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Zoning’s Attack on Liberty and Property

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One of the most coercive tools that public officials have at their disposal is zoning. City councils and county boards throughout the country use zoning regulations to dictate which uses are permitted and which are not on every parcel of land within their jurisdiction. While sometimes well-intentioned, zoning regulations nevertheless produce perverse incentives and results and violate the most fundamental tenet of individual liberty — that a person may do with his property what he wishes.

Zoning laws are the epitome of central planning. A politburo of local politicians bang their heads together to decide how many homes should be built in their district, how big the homes can be, how tall they can be, how much land must be used, whether a business is allowed to operate there, and whether industrial activity is allowed to take place. What results is the pattern that everyone is familiar with: the traditional residential, commercial, and industrial zones. Usually a few of the main thoroughfares contain all of the businesses, the heavy, industrial areas are concentrated in one or two places on the outskirts of town, and all of the residential areas are sprinkled in between.

The problems with zoning are many, just as they are with any other form of central planning.

For one, how can any group of people decide what is the best way to develop a community? The elected officials who are making these decisions are not superhuman. They suffer from the same shortcomings we all do — none of us can see into the future. By dictating what kind of development is allowed to take place on particular parcels of land, every little detail of future development is affected and owners may not be allowed to develop the property in the way they think is the best use of the land. Who is to say what the proper ratio of business to residential areas should be? What is the proper density of housing per square mile that will yield the happiest residents? Should there be many small schools or a few big ones? Should there be two-lane roads that allow more housing, or four-lane roads that take up space but ease traffic? Should there be a height limit on residences and, if so, what should it be? Why is one street corner good for a coffee shop but not another?

Another problem is that zoning regulations create perverse incentives. Designating different types of land use — residential, industrial, commercial — has created an automobile-centric society. If they really wanted to achieve a reduction in oil consumption and “sprawl,” the environmentalists should be clamoring to eliminate zoning laws. Imagine that you could walk to your grocer or pharmacist. Businesses could locate around their customers instead of around each other.

A glaring example of a benefit that has been zoned out of existence is the traditional pub. Pubs would normally be opened in part of someone’s home, allowing neighbors to walk from their homes and have a beer with their neighbors. This is no longer possible unless you live in the city, because pubs are outlawed in most places. What is the result? People drive to bars and drive home drunk. Mothers Against Drunk Driving can hang their hats with the environmentalists as a group that should be opposing zoning regulations.

Zoning regulations also destroy property values. With one fell swoop, county supervisors can destroy millions of dollars worth of accrued property value by simply placing minimum lot sizes for a house or eliminating the possibility of commercial or industrial use for the property.

The worst problem of all is that zoning laws violate the fundamental right of an individual to do with his property as he pleases. Governments are instituted to protect the rights of the citizenry. The most basic right an individual possesses is the right to his property. One of the state’s primary functions is to prevent or punish the theft of property. If a person is not violating another’s rights in the process, he should be free to do with his property as he wishes, whether or not his neighbors approve.

In essence, zoning regulations are an act of violence by the government against the individual. The government is decreeing what a man may not do with that which is his. If I open a bar in the basement of my house, the government will fine for me violating its regulations, even though I am using my property as I see fit and violating no rights of any other. If I refuse to pay the fine, the government will throw me in jail for exercising my property rights. And if I refuse to go to jail, the government will kill me for exercising my property rights. This is not justice and it is certainly not the reason we have government. Government should be defending our rights, not violating them.


The origins of zoning

Zoning regulations are a relatively recent phenomenon in American history. It was not until the Progressive movement of the early 20th century that government attempted to engineer neighborhoods. New York City was the first to adopt zoning in 1916 in response to the construction of the 36-story Equitable Building. Being much taller than all of the surrounding structures, it cast a 7-acre shadow on many of the surrounding buildings during portions of the day. Observing what were deemed to be ill effects of the building, New York City’s 1916 Zoning Resolution limited the height for new buildings.

But it was not until the 1920s that the movement for city zoning really gained momentum. The person we have to thank for the nationwide spread of zoning laws is Herbert Hoover. As secretary of Commerce, he was enamored with the idea of increasing the efficiency of cities through central planning. As Hoover stated when he was with the Commerce Department,

The enormous losses in human happiness and in money, which have resulted from lack of city plans which take into account the conditions of modern life, need little proof. The lack of adequate open spaces, of playgrounds and parks, the congestion of the streets, the misery of tenement life and its repercussions upon each new generation, are an untold charge against our American life. Our cities do not produce their full contribution to the sinews of American life and national character. The moral and social issues can only be solved by a new conception of city building.

And of course, Hoover’s “new conception” was for government officials to tell everyone what they could and could not do with their property.

In 1921, Hoover formed the Advisory Committee on City Planning and Zoning to create a model law that state legislatures could pass in their respective states to engineer the “full contribution” from cities that Hoover desired. Headed by Edward M. Bassett, the man responsible for the zoning laws that had been passed in New York City five years earlier, the work of the committee resulted in a Standard State Zoning Enabling Under Which Municipalities Can Adopt Zoning Regulation (SZEA).

The SZEA is the mother of most zoning regulations found in the country today. It was completed in 1922, and by 1930 35 states had passed legislation based on the SZEA. Even today, you can recognize remnants of the original language, as the term “comprehensive plan,” standard lingo for any city planner, comes straight from the act. And so it is that the birth of zoning took place not at the city or county level, but from a federal commission. The nanny state was just starting to flex its muscles.

Of course, not everyone was terribly happy with the zoning frenzy that was sweeping the nation. The most obvious effect to landowners was that if their property was zoned into an undesirable class, it could significantly reduce their property value. This is exactly what happened to Ambler Realty, and it didn’t take it lying down.

Ambler Realty owned 68 acres in the town of Euclid, a small suburb of Cleveland, Ohio. In an effort to stem the increasing industrialization of the town, Euclid passed zoning ordinances creating 13 different classes of height, area, and use restrictions for property within its jurisdiction. Ambler’s property had been divided into three different use classes that substantially reduced its value. Ambler sued in federal court, claiming that they had been deprived of due process guaranteed by the Fourteenth Amendment.

The regulation was initially found unconstitutional in the lower court, but the judgment was overturned on appeal and eventually made its way to the Supreme Court. In a 6-3 decision, the Supreme Court ruled in favor of Euclid, stating that zoning indeed was well within the police powers of the state. Thus state officials now had an entirely new tool to take that which did not belong to them.


Examples of zoning abuse

While initially zoning laws were conceived as a general guide for property development — an affront to liberty in and of itself — it has in the past 80 years morphed into something much worse. Zoning laws are now used to regulate just about every conceivable activity one can undertake with respect to his home.

For example, the city of Manassas, Virginia, recently passed a zoning regulation limiting the number of people who can live in a house. Not coincidentally, the area had experienced an influx of Hispanic migrants who tend to have their extended families all live under one roof. According to the Washington Post, Isabelle Thabault of the Washington Lawyer’s Committee said that her organization’s investigation found several cases that seemed to amount to harassment, including one in which an inspector was reported to have measured a bedroom that a couple was sharing with their newborn baby and then told the parents they would have to move the baby to another room. The couple measured the room and found that the inspector’s measurement was wrong.

In Fairfax County, Virginia, the board of supervisors recently decided that thousands of homes are in violation of county height restrictions. Never mind that county inspectors had certified the construction of all of these homes. They would all have to be lowered to the proper height anyway. The board has ordered that the roofs on hundreds of homes currently under construction must be torn down to meet the regulation. Occupants of homes already completed but in violation will not have to alter their homes, but when they sell, the new owner will have to lower the roof before being permitted to occupy it, thereby lowering the resale value of the property.

As James Bovard documents in his book Lost Rights, zoning regulations have been used to block persons from working out of their homes. In Glenco, Illinois, the city government forced a financial planner to shut down his home-based business. The city of Chicago issued a cease-and-desist order in 1984 to a couple using two personal computers in their home to write software and magazine articles. In Highland Park, New Jersey, a rabbi was fined for having a photocopying machine, a filing cabinet, a typewriter, and miscellaneous business documents in his home, which violated a local ban on home offices.

Even churches are not immune to zoning laws. As Jonathan D. Thoburn pointed out in his Acton Institute article “Zoning as a Threat to Religious Liberty,” a church in Vienna, Virginia, was told “they could not conduct classes in the sanctuary of the Vienna Assembly of God church because, according to zoning officials, ‘a sanctuary is not a proper educational environment.’”

Zoning regulations destroy liberty. They grant government officials a power they have no right to exercise — the control of property that is not their own. The exercise of that power has been abusive and downright tragic. James Bovard put it best:

Modern zoning laws presume that no citizen has a right to control his own land — and that every citizen has a right to control his neighbor’s land. In zoning disputes, property rights, like some type of mysterious vapor, reside any place except with the property owner.

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    Bart Frazier is program director at The Future of Freedom Foundation. Send him email.