The Zoning Trap
(From a presentation by Albert McCallum at the Sam Adams Liberty Festival, sponsored by theWashtenaw, County Libertarian Party April 17, 1999)
The zoning wars are raging in Parma Township of Jackson County, Michigan. The township's annual budget is about $250,000. During the past two years it has spent over $25,000 on legal fees, mostly for zoning enforcement. So far the township has lost every case. This is but small consolation to the citizens who have born the anguish and expense of lengthy litigation.
The arrogance of the township board peaked when they filed a legal action to throw a disabled man over 60 years old out of his home on land he has owned for over 20 years. The "crimes" committed by this man are living in a trailer the township finds to be 10 feet too short on land 20 feet or so too narrow. This lawless citizen and his teenage son have to make do on the father's disability pension of about $500 per month.
During the past few months the fed up citizens of Parma township have petitioned for referendums on two zoning amendments. Both amendments were defeated at the polls. The citizens are now circulating petitions to recall four of the five board members.
During 1998 two people died as casualties of the zoning wars in Ionia County. The enforcers drove one man over the edge through harassment over the size and shape of his house. He fought back when the zoners sought to have him arrested. He wounded two police officers. A couple of weeks later he died in a confrontation with police. His death was officially ruled a suicide.
In the other case, the zoners harassed a poor family about the old empty trailer in their yard. The family didn't have the resources to dispose of the trailer in the two weeks (extended to four weeks) allotted by the zoners. Finally the woman called 911 and said she couldn't take it anymore. She then killed herself.
In other communities the zoners have ridden out to protect the citizens against such evils as herb gardens, people sleeping in motor homes parked in driveways, covers over cars parked in drives, construction equipment parked out of doors, improperly trimmed bushes, bird houses constructed without permits, tree houses, and the like. There is no detail of your life so private or so insignificant as to not attract the attention of some busybody zoner.
Zoning controversies simmer and smoke all across the state and nation. What is there about zoning that breeds so much ill will and hostility? Is zoning so vital that we have no choice but to allow it to take its toll? Can zoning be reformed to avoid the excesses and abuses?
Before digging deeper into the zoning can of worms it may be worth while to consider the basic nature of property ownership. If a person had absolute ownership of a parcel of land that owner would have the right to do anything he chose on that land, no matter the consequences to other landowners. Likewise, all other people would have to refrain from doing anything which would in anyway affect the land of the absolute owner. There could be only one absolute owner on earth. He would be free to do whatever he chose -- up to and including launching nuclear missiles.
The rights of landowners have always been limited. This is what the laws of trespass and nuisance are all about. The owner of land has many rights which he can exercise on his land. Others must refrain from doing many things that would affect the landowner's land. These rights are so complex that it is most likely that no landowner ever knows the exact extent of his rights. The important thing is that whatever those rights are, no one can take them. If they can be taken they are not rights. If the "owner's" interest in the land can be taken away at will, the "owner" had no rights. An "owner" without rights it not really an owner. He is a licensee using the land at someone else's pleasure. Licensees have little incentive to improve the land to make it more useful.
For as long as I can remember it has been fashionable in certain circles to ridicule property rights as somehow inferior to human rights. This is an empty headed, thoughtless belief. First of all property rights are human rights. Property has no rights. Property rights are the rights of human beings to possess and use property. Next to personal safety, there is no right more important than property rights. In many respects safety depends on property rights. What right is more important than the rights to be safe and secure in your home? Or, the rights to possess, use and consume food, and clothing? Without those basic property rights we would never get the chance to speak, vote or practice religion. Property rights and secure ownership are the foundation of civilization. Without secure property rights people cannot prosper.
People will not be motivated to invest and build unless their investments are secure. When property rights are not secure much of the energy that could be used to produce goods and services for everyone is consumed fighting to protect property rights. The thousands of dollars and hundreds or thousands of hours wasted on the Parma Township zoning wars is but a small example of how insecure property rights make everyone poorer.
When a thief takes one apple from a basket, few would claim that this is not theft just because the thief took only one apple. Yet, the courts of our land have ruled that taking a few of an owner's rights in his land is not theft, as long as the taker leaves something for the owner. Under today's environmental laws that something left for the owner may be little more than the empty basket.
Anytime that law and government fail to protect the property rights of owners, civilization is weakened. Prosperity diminishes. When government joins in the plunder the very foundations of civilization crumble.
Part of the confusion over zoning arises from zoning being a combination of two things. Some aspects of zoning attempt to codify the law regarding trespass and nuisance. Some of the actions prohibited by zoning were already trespasses or prohibited nuisances. If zoning had stopped there it wouldn't be creating the ill will, animosity and strife it does.
What is the other side of zoning? Zoning is might makes right. The group of people with power take whatever they choose from those too weak to prevent the taking. In zoning the strong always take from the weak. Those who seek to reform zoning dream the impossible dream. We might as well try to write rules to bring fairness to armed robbery. Zoning is armed robbery. Zoning is far worse than armed robbery by a street thug. Robbers with badges and uniforms are by far the most dreaded kind.
The evil of zoning isn't that it limits land use. Limits on land use for all are essential to make worthwhile uses of land possible for everyone. The evil of zoning is that it forcibly changes the rules of ownership in midstream. It takes away rights that once belonged to the owners. The disabled Parma man clearly had the right to live in a 60 foot trailer on his 132 foot parcel when he bought it. If he no longer has those rights, someone has forcibly taken them from him. The takers didn't get his consent. They didn't pay him. They didn't even say thank you.
Zoning mocks the Constitution which in the Fifth Amendment proclaims, ". . . nor shall private property be taken for public use, without just compensation." That private property could not be taken for private use was too well established to even need mention in the Constitution. Such takings were recognized as theft, and all but universally illegal. In our legal system as it was created, once a person became the owner of rights to use places or objects, those rights could not be taken from him, except for public use. Then, only with just compensation. Zoning and other legislative takings ride rough shod over the Fifth Amendment.
The zoners of Parma Township rant that the opposition doesn't want any rules. That isn't the problem. The zoners are the scofflaws. They change the rules of ownership at their whim, and for their convenience. They take property rights from some and give new rights to others. A rule that can be changed at the whim of the powerful is no rule at all. It is like playing a game where the powerful can at anytime change the rules to their advantage. If some people want to play such a game -- let them. No one should be forced to participate in such a rigged game. Zoners eagerly put people in jail or otherwise harass and destroy them for refusing to accept the arbitrary "rules" adopted by the zoners for their own advantage. Zoners are thieves who become indignant, and often vicious, when anyone objects to the theft.
Some people insist that zoning with all its faults is justified because it is essential. They believe that zoning is essential to protect residential neighborhoods from junkyards and tanneries. Is zoning a necessary evil? The laws of trespass and nuisance developed in times different from our own. Shouldn't we have the right to establish land use restrictions consistent with current conditions?
Of course we should. It should be obvious that we can establish such restrictions without taking from anyone. Restricted subdivisions arrived well ahead of zoning laws. Developers placed restrictions on the use of land in subdivisions. The developers sought to increase the value of their land by making it more desirable. People who didn't like the restrictions could buy someplace else. Nothing was taken from anyone. Owners in an existing community are also free to establish mutually acceptable restrictions.
The protection afforded by zoning is far less than many like to believe. Zoning is established on the principle of might makes right. The restrictions only last until confronted by someone with greater might. When someone with enough power wants to bring a shopping center or factory to your neighborhood, move over, it's on its way. When someone fails to set aside zoning restrictions to meet their whim, it only shows that the persons seeking the change was not powerful enough. Zoning works only as long as it is defended with force and power. Zoning is not based on any enduing or stable moral or legal principle.
When land use restrictions are established voluntarily, there are no losers. If over zealous developers place too may restrictions on too much land, the restrictions will diminish rather than increase the value of the land. This will motivate some to eliminate or modify the restrictions. The nature and extent of restricted communities will be tailored to meet the demand for such communities. This will assure a supply of unrestricted, or minimally restricted land, for those who want it. It eliminates the one size fits all approach of zoning. It allows those with different desires to develop communities suited to those desires. Only arrogant elitists who demand that everyone live in the same type of community could object to this approach. Of course there is no shortage of people insisting on running everybody's lives.
Zoning is yet another example of how power corrupts. If some communities are not restricted, those seeking restricted locations may not be able to chose any location they want and still have the desired restrictions. Those with the power to zone seek to remedy that problem. Their answer is to impose their favorite restrictions everywhere. This broadens the range of choices for the powerful at the expense of the weak. Allowing the zoners to impose their restrictions without even paying their victims, further emboldens the zoners. The weak may end up with no place to go. People backed into corners are likely to fight. As the oppressed find fewer and fewer places to run to, the zoning wars can only become more viscous and violent. Should Yugoslavia bomb the U.S.A. to stop the zoning atrocities?
Many zoners also suffer from chronic arrogance. One of the Parma zoners wrote a letter to the editor lamenting the plight of the poor zoner. She complained of how much work was involved in zoning. She bemoaned the lack of appreciation. She allowed as how everyone would be better off if they would only realize how much zoning (to suit her taste of course) benefited everyone. Such people are incapable of even seeing another point of view -- leave alone appreciating it or recognizing that a differing point of view has any value.
Zoning makes another contribution to strife, animosity and waste. Most zoning laws are so restrictive and intrusive that if the laws were totally enforced there would be mass rebellion. Zoning enforcement is always selective. Often enforcers goose step through the community enforcing their pet peeves, while ignoring everything else.
More commonly zoning enforcement is based on the squeaking wheel principle. The enforcers focus on citizen complaints. Supposedly zoning is to protect the health and safety of the citizens. Most zoning violations require gigantic flights into fantasy land to find any imaginable relationship to health and safety. As often as not the complainer is more concerned about the "violator" than about the "violation." Zoning becomes a means for trouble makers to harass their neighbors with little or no expense. Zoner are life style police engaging in class warfare.
If trespass and nuisance were returned to the realm of private enforcement, the complainant would have to take the initiative and pay the cost of enforcement. He couldn't get the taxpayers to fund his private war. This would go a long way toward toning down the strife. Unless the complainant had a real grievance he would be unlikely to turn it into a court battle. Even in the case of real problems, the parties would be far more likely to pursue negotiations before resorting to litigation. In the Parma Township trailer battle, apparently one of the main instigators is a neighbor who wants to buy the land on which the offending trailer is located. The complainer also lives in a trailer that looks little different than the one he wants to drive from the neighborhood.
The zoning beast can never be reformed. To suggest zoning reform is to give aid and comfort to those who wallow in illusion. As long as many people believe zoning is vital to their interests, they will support it -- or, at least accept it. The first step to slaying the viscous and deadly beast must be to spread the word that there are other and better ways to accomplish the legitimate concerns that zoning pretends to address.
We should also emphasize that private, voluntary land use restrictions will greatly reduce strife and wasteful battles. Hopeful, many people will be swayed by the fairness of private land use restrictions. The private road is the only way to protect the weak against the overreaching hands, and fists, of the powerful. Zoning is based purely on might makes right. To the victor goes the spoils. Zoning has no place in a nation claiming to be governed by laws rather than by the whims of the rulers.
Decades of land use restrictions enforced with force and violence have stunted the growth of private voluntary land use restrictions. To simply rip away zoning before private land use restrictions have the chance to grow healthy legs would create much uncertainty and fear. The problems would no doubt be far less than feared. Nevertheless, the fear of the unknown will make it unlikely that most people will warmly embrace the sudden end to zoning. There is a middle ground for transition. Simply ending the adoption of any new zoning restrictions would bring certainty back to property ownership.
We would still be saddled with many ridiculous, intrusive, unwanted restrictions. This problem is not insoluble. Allow affected landowners to end restrictions on their land by agreement. Make it clear that only owners with a substantial interest in the restriction could block its termination. If owners in one block want to modify restrictions about fence building, it should be no concern of those who live a block away. Restrictions on building steel mills would be of concern to owners a greater distance away. It would take some time to develop common sense rules as to when a particular owner had an interest in maintaining a restriction. New restrictions would apply only to the owners who agreed to the restrictions. Reluctant owners might insist on being compensated for agreeing to new restrictions. It is hardly a revolutionary concept that an owner is entitled to compensation for giving up some of his rights to his property.
In this new environment of secure property rights and freedom of choice, like minded people would migrate to the same neighborhoods rather than trying to impose their version of utopia on everyone. This in alone would make a major contribute to peace and harmony.
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Albert D. McCallum, 18440 29 1/2 Mile Road, Springport, Michigan 49284
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