Zoning and the The “New” Property Rights

by | Jan 10, 2003 | Housing, POLITICS

Last Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled in the case of George Washington University v. District of Columbia, upholding the District’s zoning restrictions on GW’s land use. The case was by no means a landmark decision, yet the three-judge panel’s opinion did outline much of what has gone […]

Last Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled in the case of George Washington University v. District of Columbia, upholding the District’s zoning restrictions on GW’s land use. The case was by no means a landmark decision, yet the three-judge panel’s opinion did outline much of what has gone wrong in modern zoning laws.

The D.C. Circuit case was just the latest manifestation of a two-decade-plus fight between GW and its neighbors in the District’s Foggy Bottom neighborhood. The current dispute dates back to 1999, when GW presented its ten-year campus plan to the District’s zoning board. Under local law, a university may not develop residentially-zoned land without first submitting an overall campus plan, then seeking a “special exception” for each building within the plan. Universities may develop commercially-zoned land without going through this campus plan process.

In approving the 1999 campus plan, the District imposed what amounted to an enrollment cap on GW’s undergraduate enrollment. GW must house 70% of their students “on campus.” Failure to do so means GW will not get special exceptions for non-residential buildings that are underway, such as a new headquarters for GW’s business school.

To quickly meet this cap, GW purchased several existing apartment buildings and hotels outside their campus plan boundaries but within the Foggy Bottom neighborhood. The zoning board ruled that these buildings could not count towards GW’s 70% on-campus requirement, despite the fact GW operated the newly acquired buildings as residence halls. After losing in local courts, GW sued in federal court to have the District’s 70% rule declared unconstitutional. A district judge ruled partially in GW’s favor, which led to both sides appealing to the Court of Appeals.

Before the D.C. Circuit, GW argued that the District violated their “substantive due process” rights. Under this theory, GW’s property rights fell victim to the District’s gross abuse of power. Substantive due process is not the strongest argument to advance, given it only imposes “only very slight burdens on the government to justify its actions,” as Senior Circuit Judge Stephen Williams said in his opinion for the Court of Appeals. The District’s actions would have to be completely unreasonable on its face for GW to prevail on this point, and in fact the Court found that not to be the case.

But what’s interesting is the Court’s definition of property rights. The D.C. Circuit joins the view of a majority of the U.S. Courts of Appeals, which effectively states that property rights exist by government permission. The more traditional approach, adopted by the Third Circuit in Philadelphia, holds that ownership in the land is itself significant to assert a property right. This, of course, is the interpretation the average person would subscribe to, but in the mystical language of appellate lawyers (and zoning regulators), recognizing property as an individual right is too great a concession.

Judge Williams explains the difference between the Courts as follows:

The majority approach may seem at odds with ordinary language, in which we would say, for example, that a particular piece of land in Washington is

Share
S. M. Oliva is president of Citizens for Voluntary Trade and a senior fellow at the Center for the Advancement of Capitalism.

Voice of Capitalism

Our weekly email newsletter.