The Government’s Right to Destroy

Abstract

This article examines a property owner’s right to destroy and the vast divergence in the scope of the right depending on whether the owner is a private entity or government actor. Private owners seeking to destroy their property face numerous common law and statutory limitations, ranging from arson laws to the doctrine of waste to zoning ordinances. These constraints reflect both an assumption that owners will rarely want to destroy what they own, since it presumably has value, as well as a utilitarian judgment that owners should not waste resources valuable to society. In contrast, the right to destroy remains largely unconstrained for one particular type of property owner: the government. In cities across the country, governments are exercising their right to destroy as a property owner on a massive scale: 2,500 buildings destroyed in Cleveland; 3,000 in Buffalo; and a goal of over 10,000 demolitions in Detroit. Through eminent domain and acquisition mechanisms such as land banks, the government can destroy property that it owns, with few constraints on its ability to do so once it has acquired the property.

In highlighting the divergence between a private owner’s narrow right to destroy and a government owner’s broad right to do so, the article has two major goals. First, it challenges the assumption that the right to destroy is universally disfavored, and demonstrates that for one particular type of owner – the government – the right to destroy remains relatively unconstrained. This recognition is important not only because the government – federal, state, and local – owns a significant amount of property, but also because it presents a paradox: an individual property owner’s right to destroy is narrow, but that of a property owner representing many individuals – the government – is relatively broad. The second goal of this article is to suggest that the government in fact should have a broader right to destroy than private owners. While seemingly paradoxical, the divergent scope of the government’s and private owners’ right to destroy can be justified on both doctrinal and normative grounds. More than simply the result of numerous, unrelated legal rules, the divergent scope of the right to destroy for government and private owners reflects a balancing of interests of both the owner and the community in property.

Keywords: property, regulation, land use, local government, zoning, urban planning, municipal, police power, demolition, eminent domain, tax foreclosure, land bank, redevelopment