Property and Freedom

Bernard H. Siegan’s book, Property and Freedom, (Transaction Publishers 1997) provides a comprehensive overview of key Supreme Court cases impacting property rights. While the book can be dry at times, it is a valuable contribution to our understanding of the gradual erosion of those rights.

Of particular interest is the section titled “Zoning: Political Control of Property”. Siegan states that, while zoning officials are charged with promoting the “public good”, the “dominant factors in zoning are public pressure and political influence…” (p. 179) He goes on to write:

For local legislators, the most important factors influencing their judgment in zoning matters appear to be the number and influence of the people who object to a proposal, a new rule, or an amendment to an old one. (p. 180)

In other words, political expediency is rule of the day. Zoning officials focus their concerns on appeasing the noisiest gang. More importantly, the gang members do not own the property in question, yet their voice gets higher consideration than that of the rightful owner.

Siegan later writes that zoning officials do not react to market conditions as businessmen do, and therefore “tend to allow development where it is not feasible and to prohibit where it is.” (p. 188) Insulated from the consequences of their decisions, zoning officials have no reason to be concerned about the wisdom of their decisions. In fact, they are mini-dictators who can impose their will on the community. Where business owners suffer if they make a bad decision, zoning officials do not.

Invariably, the original zoning plan requires modification as market conditions, building techniques, and other criteria change. What starts as a small and simple zoning ordinance will “grow into very complex and complicated” ordinance. (p. 189) Siegan notes that there are two reasons for this.

The first is that zoning never delivers on its promises. In addition, because zoning distorts the market, zoning actually creates new problems. To fix the problems created by zoning, officials add to the complexity of their edicts.

The second “reason for the proliferation of zoning regulations is that the process is a battlefield for warring interest groups.” (p. 189) Interest groups are notorious for using the zoning process to push their particular agenda. And because zoning officials oil the squeaky wheel, the loudest gang is likely to get their way.

But we don’t need Siegan’s book to know this. In the 1990’s when Houston last debated zoning, the papers were regularly filled with stories of interest groups arguing over the zoning plan. Neighbors fought neighbors over the use of land only one, or neither, owned.

While I disagree with much of Siegen’s commentary—for example, he implies that zoning would be acceptable if it were truly democratic—the book provides an interesting and valuable look at the topic of property rights.

© J. Brian Phillips