Driving up the new section of US 421 into Boone NC, I was awed by the beautiful mountain vistas: the landscape rose and fell then blended into the horizon. Yet property owners wanted to install billboards to provide me with information on the availability of hotels, food, and shopping ahead: all-important information and useful to me. They were also sure the warranty-deeds protected these rights. Seeing these views I wanted to share them with my friend, so I called on my cell phone. Good, I got a reception because a cell tower was just off to the right in the distance.Consider the idea of scenic views being a public good. I suppose we might well model scenic views as a public good because it does seem that consumption of the scenic view of a beautiful landscape has the consumption attributes of nonrivalry and nonexcludability.
The debate on land use in the mountains has been raging for years. For example, should the county develop zoning ordinances? Should the county limit the number of abandon cars? Should have the state designate US 421 as a scenic byway? Should we limit the number of cell towers? All of these are important questions that need to be answered. To help answer these questions I propose to administer a contingent valuation study to access the public-good economic value of scenic views. I also will ask questions to get an understanding of the perceived property rights and how locally undesirable land uses affect the scenic values.
What I find interesting is to consider John's reference to land ownership, property rights, and zoning. Who owns the scenic vista? I think the best answer is: No one owns the scenic vista. Numerous people own the land as property, and the various privately owned parcels are perhaps like pieces of a puzzle that fit together into a beautiful scenic vista. Protecting the scenic vista may well mean people enjoy their drives along the highway a great deal more than they otherwise would. Perhaps this shared enjoyment while driving the highway is like a public good.
Let's imagine that John's contingent valuation research leads to an estimate that the benefits of the scenic public good are quite large, and large enough for economists to offer the advice that it would be inefficient to cause the demise of the scenic vista. Suppose also that the appropriate number of public officials decide they should act to prevent the demise of the scenic vista. What should be done to protect the scenic vista?
One of the public policies often suggested, and it appears in John's list of questions, is to create an appropriate zoning ordinance. This would seem to be a pretty inexpensive way for government to protect the scenic landscape, of course. But, some have suggested that zoning ordinances that regulate the use of privately owned land must involve a taking, and if so, then according to the Fifth Amendment to our Constitution, such a taking must be accompanied by "just compensation." Is this is correct, then, it is clear, that a scenic vista zoning ordinance could be quite an expensive policy for government to adopt. Of course, we all know that other people say "this is not so, there is no taking."
I think I have a way to show that zoning ordinances to protect scenic vistas must involve a taking of private property for public use. At least, I'm convinced it does.
Government regulation to protect someone from harm caused to their person or property by the actions of another person is legitimate and appropriate. Actually, I think the very bottom line purpose of government is to protect people from harm caused by others. Therefore, regulation to prevent me, from harming the person or property or others, cannot involve a taking. This is the case because I never have the right (and neither do you or anyone else) to harm the person or property of another.
Now assume that I am one of those property owners who has a parcel of land that is one piece in the puzzle that creates a scenic vista. I want to cut down most of MY trees, build a 6 story condo complex, and put up numerous billboards so I can sell advertising services. Do I harm anyone by thereby destroying my piece of the scenic puzzle? Even if the scenic vista provides a public good, I say the answer is NO. The answer could only be yes, if someone owned the scenic vista. But no one owns the scenic vista. Many own the pieces of land that create the scenic vista, but no one owns the scenic vista.
It seems to me that if government now creates a zoning ordinance to stop my planned development, then government has taken something away from me that I own. This seems, indeed, to be a taking of private property for public use, where the public use is to create the public good scenic vista.
I suppose someone might reply that I don't have it quite right because before I develop MY property, there are people who are enjoying the scenic vista. When I destroy my part of the scenic vista these people will be worse off, and therefore I will be harming them. Government's scenic zoning ordinance will be created precisely to keep me from harming those people. Well, perhaps one could look at it that way, but I think there is a better, more accurate way to look at the situation.
If indeed, those driving the highway and viewing the scenic wonderland owned that scenic vista, then my development would harm them. They do not own the scenic vista, and therefore, the people in question cannot really be harmed by my actions. But consider that my piece in the scenic vista puzzle, while being owned in private and therefore being a private good, could perhaps be characterized as generating a positive externality. Those people driving along the highway are happier because of my actions not to develop my private property to date. What does our economic model of positive externality suggest is the appropriate policy response? It is to subsidize the economic choices that lead to the positive externality. In the case at hand, I suggest that means that instead of government imposing a zoning restriction on MY USE of MY LAND, government should, from the economic efficiency point of view, be paying me money to maintain my piece of the scenic vista puzzle.
Suppose we follow John's lead and model the scenic vista as a public good. It seems to me then that all these separate land parcels that are privately owned would be inputs into the production function of the scenic vista (public) good. Our public good model would then suggest we may expect that private actions will fail to provide the scenic vista public good, and therefore, that we might want to offer the advice that government should provide the public good. But, the question would then be how should government obtain the inputs which are owned by private individuals? The answer seems obvious to me, i.e., it should purchase those inputs.
One other thought is suggested from teaching public sector economics, and it comes by way of the "benefit principle." The idea is that for efficiency people should pay for the benefits they enjoy (at the relevant margin of course). If those people are driving along the highway, John included, and enjoying the benefits provided because of land owned by others, then it seems to me economics clearly suggests, in principle, that those people should be paying for benefits received.
Each of the conceptual views I see as ways to think about the scenic vistas in question lead to the same conclusion. If government is going to protect the scenic vista, then it is going to have to pay sufficient money to the private land owners to encourage them not to develop their separate scenic vista puzzle pieces.
Each of those private land owners own the inputs into the production of the public good scenic vistas, the rest of us don't. Can we simply go to government and get it to use its coercive power to force those private land owners to continue to give us the scenic vistas we enjoy? In one way the answer to this question is yes, and in another way it is no. The Fifth Amendment allows government to take private property for public use. I think that means in the case of scenic vistas that government could take private property because it makes sense to equate the public good of a scenic vista with the term "public use." That part of the answer to the question then is yes. But the Fifth Amendment also says that such private property can only be taken with the payment to the owner of "just compensation." I don't think government, according to the Fifth Amendment, can be allowed to take the inputs into the production of a scenic vista without paying to obtain, or purchase, or lease, those inputs. This part of the answer then, should be no, not without just compensation paid. As Justice Holmes once wrote in a famous takings case, just because something benefits many in the community, it doesn't mean government can provide the thing without following the constitutional way of doing so (my paraphrasing of course).
So, I do think government can, constitutionally, create a scenic vista zoning ordinance to protect existing scenic vistas that are created out of the puzzle pieces of private land ownership. But, such zoning ordinances also seem to me to clearly involve a taking of private property for public use. It seems to me that any public policy to protect scenic vistas must involve paying money, both from the perspective of economic efficiency analysis as well as based upon the words written in our Constitution.
Of course there is one final caveat to offer. As a practical matter, our Constitution means what the Supreme Court says it means. Unfortunately, in my opinion, the Supreme Court has often misread our Constitution when it comes to takings and the Fifth Amendment, and the recent Kelo opinion is only the most recent instance of this.