Planners spend a lot of time trying to keep neighbors from harming each other. Do neighbors have a right to harm each other’s property? How problematic might be a code that limits harm? The best approach may be to write codes that ensure that each property owner can develop a lot to a certain level, and then allow further use so long as it does not harm society, the immediate neighbors, or the community.
In Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (1959), the Supreme Court overturned the old common-law assumption that landowners have a right to sunlight. Although property owners don’t have the right to injure the lawful rights of another, the court decided there is no lawful right to sunlight. Recently, solar rights zoning and other regulations have created such lawful rights for adjacent property owners. Although the older notion of common-law protections is essentially gone in the US, at least, it may be possible for cities to re-create them in zoning and subdivision regulations.
Why would we want to, though? Besim Hakim explained to Michael Mehaffy and me in the fall of 2009 that if a property owner is permitted to make the fullest possible use of his or her property without harming others, then more use can be gained for everyone than if the property owner is only permitted to operate within bounds that are almost guaranteed not to injure neighbors. In order to keep this from devolving into a free-for-all of manufactured rights, three major elements must be respected:
1. Local traditions and customs. The rights are shaped around what people can normally expect to do within their culture, including legibility within a culture. For example, the public and private realms should be distinguished and the gradations in-between them should be respected. Standards should be upheld.
2. Good relations with immediate neighbors. Neighbors should not harm neighbors. The Fontainebleau Hotel, was evidently within its legal rights to harm the Eden Roc to the north, but it hardly enjoyed good relations.
3. Maintenance of the public realm. Especially where there are no municipal services, it is essential to ensure that each property owner maintains the public realm. In the US, we often have a requirement that sidewalks be maintained, but of course this can also create liability issues.
Together, these say that properties should not harm the public environment, the neighbors, or the culture at large—either by action or inaction.
Although Besim Hakim explains this best with regard to Islamic cities, which has its own rules, we may ask how we can apply these regulations to the US and European contexts.
There are certainly partial answers, to do with “generative codes,” but no clear legal models in use, but in any case we can summarize a set of principles.
One difficulty is that localities may have a limited ability to regulate in this manner. They have a limited ability to require agreements between neighbors. That doesn’t mean, however, that a state cannot allow property owners to agree upon, for instance, easements—as Massachusetts does. Perhaps property owners can be permitted to do more if they reach agreements with neighbors. For example, if neighbors agree, perhaps they can be permitted omit side yards and attach buildings at the side lot line.
First, We can adopt a simple principle. Codes can do two things:
1. Keep everyone within idiot-proof bounds. A basic envelope of constraints can keep the chance that a property will harm its neighbors to a minimum.
2. Allow property owners to do a little bit more, if it does not harm the community, the culture, or neighbors. For example, perhaps a side addition can be allowed in a side yard where it is in an existing shadow, doesn’t infringe on a neighbor’s privacy, and so on.
Second we can organize the categories of harms that Besim Hakim identified with the three estates I postulated:
1. Do not harm the economic estate—chiefly your immediate neighbors’ light, air, quiet, and privacy. Keep your property in repair, so as not to, for instance, let drains back up onto neighbors’ property.
2. Do not harm—in fact support—the cultural estate. Make your business or home legible. That way people will know how to behave. Provide the appropriate cues, such as porches, signs, fences or hedges, etc. And use them, so as to be a good neighbor.
3. Abide by the governmental estate’s regulations, pay taxes, and so forth. Given the above, this may involve the other estates as well. For instance, the governmental estate will likely prescribe the signs and fences you can build (cultural estate), and help limit harm between neighbors in the economic estate.
These two principles can begin to constitute a framework for ensuring that everyone gets the best use out of property.
Placemakers has posted a blog entry which discusses fronts, and especially backs of properties.
DPZ in general and Andres Duany in particular are famously allergic to the idea of curtailing possibilities. They generally like to err on the side of being permissive. This leads them to write codes so that any combination of the permitted building envelope and internal function is allowed. Another approach is to code building types so that the compromises necessary for comity among neighbors are built in at the building-type level, rather than the lot-level. Stefanos Polyzoides is the most vocal proponent of that second method, which came to debate at the CNU in 2012.
One of the verities of the New Urbanism is that we have prominent civic buildings and background private buildings. What about government, though?
An age-old idea of different “estates” or interest-groups making up society is still relevant. Today, we have the Private, the Cultural, and the Governmental—although the latter is nearly invisible on the ground.
One of the most important contributions that Leon Krier made to urbanism has been to differentiate the idea of the public and economic spheres in urbanism.
The Res Publica is for public affairs, the Res Economica is for private, especially commercial affairs, and Res Civitas is for civic affairs, or more accurately, citizens’ affairs. The sum of the Res Publica and the Res Economica is the domain of citizenship.