Jeff Martin, Notes On the Dessicated Conception of Property Rights Prevalent in America, with Reference to Development

The character of American development is influenced by another factor, which dovetails with many of the discrete trends that comprise the cycle of suburban expansion and collapse. Americans have come to possess a dessicated and abstract conception of property, according to which property is no longer understood, or at best decreasingly understood, to be associated with place and its ties, or with productivity, or the stability of a family, but as a speculative instrument in which one happens to dwell. The concern of Americans for the rights of property is increasingly, as revealed in the fact of the real-estate bubble itself, with the exchange value of property, the opportunity to realize speculative returns on the anticipated or projected appreciation of the property conceived of as an asset. This is not the right of property invoked by the plaintiffs in Kelo, which was the right of simple possession, with the implication that their property ought not be taken and ceded to others; this is a position more nearly analogous to that of the wealthy interests to whom the Kelo plaintiffs' property was given: greater exchange value can be realized in this manner, and this fact is the paramount consideration both as between competing rights-claims, and between competing conceptions of the good. In the case of the Wal-Mart, and any adjacent property owners who might suffer a loss of exchange value were the preservationists to triumph, the claim is that a claim-right to this greater exchange value would be infringed were the development to be foreclosed. There is no consideration of property owners being stripped of the possession of their tracts, merely the contemplation of actions which will either prevent certain sales, or exclude certain uses, thus, possibly, lowering the value of the properties as speculative vehicles. And these two conceptions of property must not be treated as equivalents, either in thought or in law (and yes, law is often quite independent of thought, hence the formulation), for such speculative gains are at once inherently uncertain, depending upon both zoning and other decisions, and economic trends which cannot be foreseen, and less secure than the goods of actual possession. A property owner may whinge that a zoning restriction constitutes a "taking" because it deprives him of some hoped-for future return, but the eventual reality of such a return, if it is ever to materialize, is dependent upon broader economic trends - the sustainability of the economics of growth and consumerist expansion - that are not in evidence and cannot be regarded as certain. Moreover, it is grotesquely invidious to maintain that this expectation of future gains of exchange value be made the paramount objective of public authority, that it is mandatory, de facto for a government entity, in the course of its efforts to balance competing goods with a view to the common good - goods including the historic and aesthetic character of a region, or the quality of life afforded by not having interminable sprawl - to take care that hypothetical future exchange values are not infringed by efforts to maintain other goods, goods less amenable to quantification. It is, however, the belief in a right to 'cash out' a property held speculatively, taking advantage of the aforementioned cycles of development, that both mandates this privileging and perpetuates the wasteful utilization of a finite resource.