Thursday, July 31, 2008

What’s in a Name?

Zoning advocates routinely try to hide their intentions through euphemisms. In the 1990’s they created “Houston-style zoning” and “neighborhood zoning”. But regardless of the adjectives or nouns used by zoning advocates, zoning is still zoning.

At best, such tactics are incredibly naïve. At worst, they are blatant intellectual dishonesty. The implication is that if they don’t call it zoning, then it isn’t zoning. Just as putting lipstick on a pig doesn’t make it attractive, putting a different label on land use restrictions won’t change its nature.

Certainly, some land use restrictions are less egregious than others. Some forms of zoning may be so as well. But the underlying principle is the same—government may violate the property rights of its citizens. And that principle must be rejected in any form it is made manifest.

To accept a principle, no matter how minor or small a particular application may seem, is to surrender the principle completely. If a bank conceded to a robber than he could steal some of their money, they are only left to quibble over the precise amount.

Political power is political power. To grant politicians control over our property—no matter how small that control may initially be—is to grant them control over our property. We can then only quibble over the extent of that control.

In the 1990’s zoning advocates claimed that Houston would avoid the corruption, high housing costs, political favoritism, and other problems associated with zoning in other cities. They tried to pretend that no principles underlie zoning. Houston, they repeatedly told us, is different.

They will likely repeat that mantra. They will likely try to cast their newest version of zoning in a new light. They may call it “incentive zoning”, or “performance zoning”, or “form-based zoning”, but it is still government control over the use of property. It is still a violation of the property rights of the citizens. Putting a new dress on zoning won’t change that fact.

Somehow, they will have us believe, Houston will be immune to the basic laws of supply and demand. We will be able to remove land from the market place (for particular uses) yet housing, rents, and the cost of doing business will not increase.

Somehow, they will have us believe, politicians in Houston will avoid the corruption and intrigue that accompany zoning in other cities. We will grant to them immense power over our property—and hence our lives—and they (including future politicians) will not abuse that power.

Few Houstonians would entrust strangers with control over their bank account, investments, or retirement plans. Yet zoning entrusts strangers with control over land use, and hence, everyone’s property.

When Houston was debating its first preservation ordinance in 1995, I spoke to City Council in opposition. I pointed out that the 90-day moratorium on demolishing certain structures that they were considering could be easily extended to 120 days, 360 days, or more at some future point.

Councilman John Kelley irresponsibly replied that he could not predict what future Councils would do, thereby implying that it was of no concern to him. The ultimate consequences of that ordinance did not matter to him, largely because he was incapable of projecting those consequences. He did not see a principle involved in the issue.

Preservationists have since pressed to extend the moratorium and/ or strengthen the ordinance. They established the principle in 1995, and since then it has simply been a matter of expanding its application. The same holds true of zoning, which is why zoning ordinances gradually grow in size, scope, and complexity.

At the time, then-Mayor Bob Lanier said that the ordinance was a fair compromise. Quite the contrary. No compromise between property rights and their violation is fair. Such compromises concede the principle that violating property rights is acceptable.

A rose by any other name is still a rose. And so is zoning.

© J. Brian Phillips 2008

Tuesday, July 29, 2008

From the Horse's Mouth

Some of you might think that I am exaggerating when I say that zoning and similar land use regulations give non-owners of property a voice in its use, that the rightful owner is held hostage to the demands of others. An article in today's Chronicle should end any doubts about such statements.

In an article titled Final say sought on homeless site, Bill Murphy writes about a proposed homeless shelter just outside downtown. The Eastwood Civic Association opposes the proposed project and they refuse to meet with the developers unless one specific condition is met: "The project will not go forward if its members oppose it."

In other words, if the civic association opposes the project they expect the developer to cave to their demand. And if the developer refuses to agree to that, at least some at City Hall are ready to do more.

Councilman James Rodriguez, whose district includes the site of the proposed shelter, said "he opposes the project because the civic association and others are against it." Principles such as property rights and the rule of law are not as important to Rodriguez as is pandering to his constituents.

Mayor White, who supports the project, "generally does not force a project on a district if the district's councilman opposes it." But he is willing to use force against the developers. In other words, White is willing to use government coercion to prevent the developers from using their property, but is unwilling to demand that a Councilman recognize the property rights of the developers.

As with the Ashby High Rise, this is nothing more than a gang of loud home owners seeking to use City Hall as their proxy. Because they do not like a proposed use for land near their neighborhood, they seek to make that use illegal. They seek to make the developers criminals for converting a long-vacant motel into affordable housing.

Interestingly, the civic association first voted to support the project in April. But several days later they rescinded their vote under pressure from home owners. (A similar thing happened when the City rescinded approval of a traffic study regarding the Ashby High Rise.) Which means, the civic association's board caved to their members, a Councilman is caving to the civic association, and Mayor White is caving to the Councilman.

And through all of this, the developers are helplessly held hostage to the arbitrary demands of a small number of home owners. The property rights of the developers are being violated because City Hall is more interested in political expediency than principle.

© J. Brian Phillips 2008

Monday, July 28, 2008

Ashby High Rise, One Year Later

Mike Snyder writes in today’s Chronicle that city officials have abandoned efforts to draft an ordinance designed to stop high density development in neighborhoods. The ordinance was originally aimed specifically at stopping the Ashby High Rise.

The Ashby developers first applied for permits a year ago. They lack one permit, which is being denied because of traffic concerns. This is despite the fact that the City first approved the voluntary traffic study conducted by the developers. The City withdrew its approval a few days later, supposedly under pressure from Mayor White.

That the developers must even seek government permission to use their property is appalling. That City officials are playing politics with the lives of others is more so. Last week, Andy Icken, a deputy public works director told a City Council committee that the ordinance that was being considered "would give people a warm feeling that this is the way the city does things."

It gives me a warm feeling for sure, but it isn’t a pleasant feeling. It is the outrage that accompanies witnessing a horrible injustice.

For a year the developers have jumped through every hoop placed in their way. They have attempted to reach a compromise with area home owners and the City (a tactic that I think is grossly wrong—it concedes the view that others should have any voice in how they use their property). They have endured attacks on their character, and been forced to spend their money in defense of their right to use their property.

Jane Cahill, a neighborhood activist said, "All parcels of land are not appropriate for all types of development." This is true, but it is irrelevant. The real issue is who should decide what is appropriate and what is not—the owner of the land or non-owners? Ms. Cahill makes her view very clear—she wants non-owners to be able to use government coercion to prohibit uses she and her cohorts find inappropriate.

Underlying all of the City’s efforts is the implicit threat of force. If the developers chose to defy the City and break ground, they would likely be arrested. But such implicit threats are apparently insufficient for Ms. Cahill. She calls the City’s latest action on the issue a “do-nothing approach”. Apparently she wants the City to openly single out the developers and prohibit them from developing their land. Apparently she has no reservations about imposing her views on others.

And this is the crux of the matter. Those who are opposing the Ashby High Rise are seeking to impose their values upon the developers (as well as future tenants of the project). They trot out clichés like “protecting our neighborhood” and “quality of life” without ever defining these terms. Nor do they bother to tell us whose idea of “quality” will prevail.

In the process, they advocate arbitrary laws that can just as easily be used against them. The same groups fighting Ashby are also opposed to a project in the Medical Center because they fear that eminent domain may be used to seize their properties. Apparently, they don’t mind using a club over the head of the Ashby developers, but don’t like the idea that the same club might someday be used on them.

The groups fighting Ashby can’t have it both ways. They seek to violate the property rights of others, while simultaneously seeking to protect their own property rights. They claim the right to own, use, and dispose of their property as they choose, while simultaneously denying the same right to others.

The developers of the Ashby High Rise have a moral right to use their property as they choose. They have been cast as villains. The truth is, they are the victims. Their rights have been violated. Their time, energy, and effort have been irrevocably taken. Justice demands that they be allowed to build their project with no further interference from anyone.

© J. Brian Phillips 2008

How Zoning Works

When I was in Hobbs, NM in 2007 someone pointed out that there is plenty of land available in Hobbs. If zoning prevented a particular use in one area, there are many other areas that would be available for the same use. This may or may not be true, but it is really irrelevant.

Imagine you went to a luncheon. The room holds 100 people. By fiat someone declares that only realtors can sit at one table, only teachers at another, accountants at another, etc. In other words, each table is zoned for a particular use. The organizers don’t want “incompatible” professions sitting together at lunch, even if the individuals want to.

Let’s also imagine that each table holds 8 people. But 12 realtors are present. And only 4 teachers are present. There is plenty of space for the teachers, but not enough for the realtors. The space for a particular use has been arbitrarily limited.

The organizers put a table in the lobby for the extra realtors. There are now plenty of seats for the realtors. However, some of those seats are not in a location that provides the same value to the realtors. They may be able to hear the speaker, but not with the same clarity. They will not be able to see any visuals he uses.

While there are adequate seats for the realtors, the value of each seat is not the same. The seats in the lobby are of less utility—they are not in the desired location.

This is what zoning does. Zoning restricts the use of each parcel of land. While there many be adequate land within the city for any particular use, it will not necessarily be in the location that provides the greatest value.

If a property owner desires a use that differs from the zoning plan, he can apply for a variance. This entails hiring a lawyer, preparing documents, attending hearings, etc. The cost of obtaining a variance will ultimately be passed on to the consumer, in higher housing costs, in higher rents, etc. The owner of the property will recover his costs, and the end user will be the one footing the bill.

When we add in the time involved in delayed projects and the costs associated with those delays, the costs increase further. Again, these costs are ultimately borne by the end user. At some point, the project may be abandoned because it has become economically unfeasible, even if the proper permissions can be obtained.

To return to our original story, let us imagine that the 4 realtors decide to seek a variance so that they can sit at the teacher’s table. They can lobby the appropriate authorities, fill out the required forms, and submit the required fees. How long do you think that they will do this? How long do you think that they will play this silly game just to sit in seats that are clearly vacant?

At some point they will decide that it simply isn’t worth the effort. All they want to do is have lunch and listen to a speaker, and instead they must jump through arbitrary hoops. They will decide to spend their time, effort, and money on activities that are more worthwhile.

This is the ultimate consequence of zoning.

While the economic consequences of zoning are very real, the primary objection to zoning is moral. Zoning prohibits property owners from using their land as they choose, and in doing so allows some citizens to impose their values upon others. There never has been, nor will there ever be, a moral justification for such actions.

Forcing realtors to sit in the lobby, when sitting elsewhere will violate nobody’s rights, is unjust and a violation of their rights. Forcing property owners to use their land in a particular manner is essentially the same thing.

The nature of an action does not change simply because it is undertaken by government and/ or has the support of the majority of the citizenry.

© J. Brian Phillips

Saturday, July 26, 2008

The Seattle "Experiment"

I stumbled across a refreshingly honest editorial in the Seattle Times.

The editorial cites a study by University of Washington professor Theo Eicher, who found that land use regulations imposed by the City of Seattle and the State of Washington increased the cost of a home by $200,000! The median home price in Seattle is $450,000, which means that land use regulations increase the cost of a home by 44%.

The editorial cites numerous regulations and their impact. For example, in 2005 Seattle imposed a $15 per square foot surcharge on developers to subsidize low-income housing. That regulation alone adds $9,000 to the cost of a 600-square-foot downtown condominium.

These regulations are making housing inside the city unaffordable for the middle class. In response, they flee to the suburbs. The result is the “urban sprawl” that Houston zoning advocates decry and the Houston Chronicle uses to justify greater government planning of land use.

What is sadly ironic about this is that Seattle is demonstrating the consequences of land use regulations. While Houston’s median housing price is about one-third of that in Seattle, pro-zoners would have us emulate Seattle and impose more restrictions on land use.

Even sadder, when Houston developers seek to increase density (which reduces sprawl and long commutes) land use regulation advocates oppose that as well. See the Ashby High Rise for the most visible example.

The examples of Seattle, San Francisco, and other cities with restrictive land use controls are well known and easy to discover. Why then, do zoning advocates in Houston continue to insist that Houston will not suffer the same dire consequences? Do they really believe that basic economic principles do not apply to our city?

The truth is, they really don’t care about the economic consequences. If economic prosperity were their goal, they would advocate greater individual freedom. The goal of zoning advocates is not prosperity, or the freedom that makes it possible. Their goal is control, control over the property, and hence the lives, of all Houstonians.

But economic arguments are not the real issue. The real issue is freedom—the right to pursue one’s values without interference from others (so long as you respect the mutual rights of others). Land use regulations are an attack on freedom, in that they prevent an individual from using his property as he chooses in the pursuit of his values.

In a free society, all transactions are based on the voluntary consent of all involved parties. Pro-zoners (like all advocates of government intervention in the economy) do not like the choices that individuals sometimes make. They object to the values that some individuals pursue.

Rather than accept the right of individuals to do so, they seek to prohibit such actions. They seek to impose their values, and the ensuing actions, on others. They seek to dictate what values will be legal.

The result is what has happened in Seattle and other similar cities. The result is a higher cost of living, longer commutes, and fewer choices. The result is a loss of freedom, and everything that freedom makes possible.

© J. Brian Phillips 2008

Thursday, July 24, 2008

Common Sense

An editorial in the July 20 Houston Chronicle called for a partnership between government and private developers to plan for Houston’s future. I wrote the following Letter to the Editor:

Your editorial “Common Sense” (July 20) implies that market forces are no longer sufficient to guide the city’s growth. Those market forces, you say, now make commutes expensive and stressful.

On the surface, this may seem plausible. However, you fail to identify the nature of market forces—the voluntary choices of each individual who chooses to participate in the marketplace. The market consists of individuals—both developers and home buyers— choosing what is best for them.

In place of individual choice, you state that greater government planning to increase density “just makes common sense”. Your position ignores the fact that developers must respond to the demands of consumers, and if greater density is desired, developers will react accordingly.

This in fact, is the case with the Ashby High Rise. Yet, in response to noisy home owners in the area, the City seeks to stop, or greatly reduce the scope of, the project. This is an example of what government planning will produce—disparate groups seeking to influence the planning process.

Individuals have a moral right to pursue their values without interference (so long as they respect the mutual rights of others). The free market—i.e., voluntary, private planning— allows this, and has provided Houstonians with a wide variety of affordable housing.

In its place, you endorse greater government planning. In place of the private, voluntary planning of individuals, you endorse the coercive planning of public officials. In place of allowing each individual to plan his own life, you endorse centralized planning to be imposed on everyone.
Such calls for greater government planning are common among the zoning crowd. They used that argument in the 1990’s, and apparently they will use it again.

They imply that the planning of individuals is somehow inferior to public planning, which reveals a great deal about their true intentions. Individual plan according to their personal values—what they want, need, and/ or desire. They make those plans because they are then free to implement them. In other words, they can choose their values and they seek to obtain those values.

Central planners do not like the fact that some individuals will choose values that the planners find objectionable. They don’t like urban sprawl, or strip malls, or myriad other uses of land. They don’t like the many choices and options available to consumers, because some of those uses are “ugly”, “inefficient”, or something else they regard as negative.

Rather than accept the right of each individual to choose his own values, they seek to impose one set of values upon the entire city. They want to dictate where we can live, what our homes and businesses look like, and virtually every other aspect of land use.

I suspect that many pro-zoners would deny the above statement. They would claim that they simply want more uniformity in land use, that they want to provide the city with the means to better provide necessary infrastructure, etc. Yet, they endorse a policy that in principle grants government complete control over land use.

If they truly want to improve the city’s roads, water, and sanitation, then I suggest that they re-evaluate their premises. There are other ways to accomplish these goals without subjecting the entire city to a tyranny over land use.

© J. Brian Phillips 2008

Monday, July 21, 2008

Groveling and Pandering

Last Friday I attended a Congressional hearing on universal health care and a bill introduced in the United States House of Representatives (HR676). The hearing was led by Sheila Jackson Lee and consisted of 2 panels of witnesses explaining the alleged need for universal health care. The witnesses were health care professionals, a union official, and an activist. While the topic does not directly pertain to land use, the proceedings were illuminating. See Gus van Horn for an excellent commentary on this farce.

The participants were unanimously in favor of universal health care. Individually their testimony took one of two different paths.

The first path was one of overwhelming praise for the bill and its authors. America’s health care system is in crisis, the witnesses said, and HR676 will address it. This was nothing more than blatant pandering to the egos of the politicians who were present. One in fact, pointed out that Lee was an excellent leader of a Boy Scout troop.

The second path was even more disgusting. While praising the bill, these witnesses said that it didn’t go far enough. We need more money for training nurses, for mental health care, and for a number of other areas. These groveling witnesses wanted more for their particular pet projects. They weren't content to merely praise Lee and her cohorts, they wanted more public money thrown into their trough.

This process is not unusual when politicians intervene in the economy and our lives. Economic intervention—including land use restrictions— benefits some at the expense of others. Those who will benefit pander to the politicians by singing their praises. Those who seek to increase their benefits and/ or power grovel for further intervention.

This is not limited to health care. Indeed, it is the process that invariably develops when government intervenes in the economy. Those who will benefit seek to curry favor with politicians. And those who will be harmed seek counter-measures to reduce the harm, or shift the harm to other individuals.

The unstated premise underlying this process is that government may legitimately intervene in the economy. That some individuals will be victimized (and not in the pathetic, meaningless sense the term is usually used) is accepted as a given. The only debate is over who will benefit and who will be harmed, who will sacrifice and who will collect the sacrifices.

But the truth is, everyone is harmed by such interventions. The benefits arbitrarily awarded by these politicians can just as easily be arbitrarily removed when the political winds shift. More fundamentally, when one advocates violating the rights of others, one simultaneously accepts the violation of his own rights.

This is the process that arose when Houston last considered zoning in the 1990’s. Across the city battles erupted over zoning designations for particular property. Neighbors fought neighbors over land only one, or neither, owned. Various groups formed, each pushing its particular vision and seeking to use the political process to impose that vision on the rest of the city. Having accepted the premise someone’s rights would be violated, their only recourse was to gang together to make others the victims.

Human beings are not sacrificial animals whose lives can be disposed of by politicians or noisy gangs. Each individual has a moral right to his own life, and the freedom to pursue his own happiness. This is true in health care, and it is true in land use.

© J. Brian Phillips 2008

Sunday, July 20, 2008

The Growth of Zoning

The Indianapolis zoning ordinance of 1922 was 18 pages long. By 1968 it had grown to 46 pages. Today it is 557 pages. This is typical of zoning. In Property and Freedom, Bernard H. Siegan wrote:

Small, modest zoning ordinances grow into very complex and complicated ones. One reason is, of course, the change in conditions, building techniques, and thinking that occurs over the years and is reflected in our laws. But there are other explanations for the uncontrolled growth of zoning. The first is that zoning has been a story of unrealized expectations. It usually does not work as represented… Another reason for the proliferation of zoning regulations is that the process is a battlefield for warring interest groups. (page 189)

This pattern is not limited to zoning. Indeed, it is true of virtually every government intervention into the economy. For example, the federal income tax originally applied to a very small percentage of individuals and was relatively straight forward. It has grown into a massive, unintelligible tax code that impacts every individual.

Siegan correctly identifies the political reasons for this. Such interventions never work as expected (economists call this unintended consequences). In response to the unrealized expectations, the politicians amend the law to “correct” the problems their intervention created.

Political intervention in the economy is designed to achieve certain values—values chosen and dictated by politicians. But those values are necessarily not universally accepted—if they were, government coercion would not be needed. Consequently, individuals seek other methods for achieving their values, and in the process, create economic demands that did not previously exist. (Government mandates regarding ethanol in gasoline are one example.)

In addition, such interventions always benefit some at the expense of others. Those who are harmed may take several courses of action. They may simply abandon the value by closing their business, retiring, or something similar. Or they may lobby for changes to the law, changes that will invariably harm someone else.

In the latter case, the process becomes a constant battle between various groups, each seeking to curry political favor. Most politicians are all too happy to encourage this process, as they can reward their political supporters. Over time the law morphs into a mish- mash of often contradictory dictates.

The solution is not reform of the existing laws, nor is it the election of more ethical politicians. The solution is to end government intervention in the economy, including land use. The solution is the full recognition and protection of property rights. The solution is to remove the power of politicians to intervene into our lives.

Friday, July 18, 2008


All zoning ordinances contain provisions for variances. The web page for the city of Anchorage, Alaska states: "A variance is, in essence, permission to break the zoning law to give a defective property parity with neighboring properties." The specifics for receiving a variance differ from city to city, but they essentially amount to begging the zoning board for permission to use your property as you choose.

There are two aspects of this worthy of comment.

The first is that you need permission to use your property as you choose. Often that permission is granted only with the agreement of your neighbors. In other words, your neighbors have the final say so in how you use your property.

The second aspect is that there are exceptions to the zoning plan. In other words, the zoning plan isn’t really a plan. It’s just a guide that can be changed at the discretion of zoning officials—and your neighbors. Your neighbor could object for any reason, or no reason at all. He could simply be a jerk and deny you permission to build a deck onto the back of your house.

Any law that has exceptions is subjective by its nature. It means that applicability is left to the discretion of the ruling officials.

An agenda for a variance hearing in the town of Niskayuna, New York can be seen by clicking here.

Among the variances to be considered are: a garage that will be 17’ 6” from the property line rather than the prescribed 20’; an 80 square foot shed; and a 160 square foot shed. Public hearings will be held to determine if a property owner can construct a small shed on his property and non-owners of the property will make the determination.

Under these circumstances, a property owner cannot plan, because his plans may be thwarted. He cannot use his property as he chooses, but only with the permission of others. He cannot pursue his values without first obtaining the blessings of politicians, bureaucrats, and/ or noisy neighbors.

Wednesday, July 16, 2008

Whose Plan Should Prevail?

Zoning advocates talk about the need for planning. Houston, they claim, has developed in an arbitrary and unplanned manner. At the same time, they point to master planned communities such as New Territory as evidence that Houstonians want planning.

The contradiction in such claims seems to escape the pro-zoners. More significantly, they seek to substitute public planning for private planning. They seek to substitute coercive planning for voluntary planning.

Planned communities restrict land uses through private, voluntary contracts—i.e., deed restrictions. If the buyer finds the restrictions undesirable, he can simply refuse to purchase the property. His acceptance of the restrictions is his own choice.

Zoning however, is imposed by force. The property owner has no voice in the restrictions placed upon his property. Indeed, zoning actually grants non-owners of the property a greater voice in its use.

In the process, the plans of the property owner are rendered moot. He must sit by helplessly while others determine the use of his property and impose their values and their plans upon him.

Freedom allows us to pursue our values without intervention from others. Individuals have a moral right to plan and to implement that plan. Freedom allows individuals to adjust their plans as their values and/ or conditions change. Freedom is the primary reason that Houston has not suffered the same economic problems as more restrictive cities.

Despite the well documented problems associated with zoning and highly regulated communities, zoning advocates would have us believe that their plan is somehow superior. And they seek to impose that plan upon the entire community by force.

© J. Brian Phillips 2008

Monday, July 14, 2008

Political Power vs. Economic Power

Last year when I was in Hobbs, NM to help fight a zoning ordinance there, I was interviewed by the newspaper editor. At one point I mentioned that zoning concentrated power in the hands of a few political officials. He responded that without zoning, power was also concentrated in the hands of a few, namely builders and developers.

His point was founded on the mistaken belief that political power and economic power are the same.

Political power is the power to coerce. It is the power to dictate the actions of others. It is the power to criminalize voluntary actions. It is the power to impose one’s values upon others under the threat of fines or imprisonment for disobedience.

Economic power derives from the voluntary consent of everyone participating in the marketplace. Economic power derives from providing values to others, and the greater the values offered, the greater the economic power.

The difference between political power and economic power is the difference between the coerced and the voluntary, between the choices of political officials and the choices of individuals.
Economic power is earned by meeting the freely chosen desires of consumers. It is earned by producing those values that consumers seek.

Freedom means the right to pursue one’s values. As a producer, this means that individuals may offer those values that others seek. As a consumer, this means that individuals may purchase, or not purchase, those values offered by producers. The choice is voluntary on the part of all individuals.

Zoning removes this choice. Zoning removes land use from the voluntary choices of producers and consumers, and vests those decisions in the hands of zoning officials. It is a power that is economically impractical, and morally reprehensible.

© J. Brian Phillips 2008

Saturday, July 12, 2008

Winning the Battle but Losing the War

The following talk was delivered by J. Brian Phillips at a luncheon hosted by the Houston Property Rights Association on May 14, 1993. The warning was not heeded.

During the debate over zoning, its proponents have made many claims about
zoning: it will encourage economic growth, it will improve our “quality of life”, it will prevent “undesirable” land uses, etc. Underlying all of their arguments are three unspoken premises which have remained unidentified and unchallenged.

Exposing and refuting those premises would be devastating to the zoning movement, as well as many other movements. However, if we do not identify and thoroughly reject those premises, we may win the battle against zoning, but ultimately lose the war. This is the subject of my talk today.

In today’s intellectual atmosphere, few concepts have been more perverted than the concepts of rights. Everywhere we turn, we hear demands about a “right to a job,” a “right to medical care,” a “right to education,” “rights” for animals, fetuses and trees, etc. Just as inflation of the money supply erodes the value of the dollar, inflation of rights erodes legitimate rights—i.e., individual rights.

If we are to defend the right to property, we must begin by understanding what the concept of “rights” means, and upon what it depends.

A right is a moral principle which defines and sanctions an individual’s freedom of action in a social setting. Rights establish the boundaries within which an individual may act. Rights allow individuals to act independently, rather than by permission. For example, one acts by right if one selects one’s profession; one acts by permission if one’s profession is chosen by the State.

You should note that my definition of rights recognizes freedom of action, but does not guarantee that one’s actions will be successful, nor does it grant one a claim to the actions of others. This may seem like a petty distinction, but our ancestors fought the Civil War over it. At that time, Southern cotton farmers held that their “right” to cotton, and the quality of life it provided, justified a claim on the labor of others, namely, Negro slaves. This perversion of “rights” by the Confederacy was absurd, and it is no less absurd for zoning advocates to claim that they are protecting the property rights of homeowners by destroying them for everyone else.

Rights simply provide the proper social environment in which values can be pursued, attained, and kept. Consequently, there is no such thing as a “right” to a job, or a “right” to medical care, or a “right” to free education, or a “right” to a voice in how our neighbor uses his property. To claim that one has a right to the products of another’s labor is to claim that one has a right to enslave others.

We must also realize that there is only one way in which rights can be violated—by physical compulsion. When physical force is used to compel or prohibit certain behavior, an individual is prevented from acting in a virtuous manner, i.e. according to his own rational, independent judgment.

The virtue of independence is not a mandate to do anything one wishes. Nor is it a directive to be different for the sake of being different. Independence means thinking and acting according to one’s own rational judgment. It means placing the facts above one’s desires or wishes. It means placing reality above fantasy. It means being rational and objective, and acting accordingly.

By implication, the successful businessman knows this. But unfortunately, many do not know it in explicit terms.

We are all familiar with stories of men who have conceived of a product which others called crazy. In fact, most of us probably arrived here today in one such product—the automobile. Yet, when people laughed at Henry Ford’s horseless carriage, he did not abandon the truth he saw simply because others failed to see it. Their ignorance did not change the facts; their blindness did not alter reality.

Because he lived in a society which recognized his rights—i.e., his right to think and act without the permission of others—Henry Ford went on to produce an affordable means of transportation which revolutionized our society.

And Henry Ford is not an isolated example. Thousands, probably hundreds of thousands of men and women have pursued their own visions, on whatever scale, despite the condemnations and ridicule of others. And, I imagine it is safe to say that there are many such people here today. Rational decision making is necessary in every human endeavor, including the development and maintenance of real estate.

Zoning will prevent the rational, innovative thought which has made Houston so prosperous and America so economically powerful.

Under zoning, all land use is determined by zoning officials. They may zone a parcel of land for any use they choose, or completely prohibit development of that land. They may attach any conditions they choose to a building permit. Not only may they zone an area for a particular use, such as single-family homes, they also have the power to define what constitutes that use. Zoning officials thus have complete reign over the use of land within a community.

This kind of power is a magnet for special interest groups, each pleading for its own pet cause. One may demand Spanish architecture, while another wants to limit a building’s size. One group may insist on the inclusion of public sculpture, while another wants to cancel the project entirely.

Through all of this, a developer must helplessly sit while others debate
his future, while others determine what happens to his dreams, his property, his
life. He becomes a hostage to the desires, decrees, and demands of others. He
may act, not by his own independent judgment, but by the permission of zoning
officials. No matter how rational and consistent with the facts his judgment is,
it is swept aside by the decrees of the zoning board. No matter how proper and
beneficial his decisions are, they can be voided by the fiat of others.

Zoning officials thus become more than simply masters over a property owner’s actions; they become paralyzers of his mind. They make his decisions and conclusions irrelevant, for he cannot act on them.

This is the most crucial issue of our time and not only in regard to zoning.

While I have identified the role of the mind in the development of property, this same principle also applies to all property owners, large and small, as well as the
consumers who are served by them. Zoning negates not only the judgments of developers, but also home owners, convenience store customers, and every other
consumer in a community, which means, everyone.

The very nature of zoning demands that the rights of individuals be violated. By preventing individuals, as consumers and producers, from acting according to their own independent judgments, zoning prevents individuals from practicing the virtue of rationality.

Given the fact that zoning is such a blatant violation of individual’s rights, why have its advocates been so successful? Why is zoning on the brink of being adopted by City Council? And given zoning’s institutionalization of force and negation of rational judgment, how have zoning advocates been able to use the term “planning” in a manner which portrays them as advocates of the good?

Zoning has been presented as a cure to many of Houston’s ills. We have been told that it will protect our neighborhoods from greedy developers, that it will “empower the people”; that it will allow for a “common vision” to guide Houston’s future growth. Zoning advocates have even claimed that zoning will bring “rational planning” to Houston’s development. Underlying all of these claims are two unspoken premises—premises which many, if not most, of zoning’s opponents also accept.

Zoning advocates believe that the good of the community supersedes the good of any particular individual. They believe that we must all make certain sacrifices for the welfare of our community. They believe that those who do not make such sacrifices “voluntarily” should be forced to do so.

On the other hand, many zoning opponents agree that the welfare of the community does require some sacrifice on the part of each of us. And they agree that some “selfish” people will refuse to do their “fair share” and must be “prodded” into participating. They object when such “prodding” goes too far. They don’t object to sacrifice, or prodding, only to taking it to “extremes”. They don’t object to abrogations of property rights, except when they occur in a comprehensive fashion. The best example of this are those who oppose zoning but do not oppose other infringements of property rights, e.g., restrictions on billboards, ordinances controlling sexually-oriented businesses, etc.

These so-called “opponents” of zoning share the same fundamental premises as zoning advocates, premises which justify zoning and many other injustices: They believe that the sacrifice of values is moral, and the unit of significance is the group rather than the individual. These two concepts—sacrifice and collectivism—dominate the debate over zoning.

To the collectivist, individuals are insignificant—each of us is here only to serve the group, whether it is the community, or our nation, or our race, or our economic class. The individual is to be subservient to the group, which many demand anything and everything from him. If he refuses, he is labeled as selfish, greedy, a “rugged individualist,” out of touch with the times, etc. And in the end, the individual is forced to sacrifice his values for the alleged benefit of others.

If the opponents of zoning agree with zoning advocates that sacrifice is good and the public welfare is something other than the well-being of individuals, then opponents to zoning will have surrendered the moral high ground and zoning advocates may lose the battle, but win the war.

Even if our referendum [opposing zoning on the November ballot] is successful, the principles accepted by both sides demand that the elements of zoning will be ushered in, one by one. Over the past decade, we have already seen this, as City Council has enacted ordinance after ordinance that, in other cities, are part of comprehensive zoning, e.g., controls on sexually oriented businesses, a landscaping ordinance, sign and billboard restrictions, heliport and parking controls, etc.

Instead of defending their right to earn a profit, to grow rich, to pursue their own values, Houston’s businessmen have usually meekly complained that such controls were too excessive, and then sought to compromise with their destroyers. Today, the destroyers are knocking on the door, demanding the final compromise.

Zoning demands sacrifice, subservience to the group, and uses force to insure compliance. The only alternative to zoning is capitalism, and it can only be defended on its intellectual and moral base, i.e., self-interest, individualism, and reason.

Faced with this alternative, what is one to do? Should one abandon the realm of ideas, declaring it impractical and impotent, and raise a million dollars to run a series of television ads? Or should one confront those who seek to enslave him, and make them justify their actions? Should one surrender one’s values, or should one fight for them?

If you choose to fight for your values, you can only do it by identifying and defending your right to those values. There are essentially two things you can do to defend your rights.

First, familiarize yourself with the moral and intellectual foundation of capitalism. Toward this end, I am offering free copies of Ayn Rand’s book The Virtue of Selfishness to those who are interested. In this book, Miss Rand explains the relationship between the mind and rights more thoroughly than my time here permits. Those who are interested in the ideas I have expressed today are encouraged to pick up a copy of this book.

Secondly, when engaged in discussions, or writing letters to the editor, etc. regarding zoning, be certain to identify the distinction between zoning and a system based on property rights. Zoning is a system which demands the sacrifice of values, which demands that one cut one’s own throat, or cut the throat of others. As the philosopher Leonard Peikoff has said, capitalism is a system which opposes throat cutting as a matter of principle. You should point out that zoning uses force to compel or prohibit certain behavior, while capitalism is a system which allows individuals to engage in peaceful, voluntary relationships. There is a fundamental difference between zoning and capitalism, not only in regard to politics, but also in regard to how human beings are viewed.

Opponents of zoning know that zoning is a giant land grab. Advocates of freedom need to have the courage to challenge not only this injustice but the previous wholesale theft which made it possible—that of ideas and morality.

© J. Brian Phillips 2008

Thursday, July 10, 2008

The Cult of Sacrifice

Those in favor of zoning present numerous arguments for their position. Land use restrictions are necessary they say, to protect neighborhoods, improve our quality of life, create stability in land use, etc. Regardless of the arguments used, zoning advocates seek to impose certain standards upon the entire community.

Zoning advocates attempt to justify their coercive plans by arguing that the “public good” requires such measures. What this means is that the welfare of the group is more important than the welfare of any individual. In other words, the individual must sacrifice for the good of the “public”.

The “public” however, is nothing more than a group of individuals. Consequently, when someone demands that the individual sacrifice for some “public good”, he really means that some individuals must sacrifice for the benefit of other individuals.

Many bromides are used to support this belief. Each must do his "fair share" for the "common good". Those who refuse are regarded as "selfish", "rugged individualists", etc. and may be forced to sacrifice their values. This is the true meaning of “public good”—some individuals may force others to sacrifice their values.

This is not mere hyperbole. An individual who refuses to obey the dictates of zoning officials is subject to fines and/ or imprisonment. He becomes a criminal whose money or freedom will be forcibly removed. Ostensibly his crime is a violation of the zoning code; in truth, his crime is to refuse to voluntarily sacrifice his values.

The cult of sacrifice is not content with self-immolation. They believe that they have a right to impose their views and the accompanying sacrifice on others. This speaks volumes about their self-image, as well as their view of other individuals.

The cult of sacrifice believes that you should live your life for the benefit of others—your neighbors, your community, your city, your ethnic group, etc. They believe that self-sacrifice is moral and noble. They are wrong—it is neither. They believe that they are justified to impose sacrifice upon others. They are wrong—it is noting more than thuggery.

Every individual has a moral right to pursue his own values without intervention from others, so long as he respects their mutual right to do so. Individuals are not sacrificial animals whose lives can be disposed of by others, no matter their number, their cause, or their intentions. In the words of Thomas Jefferson, every individual has “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.

Every individual has a moral right to use his property in the pursuit of his values, his happiness, and his life. And your neighbor has the same right.

© J. Brian Phillips 2008

Tuesday, July 8, 2008

Sense and Sensibilities

In April I appeared on a panel to discuss the Ashby High Rise project. You can hear the audio by clicking here. The audience consisted largely of upper-middle income home owners from nearby neighborhoods. They became very angry and upset when I said that they were using the coercive power of government to impose their values on others.

Their reaction was consistent with what I had anticipated. I expected a hostile audience, and I knew that my words were not going to win me any friends. I knew that my words would be provocative.

Judging from the demographics of the neighborhoods, I strongly suspect that the home owners are professionals. They likely think of themselves as good citizens, and they probably are in the conventional sense of the phrase—they hold a steady job, they pay their taxes, they vote, etc. They aren’t scofflaws with a string of arrests.

This is why my words provoked such anger. I was essentially accusing them of being thugs, and they could see no resemblance between themselves and some gangsta rapper. But the fact is, these home owners are spiritual cousins of the gangsta rapper, and in some ways the latter is more honest than the former.

The gangsta rapper does not hide his methods. He openly admits that he lives by the creed that might makes right, that he is justified to seize what he wants, that force is an acceptable means of social interaction.

Conversely, the home owners explicitly reject such ideas. Indeed, during the question period I responded to one question by pointing out the implicit acceptance that might makes right, and the audience responded with boos and derogatory comments. But explicitly rejecting a premise does not mean that one has rejected all of its implications.

One audience member asked me how I could be so certain of my position in the face of the fact that the overwhelming majority of those in attendance disagreed with me. He questioned how I could reject “the public good” being sought in this exercise of “police powers”. Both questions imply that might makes right.

In the former, the implication is that the number of people holding an idea determines its truth. Which means, truth is determined by a vote and the majority can then impose “truth” on the minority. In the latter, the government’s police powers can be used to impose certain values upon the entire community. In short, the questioner was saying that a vote will determine how government coercion will be used.

Of course, the questioner did not put it into those words. He hid behind terms like “public good”. I was not so accommodating, and stripped his euphemisms to their essence.

For these upper-middle income home owners, my words shook their sensibilities. They are not accustomed to being equated with thugs. But thugs they are.

This group has sought government action to stop a development they do not like. Unlike the gangsta rapper who will simply pull his gun and demand that his desires be met, the home owners sought to use government as their proxy. But using a proxy does not change the nature of the action, nor does it absolve one of responsibility for the ideas advocated. (Similarly, hiring a hit man does not absolve one of the murder.)

This is not a class issue. This is democracy in action. This is the majority imposing their values upon the minority. This is one group of individuals using the power of government to prescribe the actions of others. That a majority supports such steps does not change that fact.

The United States Constitution was written to limit the powers of government and protect the rights of individuals. Our Founding Fathers established a republic, not a democracy. The Founding Fathers recognized the right of each individual to pursue his own happiness. Gangs do not, no matter the number of members or the auspices under which they act.

© J. Brian Phillips 2008

Monday, July 7, 2008

Principles and Planning

The following OpEd article was submitted to the Houston Chronicle.

Recent events, such as the release of Stephen Klineberg’s newest survey and the controversy over the Ashby High Rise, have provoked a renewed discussion over land use restrictions in Houston. While such discussions are important, they are meaningless unless they address fundamental principles.

Klineberg’s survey found that majority of Houstonians favor increased government control of land use. Politicians and pundits alike are citing this as justification for expanding City Hall’s powers. (See the May 4 Chronicle article, “Zoning’s not the issue for Houston” for the latest example.)

The premise underlying this position is that if the majority agrees to a particular policy, it must be right and proper. And therefore, the dictates of the majority may rightfully be imposed upon the rest of the city.

Some may argue that this is the democratic way. However, America was not founded as a democracy, but a constitutional republic. James Madison wrote, “There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong”.

Thomas Jefferson echoed this sentiment: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” Our Founders understood that democracy was nothing more than a tyranny of the masses.

The Founders sought to protect the rights of the minority from the passions and whims of the majority. They understood that the individual is the smallest minority, and thus they sought to protect the rights of individuals.

The right to property—the right to own, use, and dispose of material values—is one of the most fundamental rights. The right to property means the right to use your property as you choose, free from the dictates of others. (You may not use your property to violate the mutual rights of others.)

Land use restrictions—no matter what they are called, how they are justified, or the number of supporters—are a violation of property rights. They force the property owner to abide by the dictates of government in the use of his property. He may act, not by right, but by permission.

The current discussion of land use controls has focused on the need for greater planning in Houston’s development. The implication of such calls is that Houston’s growth has been unplanned. Apparently, the demagogues pushing this idea have not heard of New Territory, Cinco Ranch, and many other planned communities around Houston.

In the early 1990s zoning advocates pointed to such communities as evidence that Houstonians want planning. They ignored the fact that there is a fundamental difference between planned communities and zoning. Today’s current advocates of land use restrictions ignore the same fact.

Planned communities involve the voluntary consent of the property owners. Such communities use deed restrictions—i.e., contractual agreements. Zoning and similar land use controls use government power—i.e., coercion. There is a fundamental difference between the voluntary and the coerced.

Advocates of land use controls object to the planning conducted by individuals, and seek to replace it with central planning. They object to the choices make by some individuals (such as the Ashby High Rise), and seek to usurp individual choice with group choice.

The debate over land use restrictions involves much more than dirt and steel. It is about the rights of individuals. It is about the proper role of government.

Houston has traditionally respected property rights. Houston has grown and prospered because it has protected the right its citizens to use their property as they choose. Houston has protected the rights and freedoms of individuals.

Houstonians have an opportunity to retain that proud heritage. Houstonians again have an opportunity to assert their freedom. The debate over land use controls will be prolonged and heated. It is a debate that must focus on fundamental principles. Houstonians deserve nothing less.

© J. Brian Phillips 2008

Friday, July 4, 2008

Quotes on Property Rights

On Independence Day it is worth remembering what our Founding Fathers had to say about property rights.

“Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.” Samuel Adams

“Property is surely a right of mankind as real as liberty.” John Adams

“No power on earth has a right to take our property from us without our consent.” John Jay

“As a man is said to have a right to his property, he may be equally said to have a property in his rights.” James Madison

"A right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings." Thomas Jefferson

"Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their death."
James Madison

"All men are created equally free and independent, and have certain inherent rights, of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing the obtaining of happiness and safety."
George Mason

"To take from one because it is thought that his own industry and that of his father's has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association--'the guarantee to every one of a free exercise of his industry and the fruits acquired by it.'" Thomas Jefferson

And a few notable quotes from others:

“Ultimately property rights and personal rights are the same thing.” Calvin Coolidge

“The Right of property is the guardian of every other Right, and to deprive the people of this, is in fact to deprive them of their Liberty.” Arthur Lee

“Just as man can't exist without his body, so no rights can exist without the right to translate one's rights into reality, to think, to work and keep the results, which means: the right of property.” Ayn Rand

“Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race.” William Howard Taft

“If history could teach us anything, it would be that private property is inextricably linked with civilization.”Ludwig von Mises

“The reason why men enter into society is the preservation of their property.” John Locke

“So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. “ William Blackstone

"The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not." Fredrich Hayek

Thursday, July 3, 2008

Protecting Neighborhoods

Zoning advocates like to make lots of noises about how zoning will protect neighborhoods. Who could possibly be against that? Few people want to live in a crime infested neighborhood, or have neighbors with dilapidated cars in the front yard.

But like most advocates of government coercion, zoning supporters don’t acknowledge how they will protect neighborhoods. They don’t tell us the means by which they will achieve their ends. They want us to believe that the ends are so beneficial and so widely supported that the means are irrelevant.

But the ends do not justify the means. Any ends that require the initiation of force as their means are not justified. And this is precisely what zoning does.

Zoning imposes restrictions on how you may use your property. Under zoning, you may use your property, not by right, but only with the permission of zoning officials. And if you violate their edicts, you are subject to fines and/ or jail time.

What this means is that if you build a shed that violates zoning codes, you could go to jail. If you install shutters that violate the zoning code, you could be fined. If you do anything on your property that zoning officials do not approve, you become a criminal.

To be “democratic” and “empower the people” zoning officials solicit input from neighbors during zoning hearings. Typically, if neighbors disapprove of your intended use, zoning officials will reject it. Which means, your neighbors will have a greater voice in the use of your property than you will.

Personally, I would much rather have neighbors with junky cars in the front yard than neighbors who tell me how to use my property. Junky cars are ugly. Power lusting neighbors are equally ugly, and also immoral.

© J. Brian Phillips 2008