone else thinks they might have to walk around you; we’re evidently about to tell downtown businesses, that they cannot sell certain types of alcohol; we’ve already decided that starting in 2013, most fireworks aren’t allowed in the city limits; we amended the Constitution a hundred years ago to prohibit consumption of alcohol; throughout our history, our collective will deprived basic human rights from the majority of our own population; (What percentage of the human population had any right to participate—via voting—in the collective decisionmaking process in 1850? Not even close to a majority.) And of course, collectively, we order people to die and carry out that sentence on a regular basis.

The issue of collective and individual rights as regards to heights and views is perhaps more straightforward if not much more pleasant to consider (if you’re not a landowner subject to them). Tonight the Olympia Planning Commission will consider our general policies about how to deal with heights and views in the SMP jurisdiction. What about the heights and views outside the SMP jurisdiction? That will come with the Comprehensive Plan update which is already in progress and will see much more light over the next year.

The Agenda is here. The staff report mentions a briefing paper which can be found here. This was used in the Summer 2010 SMP subcommittee briefings on the SMP topics. (The staff report says that this was attached to the December 19, 2012 meeting, but I was able to find only an excerpt of it there. Through some impressive search engineering, I was able to find despite its banishment to the nether reaches. Pauses. Pats self on back.)

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