Limiting Harm

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.

Historical Perspective

Street in Cairo. CC BY-SA 2.5, Dudubot. Original source Sladen, Douglas. “Oriental Cairo: the city of the ‘Arabian Nights’”. J.B. Lippincott Company: Philadelphia and Hurst & Blackett, Ltd.: London, 1911. p 158.

Street in Cairo. CC BY-SA 2.5, Dudubot. Original source Sladen, Douglas. “Oriental Cairo: the city of the ‘Arabian Nights’”. J.B. Lippincott Company: Philadelphia and Hurst & Blackett, Ltd.: London, 1911. p 158.

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.

Space between two buildings in Cleveland

Space between two buildings in Cleveland

Narrow lightwells on Lorain Avenue, Cleveland, OhioWhy 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.

Some Synthesis

Sidewalk in The Waters, showing how the commercial building edges toward the sidewalk

Sidewalk in The Waters, showing how the commercial building edges toward the sidewalk

Street in The Waters, near Montgomery, AlabamaThere 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.


on 2012-08-17 15:20 by Bruce Donnelly

Placemakers has posted a blog entry which discusses fronts, and especially backs of properties.