The More Things Change

In the early 1990s a group of Houstonians attempted to bring zoning to the city. In a debate that lasted several years, they repeated the same arguments that had been made in previous attempts to institute zoning in Houston. And, while one of the city's major newspapers at the time--the Houston Post--city council, and many community "leaders" endorsed the plan, it was defeated in a referendum on my birthday in 1993. It was one of the best birthdays in my life, and made the efforts of several years very satisfying.

Early in the debate I wrote a pamphlet with my friend Warren Ross that exposed the principles underlying zoning and a proper alternative. We distributed this pamphlet widely and during the debate I spoke to numerous community groups, city council, and other organizations. I wrote several OpEd articles and was quoted in the papers semi-regularly. I would like to think that these efforts had an impact on the final vote.

One of the talks I gave during this time was titled "Winning the Battle, But Losing the War." In this talk I predicted that, without the proper moral defense of individual rights, zoning would not go away. And it hasn't. It has changed its form, but the principles that underlie zoning have not been defeated. 

Following the defeat of the zoning referendum, zoning advocates were very sore losers. They made it clear that they would not give up, and they haven't. From the Ashby High Rise to sexually-oriented businesses to billboards, we see the ideas of zoning at work. We see the same, or very similar arguments being presented.

In the aftermath of the zoning debate, I re-wrote our original pamphlet to include the arguments taken by zoning advocates to explain their defeat. Because those arguments are still used today, though on more narrow issues, I am posting links to that pamphlet (which were the first posts on this blog).

The Government versus Freedom, Part 1

The Government versus Freedom, Part 2

The Government versus Freedom, Part 3

The Government versus Freedom, Part 4

The Government versus Freedom, Part 5

The Government versus Freedom, Part 6

The Government versus Freedom, Part 7

Peter Brown: Then and Now

On Sunday a comment called me on my assertion that Peter Brown supported zoning in the 1990s. Apparently Brown recently claimed that he did not support zoning. I was asked if I have any evidence to support my claim. In my response I cited an article from the defunct Houston Post from April 1988 in which Brown wrote: “Perhaps one of the reasons some politicians and developers in Houston have traditionally opposed city planning is its very democratic nature—it redistributes some of the power and decision-making authority and invites public debate on important issues.” Brown's words at the time, and in the years since, have made it clear that he supports "public debate on important issues".

It is possible that Brown never publicly said, "I support zoning." However, one can imply support for a position by a person's actions and a person's words. And that is certainly the case with Peter Brown and zoning.

Kay Crooker, Brown's co-author of the article cited above, was an outspoken advocate of zoning. If Brown did not support zoning, why did he co-author an article with an advocate of zoning that spoke favorably of zoning? If Brown did not support zoning, then he was doing a very poor job of conveying that fact.

Brown might claim that he supported (and still supports) "planning" rather than zoning. But as I wrote in 1990 in The Freeman and last year in this post, "planning" is just a euphemism for zoning. For a plan to have any useful purpose, the city will require enforcement powers, which means, the city's plan will be implemented through land-use regulations. Whether Brown wishes to call this zoning or "planning" or dancing in the park, such regulations are the equivalent of zoning--they will violate property rights.

During the zoning debate in the 1990s pro-zoners frequently pointed to master-planned communities and declared that Houstonians clearly wanted planning. In other words, at the time, leading zoning advocates made no distinction between planning and zoning. (Nor did they make a distinction between voluntary private planning and coercive public planning.) Indeed, the city department that drafted the zoning ordinance was called the Planning and Zoning Commission, and it was renamed after Councilman Jim Greenwood proposed that the city adopt zoning. The city itself made no distinction between planning and zoning, regarding the latter as the means of implementing the former.

I do not know why Peter Brown denies his support for zoning. Perhaps he forgot, in which case, I would suggest that his senility is evidence that he isn't fit to serve as the city's mayor. Perhaps he thinks that we forgot, in which case, I would suggest that his arrogance is evidence that he isn't fit to serve as the city's mayor. Perhaps he truly believes that in writing an article with a known zoning advocate, he would not be perceived as supporting zoning. In which case, I would suggest that his naivety is evidence that he isn't fit to serve as the city's mayor. Perhaps he is trying to distance himself from a past political failure, in which case I would suggest that his intellectual dishonesty is evidence that he isn't fit to serve as the city's mayor. I could go on, but I think that you get the point.

As if I need to present more evidence of the connection between planning and zoning, consider what the Chronicle said in 1990 when Al Haines, the city of Houston finance director, unveiled a reorganization of city departments:

"I think the most significant change... will be in planning,"Haines said. "It's a major change that should help Houston get ready for the future"... The Planning Department now has a $1.6 million annual budget and 56 employees who plan for the city's growth. But under Haines'proposal, Knudson [Planning Department head Pat Knudson] would get more than 300 employees from other departments....

Knudson, confirmed last month as planning director, said the changes would help her department generate stronger land-use controls. She and the city Planning Commission are studying the possibility of zoning as one of those controls.

"There is growing emphasis on planning that's almost exponential," Knudson said. "People are talking about better land use. This reorganization will help us focus and concentrate on that direction."

Peter Brown can claim anything he wants. He can claim that "planning" and zoning are essentially different, but his claims do not change the facts. He can claim that he did not support zoning, but his claims do not change the facts. If a man suggests that a city needs "planning" in the midst of a debate over planning and zoning, he cannot claim that he supported the former but not the latter. In 1990 planning and zoning were inseparably linked. Peter Brown may forget what he said twenty years ago. I don't.

Plato's War on Houston: From Zoning to "SmartCode", Part 4

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave. Ayn Rand, Man’s Rights

The solution to the problems of zoning is not a different gang leading the city, or a different set of rules and regulations. The solution is a different ideal—an ideal that is founded in reality. The solution is an ideal that recognizes the moral right of each individual to live his life as he chooses, so long as he respects the mutual right of others. The solution is capitalism—the unknown ideal.

Capitalism is the only social system that recognizes and protects individual rights, including the right to property. It is the only system that prohibits individuals from interfering with the actions of others. It is the only system of individual liberty.

The extent to which a nation, or a city, recognizes and protects individual rights is the extent of the happiness and prosperity enjoyed by the citizenry. America—the nation which has been most dedicated to individual rights—is arguably the most prosperous nation in the world. Houston—the city in American most dedicated to individual rights—is arguably the most prosperous city in the nation. That freedom has allowed individuals to pursue their own values, and in turn offer their fellow citizens more choices and opportunities. All Houstonians have benefited.

It is quite easy to look around Houston and find many things with which one disapproves. A neighbor may paint his house an obnoxious color or plant hideous shrubs. A business may advertise its wares in a gaudy fashion or open in a location we dislike. A national chain may displace a locally owned shop or the character of a neighborhood might change. We may find such facts frustrating and wish someone would “do something” to prevent such things.

Life will be a constant disappointment to those who dream of a Platonic ideal—of a world that contains no such frustrations. Unhappy with the world around them, for centuries men have dreamed of such an Eden, renouncing this world and seeking their dream through brute force. If others will not act as they deem proper, the Platonic idealists do not hesitate to seek mastery over their fellow citizens.

We must reject Plato, Kant, Dewey, and all of their variants. We must develop a different dream and then act to make it real. We must dream of a world in which individuals—all individuals—are free to live as they choose, free to aspire to greatness and take the actions necessary to achieve it. It is a world in which we are not our brother’s keeper, unless we voluntarily choose to be so. It is a world in which talent and achievement is celebrated, not penalized with higher taxes and guilt trips about helping the needy.

Such a world is possible, here on earth. But we must first renounce force as a means for dealing with other men (except in retaliation against those who initiate its use). We must embrace reason and persuasion as our sole means for dealing with others. It is a world in which all interactions are based on the voluntary consent of each individual involved.

The Platonists speak of developing a consensus, whether city-wide or within neighborhoods, as the means for establishing their ideal. They argue for using compulsion to create a better society, while destroying the lives of the individuals who comprise that society. They refuse to allow the individual to develop and pursue his ideal—the individual must subjugate his dreams and aspirations to those of the collective.

Our Founding Fathers bravely asserted that each individual has a right to his own life, his own liberty, and the pursuit of his own happiness. They sought to great a nation in which these rights were protected, and nobody—including government—could violate these rights. The freedoms they established unleashed the citizenry, resulting in unprecedented prosperity and happiness.

The Founders dared to dream of individual liberty, and risked their lives, their fortunes, and their sacred honor for that cause. It was a glorious and just cause, and it is no less so today.

Plato's War on Houston: From Zoning to "SmartCode", Part 3

By itself, as a distinctive theory, the pragmatist ethics is contentless. It urges men to pursue “practicality,” but refrains from specifying any “rigid” set of values that could serve to define the concept…

In politics, also, pragmatism presents itself as opposed to “rigidity,” to “dogma,” to “extremes” of any kind (whether capitalist or socialist); it avows that it is relativist, “moderate,” “experimental”… When Dewey wrote, the political principle imported from Germany and proliferating in all directions, was collectivism. Leonard Peikoff, The Ominous Parallels

John Dewey was the most influential Pragmatist in America. He explicitly dispensed with principles, declaring that there are no absolutes. We must act, judge the results, and then modify our actions. Most of all, we must fly by the seat of our pants. This is the approach embraced by all of the advocates of land-use regulations.

During the debate over zoning in the early 1990s, Jim Greenwood insisted that Houston would avoid the corruption, economic turmoil, and other ill effects experienced by other cities with zoning. We would avoid these problems because we would have “Houston-style” zoning, which he never actually bothered to define. But many thought that that sounded nice, and such things as definitions were an unnecessary impediment.

What Greenwood and his ilk ignored were the principles underlying zoning. They ignored the fact that sticking adjectives in front of “zoning” does not change its nature, or its consequences. They implied that all that was required was a vaguely stated ideal and the “will of the people”. Somehow, he implied, we will figure it out and make it work.

The advocates of the SmartCode, New Urbanism, and other variants of "form-based code" make the same mistake. They readily acknowledge that Euclidean zoning has failed. It is too rigid and inflexible, it has created “sprawl”, it has fostered dependency on the automobile. But rather than question their basic premises, they attempt to tweak and modify their means for achieving the unachievable. Rather than identify the principles that underlie zoning—as well as the SmartCode and New Urbanism—they proclaim that their plan is different.

Superficially, they are right—they seek higher density, mixed-use developments in contrast to the segregated land-use policies of zoning. Rather than the rigid city-wide tyranny of zoning, they propose dozens (or hundreds) of “flexible” tyrannies within a city, each being guided by the “will of the people” residing in a particular area.

In principle there is no difference between zoning and the more recent “alternatives”. Each seeks to impose a Platonic ideal through government force. Each allows non-owners of a particular parcel of property a voice in its use. Each violates the moral rights of land owners.

Interestingly, many advocates of the SmartCode claim to also be advocates of the free market. How is it that alleged advocates of the free market can endorse ideas that require government coercion for their implementation?

The answer lies in Pragmatism. They are unable to see any connection between zoning and their proposals. They see some element that resemble the free market—all I can find is de-centralized control of land-use—and regard that as the equivalent of a truly free market. But stripped of incidental details, the SmartCode is nothing more than government regulation of land-use.

Euclidean zoning has failed because it must. A is A. The very nature of zoning is a violation of individual rights. Zoning compels individuals to use their property differently than they would voluntarily choose—it forces them to act contrary to their own rational judgment. The result is market distortions, such as housing bubbles. The result is graft and corruption, as developers and builders attempt to sidestep draconian controls. The result is higher prices for everything, as the arbitrarily lowered supply of land for each use increases the cost of housing and of doing business. The result is the destruction of lives, and with it, the cities that attempt to live a contradiction.

The SmartCode attempts to overcome these problems, not by renouncing force, but by using force in a different manner. Rather than prohibit commercial establishments in residential areas, the SmartCode will require it. However, the height, setback, landscaping, “public realm”, and other details will be dictated by government. Like zoning, the SmartCode will prohibit the land owner from using his property as he chooses. Like zoning, the SmartCode will impose additional costs upon the property owner. Like zoning, the SmartCode violates property rights.

But the “free market” advocates of the SmartCode do not see it that way. They see details that differ and believe that their proposal is different. They have different ends (though only superficially) and believe that their proposal is different. They see differences, and ignore the nature and essence of those differences. My cats are different in size, color, personality, and in many other ways, but they are still cats. Land-use regulations are land-use regulations, whether they are called zoning, or the SmartCode, or New Urbanism.

In the end, the SmartCode and New Urbanism must also fail. They must do so for the same reasons that zoning fails. And that becomes very clear if one thinks in principles.

Tomorrow I will examine the only real alternative to zoning—true freedom in land use.

Plato's War on Houston: From Zoning to "SmartCode", Part 2

There are two different kinds of subjectivism, distinguished by their answers to the question: whose consciousness creates reality? Kant rejected the older of these two, which was the view that each man’s feelings create a private universe for him. Instead, Kant ushered in the era of social subjectivism—the view that it is not the consciousness of individuals, but of groups, that creates reality. Leonard Peikoff, The Ominous Parallels

The German philosopher Immanuel Kant breathed new life into Platonism. However, Kant put a twist on Platonism and held that the world we perceive is a creation of the “collective consciousness”. All that is required to achieve some goal is for the collective--such as a race, a city, or a nation--to believe it. In current parlance, all we need is hope--reality will mold itself to our desires.

This was the view held by Houston's zoning advocates in the 1990s. Today it is held by Peter Brown in his calls for a "common vision”, by the advocates of the SmartCode, and by the New Urbanism movement. Each embraces a Platonic ideal, to be determined by a consensus (they only differ in the size and constituents of the participating group) and implemented through government regulations and control.

In the 1990s Jim Greenwood, the leader of the pro-zoning movement, promised that he would develop a consensus on zoning. Then-mayor Kathy Whitmire supported zoning, telling the Chronicle:

That consensus reflects the will of the people in this community. I have certainly heard from a lot of neighborhood groups about the need for protection.

Both Whitmire and Greenwood dismissed the principles that underlie zoning, implying that the "will of the people" would somehow allow Houston to avoid the destructive consequences experienced in cities with zoning. In other words, if enough of us put our mind to it, then reality would somehow conform to our desires. Today, Peter Brown agrees, previously stating on his web site that he would:

Update Houston’s planning and development standards; adopt a comprehensive plan to realize our shared VISION for the future and to shape the quality growth our citizens want.

The problem with other cities, Brown, Whitmire, and Greenwood would like us to believe, is that the citizens there were not united in their vision for the future. That dissension undermined the collective will. In other words, zoning (or “planning”, as Brown calls it) hasn't worked in other cities because the people didn't believe strongly enough.

Some have realized that a city-wide consensus is impossible to achieve. Land-use regulations applied uniformly throughout a city are too rigid and do not account for the various opinions of citizens. To overcome this, the advocates of the SmartCode seek to shrink the size of the group involved:

The SmartCode enables the implementation of a community’s vision by coding the specific outcomes desired in particular places. It allows for distinctly different approaches in different areas within the community, unlike a one-size-fits-all conventional code. To this end, it is meant to be locally customized by professional planners, architects, and attorneys.

In other words, rather than struggle to get all of Houston to agree, what we really need to do is to get the citizens in a neighborhood to agree. Each neighborhood can create its own Platonic ideal and then force it upon recalcitrant neighbors.

Some might argue that this is simply democracy in action, that the “will of the people” should reign supreme. Such claims ignore the fact that America was founded as a constitutional republic, not a democracy. A democracy means unlimited majority rule—the majority may do as it pleases because it is the majority. But rain dances will not coax water from the sky, no matter how many participate in such mystical endeavors. The fact that the majority believes something to be right and proper does not make it so.

The advocates of consensus, “common vision”, and all of its variants believe that the collective can and should establish an ideal for the city. And when the voluntary actions of individuals fail to achieve that result, government must use regulations to achieve the desired state. Ignoring the obvious failures of past attempts to create their fictitious Utopia, they march forward with their banner of civic pride. But they do not know their destination, for they have abandoned the only tool that allows them to project the future—thinking in principles.

Tomorrow, we will meet the man who taught them that principles are useless, that what worked yesterday won’t necessarily work today, that our only concern should be the expediency of the moment.

Plato's War on Houston: From Zoning to "SmartCode", Part 1

That is what I mean when I say that “right” is the same thing in all states, namely the interest of the established government; and government is the strongest element in each state, and so if we argue correctly we see that “right” is always the same, the interest of the stronger party…

To be really precise one must say that the ruler, in so far as he is a ruler, makes no mistake, and so infallibly enacts that which is best for himself, which his subjects must perform. Plato, The Republic

The Greek philosopher Plato died more than 2,300 years ago, yet he is waging war on Houston today. His ideas live on, made manifest in the myriad proposals to shape the city through government regulation and controls.

Plato held that this world is an imperfect reflection of true reality, that knowledge of that reality is available only to a select group of elitist intellectuals, and those intellectuals must rule over society for the good of all. We see Platonism reflected in past calls for zoning, Peter Brown's proposals for planning, suggestions that Houston implement the "SmartCode", and the entire "New Urbanism" movement. Each embraces the fundamental ideas of Plato.

Plato began by postulating an ideal that exists in another realm and decrying the imperfection of this world. In the language of the advocates of land-use regulations, the ideal consists of segregating land-use (traditional zoning), or pedestrian friendly, multi-use developments (New Urbanism), or a mixture of the natural and the man-made via "transects" (SmartCode). And like Plato, they advocate government coercion when their ideal does not materialize in the world we inhabit.

During the Progressive Era, segregating land-uses to prevent "incompatible" land-use was regarded as the ideal. The result was Euclidean zoning, which has subsequently been demonstrated to be devastatingly destructive. Fortunately, Houstonians have rejected zoning on three separate occasions. Not to be deterred, the Platonists went back to the drawing board.

Today, the ideal takes a different shape and form. Decrying urban "sprawl", the decay of the inner city, and dependency on the automobile, their ideal now consists of denser, multi-use developments that are pedestrian friendly and tied to mass transit. In other words, the ideal of 100 years ago is no longer an ideal. But while their ends may have changed, their means remain the same--government coercion, regulations, and controls.

There is nothing necessarily wrong with seeking to improve the world in which we live. Indeed, that is a part of my motivation for writing this blog. But the ends to not justify the means. A better world will not, and cannot, be achieved through tyrannical means.

In this context, the error of the Platonists is that they divorce their ideal from reality. They posit a world that fails to account for or recognize that individuals desire different things in life, that the things they--the Platonists--value may not be shared by all Houstonians. Yet they seek to impose those values upon the entire city through government mandates.

This Platonic ideal rests largely on a homogeneous view of mankind. It assumes that the values of some are in the best interest of the entire society. The “enlightened” few believe it their duty to spread their wisdom through the coercive power of government. And those malcontents who hold different values and refuse to go along should properly be compelled to put aside their "selfish" desires. In short, the individual is to be subservient to the demands and decrees of "society". In this view, society—the “will of the people”—is the supreme ruler, and the individual is obligated to obey.

To a significant measure, Houston has rejected this view. City government has refrained from enacting many of the draconian restrictions and regulations found in other cities. City government has more consistently recognized the property rights of individuals. But in recent decades this has changed—in the past thirty years city council has enacted ordinance after ordinance that restricts individual freedom. And all of it has been done in the name of some ideal—such as “quality of life”.

But this ideal remains elusive, for it is divorced from our world. This however, has not stopped the Platonists from seeking government power to impose their views and values upon all of Houston. And their efforts put them at war with every Houstonian who values his freedom.

Plato is the Commander-in-Chief in the war on Houston. But he has numerous generals. Over the next two days, I will introduce two of them. Their ideas too, live on.

Lies, Misrepresentations, and Scare Tactics

During the debate over zoning in Houston in the early 1990s I sponsored a booth at a convention on Houston development. Among the literature we distributed was a pamphlet that described how zoning operates in other cities. One of the leading proponents of zoning picked up one of our pamphlets and began reading it as he walked away. He quickly returned, accusing my organization of spreading lies.

The pamphlet had stated that under zoning all land-use in the city would fall under the control and dictates of the zoning board. This zoning advocate was irate--the proposed zoning ordinance did not call for a zoning board. Instead, land-use decisions would be decided by city council. Because we had mislabeled the political entity that would have dictatorial powers over land use in Houston, our entire argument was regarded as a lie.

In the aftermath of the referendum on that zoning proposal, its advocates cried foul. Opponents, they argued, resorted to lies, misrepresentations, and scare tactics because, among other things, we pointed to examples of corruption, racism, and economic decline associated with zoning in other cities. That would not happen in Houston, they insisted, because our fair city would have "Houston-style" zoning, and therefore, my arguments were invalid.

This same attitude is now being exhibited by proponents of ObamaCare. Claims that the proposed health care reform will result in "death panels", drive private insurers out of business, and lead to rationing are dismissed with angry cries of lies, misrepresentations, and scare tactics.

When I heard these claims in regard to zoning, I concluded that zoning proponents were simply sore losers who were blinded by their power lust. And while I still think that there is some truth in this, the real cause is much deeper and more profound. The real cause is pragmatism, which holds that

there is no such thing as an objective reality, men’s metaphysical choice is whether the selfish, dictatorial whims of an individual or the democratic whims of a collective are to shape that plastic goo which the ignorant call “reality,” therefore this school decided that objectivity consists of collective subjectivism—that knowledge is to be gained by means of public polls among special elites of “competent investigators” who can “predict and control” reality—that whatever people wish to be true, is true, whatever people wish to exist, does exist, and anyone who holds any firm convictions of his own is an arbitrary, mystic dogmatist, since reality is indeterminate and people determine its actual nature. [emphasis added]

This is the cause and source of the anger directed at anyone who asserts his own independent judgment. How dare anyone be so naive and arrogant as to believe that his own judgment is superior to the mob. How dare anyone have the audacity to reach a conclusion without consulting the latest opinion polls. How dare anyone think for himself.

On every level, an independent thinker is a slap in the face of the pragmatist. The independent thinker asserts that reality is objective, not a creation of the "collective consciousness". The independent thinker asserts that he can learn the facts of reality, and need not consult the mob to do so. The independent thinker asserts his moral right to live for his own sake, rather than sacrifice his life to the demands of the group. Both physically and intellectually, the independent thinker asserts his sovereignty. Such an assertion denies everything the pragmatist believes about the world and himself. Having surrendered his own mind to the collective, he loathes anyone who has not done likewise.

Zoning proponents conducted hearing after hearing, soliciting the input of the public in order to build a consensus. They posed as saviors of the city, promising a glorious future of economic growth, "protected" neighborhoods, and an improved "quality of life". But a recalcitrant few disputed the consensus, denied their claims, and stood on principle. We were attacked as liars and fear mongers, just as the opponents of ObamaCare are attacked today.

Pragmatism blinds the statist to the consequences of his actions. (Not that he really cares, because intentions are all that really matter.) We cannot discuss how zoning operates in Detroit, or Miami, or New York City, because they aren't Houston. We cannot predict how zoning will play out in Houston--nobody can predict the future. We cannot state with certainty that Houston will experience the horrors that plague other cities with zoning. These are all based on theory, and to the pragmatist, all that matters is the specific, concrete issue of the moment.

To the pragmatic proponents of zoning, a claim that the zoning board would control land-use is a lie. A claim that zoning is used as a political tool is a misrepresentation. A claim that zoning increases the cost of housing is a scare tactic. They could not, and cannot, refute the factual evidence that damns zoning (and ObamaCare), and so they resort to the tactics of child. That anyone takes them seriously is what is truly scary.

Urban Legends: Myths About Houston

In a recent posting titled "Is Houston really Unplanned?" on Market Urbanism, Stephen Smith attempts to debunk alleged myths about Houston and planning. In the process, he actually engages in a much more widespread error--the failure to essentialize. (Here is a good explanation of essentializing.)

Smith cites several examples of land use regulations in Houston, such as minimum lot size mandates and regulations dictating parking requirements for new development. He argues that these regulations, along with the city's enforcement of deed restrictions, refute claims that Houston has developed primarily on the basis of free market principles.

Smith's position is common. Zoning advocates actually used similar arguments in the early 1990's. Zoning advocates were wrong then, and Smith is now.

Admittedly, Houston is not devoid of land use regulations. But the nature, number, and scope of those regulations is significantly different from other cities. There is an essential difference between the regulations in Houston and those in other cities. The permitting process in Houston is relatively fast compared to other cities, and the expenses incurred in that process are also significantly lower in Houston. In other words, developers in Houston can respond much more quickly to changes in the market and do not incur exorbitant costs that must be passed on to consumers.

This is not a justification for the regulations that Houston does have. They are wrong and immoral, as are all land use regulations. But the fact is, Houston has far fewer and much less egregious restrictions on freedom than other cities.

Smith, and many others, attempt to paint a picture of Houston land use policies with a very wide, and indiscriminate, brush.

Boosters of Houston’s land use policy – those who believe that Houston’s land use patterns are the free market, revealed – never mention the restrictive minimum lot size and minimum parking requirements. They mention deed restrictions as free market innovations but fail to see how the city’s prosecutors turn private concerns into public budget drains.

If someone defends Houston's relatively free land use policies, pundits such as Smith seem to assume that those advocates defend all of Houston's land use policies. This is akin to believing that if someone likes one of Clint Eastwood's movies, he likes all of Clint Eastwood's movies (and everything else Clint Eastwood does). This is patently absurd.

As an example, Smith cites opposition to a proposed project at 1717 Bissonnet (the Ashby High Rise) as evidence that Houston does not have a laissez-faire policy towards land use. Smith implies that one particular violation of property rights is evidence that Houston is no different from other cities. He evades the fact that the vast majority of development projects proceed with little or no obstruction from the city.

I have defended the Ashby High Rise many times on this blog and at a panel discussion at Rice University. I have defended the project as a matter of principle--land use regulations are wrong and immoral. I have also addressed numerous other violations of property rights on this blog and elsewhere for nearly twenty years. To claim that "[b]oosters of Houston’s land use policy" have ignored the city's violations of property rights is simply untrue. It may be true of some, but not of all. Smith chose to put all of us in the same boat with a broad generalization that flies in the face of the facts.

The fact is, Houston has fewer land use restrictions than other cities. Those that do exist are less restrictive (in general) than the restrictions in other cities. Those that do exist are less destructive than the restrictions in other cities. Again, the restrictions that do exist are indefensible.

Smith's argument amounts to: Either Houston is completely laissez-faire or it is just like every other city. This ignores the degree of the transgression. This equates a pickpocket with a murderer. Both have violated the rights of another. Both have engaged in evil, but on a much different scale. To equate the two is to diminish the murderer's evil. To equate Houston with cities that erect mountainous obstacles to development is to diminish Houston's greatness.

But painting with a wide brush is not the only error that Smith makes. He questions the validity of contracts:

Another form of planning that Houston has, which is celebrated by the self-titled Antiplanner, is the institution of supposedly voluntary deed restrictions, or private land use covenants agreed upon by the owners of the property under restriction. I’m personally torn over the “libertarianness” of such schemes – are they truly voluntary? Can an individual owner of a property opt out of them once they’ve been signed? What’s the statute of limitations? One thing that makes me suspect that they perhaps aren’t as “free market” as they seem is that though the contracts are between individuals, Houston’s city code allows the city attorney to prosecute these lawsuits at no cost to the supposed victims – fellow property-owners.

Consider Smith's own question-- "Can an individual owner of a property opt out of them once they’ve been signed?" In other words, after a contract has been signed, can one party unilaterally breach that contract? This is nothing more than a desire to invalidate the very concept of contracts. If one party can unilaterally breach a contract, contracts--all contracts--are rendered meaningless.

A contract is an agreement to engage in certain actions over a period of time. If one party can unilaterally breach that contract--that is, declare the agreement void--the contract isn't even worth the paper it is written on.


I agree that the city should not be enforcing deed restrictions--that is the responsibility of those who are party to the contract. But this error on the part of the city does not invalidate the fact that Houston remains freer than other cities. Smith fails to distinguish between minor transgressions and major.

A right is a sanction to act according to one's own judgment without seeking permission from others. In this regard, Houston recognizes individual rights more consistently than other cities. This does not mean that Houston is perfect--it means that Houston recognizes individual rights more consistently than other cities. Where Houston does not recognize individual rights, it is wrong.

But Smith--and those who share his position--uses isolated facts to argue his case and then fails to identify the essence of those facts. He implies that all "[b]oosters of Houston’s land use policy" are the same. He implies that the voluntary and contractual planning that accompanies deed restrictions is no different from zoning or other coercive land use regulations. Both of these implications are false.

When one does not think in essentials, disparate facts can seem very similar. On the surface, deed restrictions and zoning might seem the same--both restrict land use. But the former is voluntary and consensual, while the latter is coercive and mandatory. There is an essential difference between the voluntary and the coercive. There is an essential difference between allowing individuals to act on their own judgment and forcing them to act contrary to their judgment. There is an essential difference between Houston and every other major city in the nation.

Teeing Off on Property Rights

It seems to be increasingly rare to open the newspaper and not find a story regarding home owners fighting some proposed development. The latest story comes from Clear Lake, where residents are fighting the proposed development of what was formerly the Clear Lake Golf Club (CLGC). However, in this instance I am going to side with the residents, at least in part.

The company that owns the land, Renaissance Golf Group, has made a habit of purchasing older golf courses and selling the land to developers. I have no problem with such a practice. However, in the case of CLGC, Renaissance is seeking to have the deed restrictions governing the land removed. Those deed restrictions mandate that the land will be used as a golf course or a recreational facility until 2021.

Deed restrictions are a contractual agreement, in which the owner voluntarily agrees to limit the use of his property. Such agreements are common in Houston, and are a valid, non-coercive means for property owners to insure that neighboring properties are used in a manner that they find acceptable. In other words, deed restrictions provide stability in land uses. However, unlike government mandated land use regulations, they are voluntary and based on the consent of those entering the agreement.

In the case of CLGC, Renaissance is seeking to invalidate a legitimate contract. It is seeking to overturn restrictions on the use of the property, even though it accepted those restrictions when it purchased CLGC. This is abhorrent and irresponsible. A person (or business) of character honors his agreements. He does not seek to have them declare invalid when he later finds the terms less desirable. Short of fraud, there is no valid reason for overturning the deed restrictions, or any contract for that matter.

What Renaissance is attempting is essentially theft. They entered into an agreement, as did others, and now they wish to renege on their part of the bargain. Imagine that two hours after you returned from the store, the manager showed up and demanded additional payment. After you engaged in the voluntary transaction, he decided that he didn't like the terms and unilaterally chose to change them. That is basically what Renaissance is trying to do.

The story has an ironic twist. The Clear Lake City Water Authority is seeking to condemn the property and purchase it from Renaissance. Renaissance claims that the price offered is too low, and the case is to be heard this week.

Government seizure of private property is as invalid as seeking to overturn a contract. But in a perverse way, there is a certain sense of justice in this story. Renaissance is getting a taste of its own medicine. It sought to use force to overthrow a contract, and now force is proposed against it. Don't mistake my position, both parties are wrong.

As I recently wrote, this would be a non-issue if property rights were understood, respected, and protected. Renaissance would be obligated to honor the deed restrictions, or have them amended according to the provisions contained therein. When property rights are ignored, when might makes right, we witness events such as this.

Another Sign of Ike

Ike's winds did more than knock down trees and power lines. It also damaged hundreds of outdoor signs. According to an article in the Houston Chronicle:

For billboards, the city ordinance says that if the cost of repairing the weather damage is more than 60 percent of the cost of erecting a new sign, the billboard comes down. For business signs grandfathered at sizes larger or taller than what is now allowed, the rule is similar — those signs most be rebuilt smaller and conforming if the damage repair would cost more than 60 percent of the cost of building a new sign.

The anti-sign movement, led by Scenic Houston, seeks to rid the city of billboards and similar "clutter". From their web site:

Scenic Houston works to reduce existing billboard blight, prevent new billboard construction, foster attractive on-premise signage, incorporate context sensitive design in the planning of highways and other public projects, and protect the natural beauty and distinctive character of our communities for the benefit of successive generations.

As with many other groups, they don't like something and seek to use government coercion to impose their likes and dislikes on the rest of the city. The rights and preferences of the property owner are swept away like storm surge.

As is often the case with these mini-tyrants, patience has been their ally. The anti-billboard movement has been active in Houston since 1966. It has slowly but consistently pushed for ever tougher restrictions on outdoor signs. Each time they propose tougher restrictions they are willing to compromise, because each compromise moves them closer to their ultimate goal.

The sign industry has opposed these restrictions, but continues to compromise itself out of existence. For example, when it was proposed that downtown Houston be designated a scenic district and therefore off limits to billboards, according to the Houston Business Journal the sign industry did not complain:

Representatives of Clear Channel Communications Inc., which dominates nearly 80 percent of the local outdoor advertising market, say they aren't against creation of the downtown district.

The reason, however, has more to do with simple economics than ethical considerations. Historically, they say, downtown billboards haven't proven that profitable or effective.

So they abandon the moral high ground-- that is, their right to conduct business without intervention from the government-- simply because downtown isn't a profitable location for signs. What if that were to change? And how will they respond when an area that is profitable is targeted to be designated as a scenic district?

Most likely they will try to make an economic argument. But having surrendered the moral high ground, having refused to defend their rights in the past, such arguments will hold little power. They will be accused of being greedy, of being interested in nothing more than "the almighty dollar", or something similar. And all they will have as a response is the number of jobs that billboards create.

For too long Houston businesses have refused to defend their rights. For too long they have willingly sacrificed their values to those of some noisy gang. For too long they have attempted to compromise themselves out of controversy. In the end, they will have no rights, and thus be unable to pursue their values. They are compromising themselves out of existence.

If Houston businesses, and the outdoor sign industry in particular, wishes to have a future, they must begin defending themselves on a moral basis. They must assert their right to live free from the dictates of others. They must declare their right pursue their values. They must reject the premise that their businesses, their values, and their lives can be sacrificed. Then and only then, will their future be secure.

For more on the Houston sign ordinance, and a brief history of property rights issues in Houston, see my article in The Freeman, published in 1990.

Galt’s Gulch

In the novel Atlas Shrugged, each summer the heroes of the story retreat to a secluded valley. This valley, called Galt’s Gulch, is a bastion of individual freedom, rational thinking, and respect for the rights of each individual. It provides the heroes with a respite from the increasing controls on individual freedom being enacted by the government.

While Galt’s Gulch is fictional, the principles embraced by the community are not. Those principles are eloquently captured in the oath taken by each individual entering the community:

I swear, by my life and my love of it, that I will never live for the sake of another man, nor ask another man to live for mine.

The extent to which a community understands, accepts, and practices this principle is the extent to which that community thrives economically. The extent to which a community recognizes the moral foundation for individual freedom is the extent to which the individuals in that community prosper.

In the Declaration of Independence our Founding Fathers recognized the essence of this principle when they stated that each individual has a right to “life, liberty, and the pursuit of happiness.” The Founders recognized the fact that each individual has a moral right to his own life, that his life is not a commodity to be disposed of by society. They recognized the fact that each individual has a moral right to be free to pursue his own happiness, so long as he respects the mutual right of others.

In many ways Houston has embraced this principle. Houston has largely embraced the right of individuals to use their property in the pursuit of their values. But the principle has remained unnamed and implicit, and thus Houstonians have accepted numerous restrictions on personal liberty—the sign ordinance, the landscaping ordinance, and regulations on sexually oriented businesses to name a few.

The economic benefits of Houston’s freedom have been widely publicized during 2008. While many areas of the nation suffer from a collapsing housing market and a loss of jobs, Houstonians have continued to enjoy economic growth and prosperity. Our robust economy is the effect; freedom is the cause.

Because the principle has remained unnamed, Houstonians are vulnerable to continued assaults on their personal liberty. Those who seek greater control over our lives systematically target seemingly isolated issues, proposing new restrictions to control some “undesirable” land use, such as the Ashby High Rise, Magnolia Glen, or development around airports.

However, these are not isolated issues. In each instance the proposed restrictions require some individuals to sacrifice their values for the alleged benefit of the community. In each instance some individuals are forced to live for the sake of others.

So long as the principle remains unnamed Houstonians will continue to accept restrictions on personal liberty as “practical”. They will continue to advocate personal freedom while simultaneously accepting its infringement.

It is time for the principle to be declared openly, proudly, and without equivocation. Each individual has a moral right to the freedom necessary to sustain and enjoy his life. No individual has a moral right to force others to provide for his sustenance or enjoyment. And it is the responsibility of our government to protect this right.

Throughout the economic turmoil of 2008 Houston has set a shining example to the world. Houston has prospered because it has rejected the restrictive policies of other cities.

If we wish to continue and expand our prosperity, we must become a real-life Galt’s Gulch. We must refuse to live for the sake of others. We must refuse to force others to live for our sake. When we can do that, completely and consistently, our future will be secure. The glory of human freedom will be ours.

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

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

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

The Cost of Freedom

For more than 60 years proponents of zoning have attempted to push their agenda on the citizens of Houston. In response, those who value their freedom and their property rights have been forced to spend their own money to defend what is rightfully theirs.

On the surface this may seem like it is just a part of the democratic process. However, like many issues revolving around zoning and land use restrictions, the truth is considerably different.

Consider, for example, that proposals to expand government power are invariably supported by government officials. Their support is not promulgated as private citizens, but as public officials. They spend their working hours and our tax dollars, promoting these plans.

This means that those who oppose a particular proposal, and those who are indifferent, are forced to provide monetary support for a particular cause. This means that an individual who opposes zoning is forced to spend his money to fight zoning, while simultaneously his money is being used to support his enemies.

It is bad enough that honest businessmen must defend their rights. It is a gross injustice when their own money is used against them.

This however, does not stop pro-zoners from attacking those businessmen. For example, after the 1993 referendum, zoning advocates made an issue of the money spend by their opponents. (Herman Lauhoff, in an OpEd article in The Houston Post in November 1994, wrote that anti-zoners outspent zoning proponents in the November 1993 referendum by 3-to-1.1 Similar claims had been made previously by zoning advocate Brandy Wolf, 2 in an editorial in The Houston Post, 3 by Post columnist Tom Kennedy,4 by Chronicle columnist Lori Rodriguez, 5 and others. 6)

The Houston Post reported at the time that anti-zoners spent $500,000. This pales in comparison to the millions spent by the City to develop a zoning plan and promote it. (The budget for the Planning and Zoning Commission in 1992 alone was over $6 million.) Zoning advocates refused to acknowledge that much of the money used to support their cause came from those who oppose it, while zoning opponents were required to raise all of their funds through voluntary contributions.

But this is not a surprise. Zoning advocates seek to use force to impose their ideas and values upon all Houstonians. And they act accordingly—they force their opponents to provide monetary support for their agenda. Those who seek freedom—the right to engage in voluntary exchanges—also act in accordance with their values. They raise their money voluntarily.

In short, pro-zoners sought to expand the power of government, and used government to do so. Their opponents relied on the voluntary choices of individuals, and they were attacked for doing so.

It may be cliché, but those who refuse to learn from history are doomed to repeat. Pro-zoners will change their words, but they won’t change their tactics.

1. Herman Lauhoff, The Houston Post, "City can't stand harm that lack of comprehensive zoning causes," 6 November1994.
2. Karen Weintraub, The Houston Post, "Zoning goes down for 3rd time," 3 November 1993,pA1.
3. "Twilight for Zoning," The Houston Post, November 3, 1993, p26A.
4. Tom Kennedy, The Houston Post, "You go for lies? I got some here," 7 November 1993.
5. Lori Rodriguez, Houston Chronicle, "Can we live with the zoning vote?," 6 November 1993, pA33.
6. Karen Weintraub, The Houston Post, "Zoning opponents outspend backers by 4-to-1," 26 October 1993, pA9.

© J. Brian Phillips 2008

The Government versus Freedom, Part 1

This pamphlet was written in the aftermath of the zoning debate that took place in Houston in the early 1990’s. The ideas remain relevant today. References are listed at the end of part 7.


Over the past fifteen years, Houstonians have witnessed nearly constant attempts to place controls on the use of private property. These efforts have taken many forms -- restrictions on billboards, prohibitions on indoor smoking, the landscaping ordinance, and zoning, to name a few -- and have been led by many different people.

Each of these efforts has been presented as a benevolent means of improving our city. We have been told that our "quality of life" will improve, that our neighborhoods will be protected, that our economy will benefit, that people will be "empowered".

Considered out of context, some of these goals may be desirable. But we cannot consider goals out of context-- we must also consider the cost and the means of obtaining those goals. We must ask whose idea of "quality" will serve as the standard, and what does "empowerment" mean. And will the means advocated attain the desired ends?

As we will see, these movements are united by more than just the desire to place controls on property use. They are based on common principles, principles which are ultimately destructive to all Houstonians.


The Right to Property
A right is a moral principle which defines and sanctions an individual's freedom of action in a social setting.

Rights place boundaries on the actions of others, thereby allowing an individual to act without interference from others. The mutual rights of others prevent him from interfering with their actions.

It is important to understand that rights pertain only to freedom of action. They do not guarantee that one's actions will be successful, nor do they grant one a claim to the results of others actions. Such a claim would in fact violate the rights of those forced to provide those results, and thus negate all rights. Consequently, there is no such thing as the "right" to an education, or health care, or haircuts. There is only the right to be free to earn such values.

(In this regard, consider the precision of the language of the Declaration of Independence. That document states that we have the right to the pursuit of happiness, not a guarantee to happiness, nor a right to demand that others make us happy. The Declaration states that we have the right to be free to act.)

The right to property is the right to earn, use, and dispose of material values. In logic, the right to use and dispose of property, e.g., land, means that the owner may use that property as he chooses, free from the dictates of his neighbors or the government. Ownership means control. However, as with all rights, he may not use his property to violate the mutual rights of others.

To "violate the rights of others" does not mean using your property in a manner which others find objectionable. If such were the case, anyone could claim that he finds your use of your property to be objectionable, and hence, are violating his rights. In such an atmosphere, virtually every Houstonian could make a claim against every other Houstonian. The result would be chaos and the destruction of all rights.

The only way to objectively violate another's rights is through the use of physical force against him and/ or his property. It is only through physical force, e.g., murder, kidnapping, or robbery, that an individual can be deprived of his life, his freedom, or his property, or be compelled to act (or not act) in a particular manner.

In a civilized society, the initiation of force is prohibited. In such a society, individuals are permitted to pursue their values, but may not impose those values upon others. All relationships (both personal and economic) are based on the voluntary consent of every individual involved.

(Retaliatory force, such as arresting suspected criminals, or imprisoning convicted murderers, kidnappers, and thieves, is proper. But such force is properly used only in retaliation, and only against those who initiate its use. Furthermore, law enforcement officials cannot arrest individuals merely on suspicion, but must have evidence to support such suspicion and must act in accordance with objectively defined rules.)

If you send poisonous fumes into your neighbor's back yard, you have violated his rights. If you conduct target practice in a residential neighborhood, you have violated your neighbor's rights. If you keep your neighbor awake by playing loud music all night, you have violated his rights. In each case, you have imposed physical harm (or a very real, and objective threat thereof) upon others.

However, if you open a commercial establishment, or plant certain kinds of trees (or none whatsoever), or erect gargoyle adorned columns in front of your house, you have not violated your neighbor's rights. It does not matter how psychologically offensive he may find such actions, physical harm has not been forced upon him.

An individual's rights do not preclude him from voluntarily agreeing to limit his actions. For example, employers generally establish certain conditions of employment, such as the hours one will work, the type of attire which is acceptable, passing a physical, etc.

In land use, individuals often find it beneficial to agree to certain restrictions on the use of their property. The most common means of doing this is through deed restrictions. Such restrictions are voluntary and contractual, i.e., they are a condition of purchasing a property. The popularity of deed restrictions demonstrates that individuals can work together voluntarily and cooperatively to accomplish mutually beneficial goals, while recognizing and respecting the rights of each individual.

© J. Brian Phillips and Warren S. Ross 2008

The Government versus Freedom, Part 2

This pamphlet was written in the aftermath of the zoning debate that took place in Houston in the early 1990’s. The ideas remain relevant today. References are listed at the end of part 7.

Attacks on Property Rights
In 1980 City Council passed an ordinance which, among other things, limited the size and location of outdoor signs and billboards.

Advocates of the ordinance referred to Houston's abundant sign population as "visual pollution" 1 and "a plague" 2 , thereby implying that the existence of these signs is a threat to one's health. Such an argument is clearly absurd-- Houston's medical facilities have yet to report a single case of billboard related illness or death.

The purpose of the ordinance was to reduce the number of-- and eventually eliminate-- billboards in Houston. The justification was not that the billboards violated anyone's rights, but that billboards "clutter" the landscape, i.e., they are "unpleasant" to look at.

In other words, some Houstonians, as well as a majority of City Council members, found billboards objectionable, and passed a law aimed at their abolition. Which means, the city initiated force against the owners of those signs, as well as the owners of the property upon which they are erected. Rather than protect the rights of its citizens, the city became a violator of those rights.

It should be noted that those who find billboards objectionable have legitimate means for implementing their values without infringing on the rights of others. For example, such individuals can choose a route for their travels which does not include billboards (such as the beltway); they can live in a planned community in which billboards are prohibited; or they can purchase the billboards from their owners and tear them down.

In the early 1990's City Council passed an ordinance which requires developers to plant a specific number and type of shrubs and trees in their projects. The purpose of the ordinance was to promote a better "quality of life". The justification was not that developers had violated anyone's rights by planting Chinese tallows, but that some Houstonians regarded such trees as "trash".3

In other words, some Houstonians, as well as the majority of City Council, found certain kinds of plants objectionable, and passed a law to compel developers to plant different species. Again, the city initiated force against its citizens.

More recently, City Council has debated an ordinance which would place restrictions on "historic buildings". The purpose of this law is to prohibit the demolition of older buildings. The justification for this ordinance was not that the owners of such buildings were violating the rights of any one, but the protection of our heritage.

The most controversial aspect of the proposed ordinance was not the fact that the city intended to violate the rights of property owners, but that the owners would have an opportunity to "opt out" of the "historic" designation.4 In other words, the controversy was not the violation of rights, but the fact that property owners would retain some control over their property.

Each of these ordinances is intended to place restrictions on the use of private property, either through proscription or through prescription. And each of these ordinances is intended to promote some "public good", such as a better "quality of life", or protect our "heritage", etc. (The same holds true of many other ordinances not addressed here, such as the sexually-oriented business ordinances and smoking ordinances). These similarities in practice are the result of the similarities in theory, i.e., the principles which underlie each of these assaults on property rights.

Underlying each of these ordinances are two principles -- collectivism and sacrifice.5

The proponents of each of these ordinances argued that the welfare of some group, such as the city or the community or our neighborhoods, required the proposed restrictions on the rights of individuals. In other words, the welfare of the group superseded the welfare of any individual. This is the doctrine of collectivism-- individuals are to be subservient to the group.

In practice, this means that the individual may act, not by right, but with the permission of the group. It means that he may use his property only in accordance with the dictates of the group. And since the concept "group" really means just a collection of individuals, subservience to the dictates of the group really means that some individuals may violate the rights of other individuals. To accomplish this, they need only assemble enough like-minded people who are willing to violate the rights of others and convince city officials to enact the appropriate laws.

While many may respond that this is the democratic way, it should be noted that our Founding Fathers did not establish a democracy, but rather a constitutional republic. The American Constitution restricts the powers of government, including the powers of any majority which happens to control the government, not the actions of individuals.

A literal democracy means unlimited majority rule-- that the majority may do as it pleases because it is the majority. In a democracy, individual rights are in principle as non-existent as in a dictatorship. Remember that Socrates was put to death at the hands of the majority of the citizens of ancient Athens, and Adolf Hitler came to power in a democratic Germany.

Morally, collectivism holds that the individual must place the welfare of others above his own. Each of us must do his "fair share" for the "common good". Those who refuse to do so "voluntarily" are regarded as "selfish", "rugged individualists", etc. and may properly be forced to sacrifice their values. These two principles-- collectivism and sacrifice-- serve as the justification for all of the attacks on property rights, past, present, and future. The particular form and emphasis of the arguments may change, but the principles which underlie them do not.
The same holds true of the most comprehensive attack on property rights-- zoning.

© J. Brian Phillips and Warren S. Ross 2008

The Government versus Freedom, Part 3

This pamphlet was written in the aftermath of the zoning debate that took place in Houston in the early 1990’s. The ideas remain relevant today. References are listed at the end of part 7.

The Nature of Zoning
The purpose of zoning, and its sole reason for existing, is to give government control over the use of all land within the community. While the rightful owner remains responsible for that property, the government will determine how that property is used. Under zoning, individuals may use their property only for the purpose dictated by law, and violators are subject to fines and/ or imprisonment.

Under zoning, a property owner may use his property, not by right, but by permission. Yet ownership without control is a fraud. Under zoning, land ownership is nothing more than nominal ownership.

Zoning officials may zone a parcel of land for any purpose they choose-- industrial, retail, residential, etc., using criteria they establish and may change at any time. Or they may prohibit any land use whatsoever in a given area. 6

Zoning officials may attach any conditions they choose to a building permit. A builder might be required to install "public art", or "donate" land to the government, or repair city facilities. A builder might be required to "contribute" money to an official's favorite social cause. 7

Zoning officials not only have the power to zone an area for a particular use, such as single-family homes, they also have the power to define what constitutes that use, such as defining the term "family" to exclude students, gays, minorities, or other "undesirable" people. 8

Zoning officials thus have complete reign over every aspect of land use. They may impose their interpretation of what is right and proper upon the individuals in a community, whether or not those individuals share the values thus coercively imposed.

By imposing "community standards" upon individuals, zoning forces individuals to sacrifice their values to the group. Zoning is thus an assault on the freedom of every productive citizen. It limits one's choices as both an employee/ businessman, and as a consumer. This remains true regardless of the adjectives placed before zoning, e.g., "Houston-style" zoning, and neighborhood zoning. While the details of implementation may differ, the principles underlying these variations do not.

© J. Brian Phillips and Warren S. Ross 2008

The Government versus Freedom, Part 4

This pamphlet was written in the aftermath of the zoning debate that took place in Houston in the early 1990’s. The ideas remain relevant today. References are listed at the end of part 7.

Undefined Bromides
During the debate over zoning in the early 1990's, and in the time since the referendum in 1993, zoning proponents have made many claims about zoning. They have claimed that zoning will "empower the people"9, that it will be founded on a consensus. They have claimed that we will avoid the corruption and divisiveness experienced in other cities with a "unique, Houston-style"10 form of zoning, that zoning will improve our "quality of life".11

In cities with zoning, in an attempt to be "democratic", zoning officials regularly hold hearings for citizens to express their views regarding land use. These hearings become a magnet for special interest groups eager to push their own particular cause. The result is a steady parade of noisy gangs, each declaring that it represents "the public" and demanding that its views be implemented. One might insist on Spanish architecture, while another wants to limit the size of buildings. One might want more park space, while another wants the project canceled entirely. While each group differs on what or how they wish to control the use of another's property, they agree that they should have a voice in how that property is used.

But we do not need to rely solely on the experiences of other cities to see what occurs under zoning.

During the debate over zoning, Houston's city officials held dozens of hearings to solicit input from citizens. They sought to be "democratic", to develop a consensus-- i.e., "common vision"-- as the zoning maps were developed. However, as the details of those maps became known, residents and business owners in Southgate, Afton Oaks, Montrose, and other neighborhoods routinely made headlines as they protested zoning designations. 12

While zoning advocates promised a consensus, what resulted was the divisiveness inherent in zoning. Neighbors fought neighbors over the use of land which neither, or only one, owned. This is what "empowering the people" means: It grants non-owners of a parcel of property a voice in its use. At the same time, the rightful owner is a hostage to the demands, desires, and decisions of others. He is forced to conform to the demands of the group; he is forced to sacrifice his values to others.

Further, on three separate occasions voters have rejected zoning. Yet, zoning proponents refuse to accept these results, each time returning with a new proposal to violate property rights. If zoning advocates truly wish to empower the people, why do they continue to refuse to accept the outcome of the electoral process?

True empowerment comes from freedom, not political influence. True empowerment comes from the right to pursue one's own values, not the power to impose those values upon others.

Zoning advocates have claimed that zoning will improve our "quality of life", but they have not told us what they mean by that term. They assume that we know, and agree to, its meaning.

"Quality of life" is a matter of individual values. Each of us has different goals and different aspirations, we seek different things in life. Some Houstonians prefer a picnic in the park; others prefer dining in elegant restaurants. Some Houstonians enjoy attending movies; others enjoy shopping. These preferences are based on an individual's values.

Similarly, in land use, our individual values determine the type of use we choose for our property, the style of architecture, etc. Under zoning, an individual's values are to be subservient to the group. Under zoning, individuals are no longer permitted to make such decisions, but are forced to obey the demands of the group.

Under zoning, all individuals are compelled to accept the "quality of life" dictated by zoning officials.

If city officials are truly concerned about improving our quality of life, they should be protecting our freedom, i.e., our property rights. They should allow the free market to raise the standard of living, by removing the arbitrary restrictions of land use controls. The result will be greater variety and lower costs in housing. 13

Zoning advocates have argued that Houston's neighborhoods are in danger, that a lack of zoning will result in "unstable" land uses. But they have not told us whose view of stability will prevail. Nor have they explained why the desires of the non-owners of property should take precedence over the desires of the property's owner.

Zoning advocates have argued that the actions of one property owner often have an adverse affect on neighboring property owners. Zoning will help to bring stability to land use.14 It should be remembered that the purchase of property, including a home, is at least partially an investment.

As with all investments, the actions of others can have an effect on the value of that investment, for better or for worse. Anyone who has tried to sell a house near neighbors with trashy front yards or unconventional paint colors knows the effect it has on his investment. While it is natural that people want to protect their investment, a civilized person will do so by agreement and contract. An uncivilized person, who does not care about the difference between persuasion and coercion, might try to do so by force or government regulation. Those who seek to use zoning to protect the values of their investment are seeking to gain economic security in exchange for economic liberty, which will ultimately result in neither.

© J. Brian Phillips and Warren S. Ross 2008

The Government versus Freedom, Part 5

This pamphlet was written in the aftermath of the zoning debate that took place in Houston in the early 1990’s. The ideas remain relevant today. References are listed at the end of part 7.

Lies, Misrepresentations, and Scare Tactics
In the months since the November 1993 zoning referendum, zoning advocates have launched a number of accusations against their opponents. Zoning opponents, pro-zoners said, were dishonest and unprincipled.

They resorted to lies, misrepresentations and scare tactics to win the election. They bought votes with advertising.

First, it should be noted that zoning opponents are not monolithic. For example, one organization argued that "Zoning without a plan is worse than no zoning at all."15 This group argued for even more comprehensive government regulation than the proposed ordinance called for and therefore rejects everything we stand for. We regard such organizations as opponents on the issue of property rights. Consequently, zoning advocates cannot paint their opponents with a wide brush. While we agree that zoning is economically impractical, as many other zoning opponents have argued, we oppose zoning primarily on moral grounds.

When zoning opponents claimed that zoning could be used to segregate minorities and other "undesirables", zoning proponents cried foul. Yet, in Mt. Laurel, New Jersey, zoning was systematically used during the late 1970s and early 1980s to drive the town's small black population out of the community. 16

National surveys regularly find that housing in Houston is among the nation's most affordable.17 While many factors influence the cost of housing, one of the most significant is zoning. In the early 1980's, the Department of Housing and Urban Development studied the costs zoning and building codes impose on housing. The survey involved development projects in three locales: Shreveport, LA; Hayward, CA; and Allegheny County, PA.

The findings were dramatic. In Shreveport, government regulations accounted for 21% of the project cost. In Allegheny County, an additional 24% was added, and in Hayward, the cost increased 33%. The survey found that the primary reason for the additional costs were delays imposed by the various approval processes required by law.

These approval processes require developers to seek government permission to begin a project. Which means, before an individual may use his property as he chooses, he must secure the approval of government bureaucrats.

Under zoning, the developer has no option but to patiently seek the zoning officials' approval and meet their conditions. These conditions can range from playgrounds to senior citizen centers to "public art".18 The costs incurred by the developer-- such as maintaining equipment and inventory, servicing the debt on undeveloped land, legal and permit fees, and the costs associated with the zoning officials' conditions-- are ultimately passed on to consumers.

The government study cited above is not the only evidence that zoning increases the cost of housing.
Phil Rafton, a developer in Southern California, estimates that he could reduce costs by 30% without zoning.19 Former HUD Secretary Jack Kemp regularly used a flow chart to show how regulations add $40,000 to the cost of a new home in Orange County, California.

An article in the May 9, 1989 issue of The Wall Street Journal addressed the issue of high housing costs. Less regulation, the article stated, leads to lower housing costs. In North Carolina, for example, a developer can build a 4-bedroom house for $95,000 after a 3 to 4 month approval process. In New Jersey, the same home would cost $230,000 and be delayed by an average of 3 years. While other factors contribute to the higher costs in New Jersey, the bureaucratic delays and regulatory requirements are a major reason for the dramatic difference.

The costs of zoning are not always computable in dollars and cents. In 1983 a New Jersey developer began planning a 3,300 unit condominium. The units would sell for $130,000, a price which 35% of the area's families could afford. Bureaucratic barriers delayed the project for six years, increasing the price to $240,000 per unit, a price which only 18% of families could afford. Which means, government regulations virtually halved the affordability of this housing.

By imposing additional costs on developers (and hence consumers), zoning makes housing less affordable. Those most affected by this reduced affordability are the poor, the middle-class, and first-time buyers. Unfortunately, these individuals seldom realize that zoning is the reason they cannot afford to purchase a home. They are the hidden and voiceless victims of zoning.

Higher housing costs are not limited to single-family homes. The above example shows that zoning also increases the cost of condominiums. Zoning has the same affects on apartment complexes.

Bureaucratic delays, legal and permit fees, "impact fees", etc. increase the costs of developing apartment projects. These costs must eventually be passed on to consumers in the form of higher rents.

Zoning is frequently used to limit the density of apartment complexes. Reduced density means higher costs for the developer, as well as fewer apartments available for renters. We should note that at least one zoning advocate has suggested using zoning to restrict "development densities", i.e., to control the freedom of developers to build apartment complexes. 20

The burdens and costs associated with zoning and other regulations not only increase the cost of housing, but also discourage its creation. Investors often decline projects because of the costs--either real or potential-- they will have to accept.

It is neither a scare tactic nor a lie to take an individual's ideas seriously. The debate over zoning is a serious intellectual issue, which will impact the life of every Houstonian. We have demonstrated that zoning has a specific nature, that specific principles underlie zoning. We have demonstrated that those principles logically lead to the use of governmental force to impose a community's values upon individuals. We have provided examples of these principles in action, in other cities and in Houston.

Zoning advocates have called such arguments and examples lies, misrepresentations, and scare tactics. They have refused to refute our arguments, but instead responded with angry, unsubstantiated assertions.
When confronted with the problems zoning has caused in other cities, pro-zoners respond that those are other cities, and they don't have "Houston-style" zoning. In other words, those problems may be a result of zoning in Miami, Detroit, and Chicago, but that is Miami, Detroit, and Chicago. They don't have "Houston-style" zoning. In other words, zoning advocates believe that there are no principles which underlie zoning.

Any attempt to interject principles into the debate has been met with angry accusations. Zoning advocates believe that it is invalid to use examples from other cities, because Houston will have a "unique" form of zoning.

But there are principles which underlie zoning, and those principles can be used to predict the consequences of "Houston-style" zoning, "neighborhood" zoning, or any of the variations zoning advocates can concoct. Zoning, by its very nature, is a violation of property rights, and destructive to human welfare.

While zoning advocates have responded to principled arguments with accusations of lies and misrepresentations, they have engaged in their own misrepresentations.

Zoning proponents would have us believe that opening a business near a residential area violates the property rights of the residents. They would have us believe that "trash trees" violate the rights of nearby residents. As we have argued, this is false. Zoning advocates are using such alleged rights violations to justify their own proposal to violate property rights-- not on a neighbor-to-neighbor basis, but on a massive city-wide scale. They are proposing to bring harassment to new levels by institutionalizing it in the form of zoning.

To understand this, consider the following quote from a handout from Jim Greenwood's Ad Hoc Task Force on Planning and Zoning titled "Proposed Goals for Planning and Zoning Houston": "Planning and zoning should allow landowners the opportunity to use their land as desired, but with consideration for its impact on the value and quality of life of neighboring areas and the City's comprehensive plan."

Which means, when an individual's desired land use differs from the City's plan, or that land use is determined to have a negative impact (whether real or imagined) on neighboring areas, the individual's desires are to be ignored. Which means, an individual may not in fact, use his land as he desires-- land will be used as the City desires.

Consequently, to claim that zoning permits property owners to use their property as they desire, is not only incorrect, but actually the exact opposite of the truth.

Herman Lauhoff, in an OpEd article in The Houston Post in November 1994, wrote that anti-zoners outspent zoning proponents in the November 1993 referendum by 3-to-1.21 Similar claims had been made previously by zoning advocate Brandy Wolf, 22 in an editorial in The Houston Post, 23 by Post columnist Tom Kennedy,24 by Chronicle columnist Lori Rodriguez, 25 and others.

Each of these individuals has conveniently ignored the tens of thousands of dollars spent by the city to conduct zoning hearings and workshops, to print literature, to draw zoning maps, etc. The budget for the Planning and Zoning Commission in 1992 alone was over $6 million.

City officials were not neutral on the issue of zoning-- they overwhelmingly favored it. Their efforts to "educate" the public were entirely one-sided. Which means, every dollar spent by the city was in effect a dollar spent in favor of zoning. Furthermore, the money spent by the city came from the taxes of all Houstonians, including those who were opposed to zoning and those indifferent on the subject.

The fact is, the approximately $500,000 which The Houston Post reported spent by zoning opponents in the 1993 campaign pales in comparison to the money spent by zoning advocates.26 The actual amount is impossible to determine because the entire process was woven into the fabric of government. Zoning advocates refuse to acknowledge that much of the money used to support their cause came from those who oppose it, while zoning opponents were required to raise all of their funds through voluntary contributions.

If zoning advocates are so principled to decry "lying and scare tactics," they should have the integrity to pay for their own campaigns. Instead, they have forced voters to provide financial support, voters who have consistently rejected them.

Furthermore, the entire discussion of how much money was spent to oppose zoning is based on the false premise that spending money to defend one's rights is immoral. Those who are the victims and potential victims of government regulations have every right, in fact a moral obligation, to defend their values with whatever means they have available. What is immoral is not that they spend that money, but that they are required to do so to protect their freedom. Consequently, such individuals are financially victimized even before zoning is enacted (not only by being required to spend money to defend their rights, but also by having their tax dollars used to support a policy they oppose). Such individuals have a moral right to demand compensation for every penny spent.

Zoning advocates would like us to ignore the horrors of zoning in other cities. They want to prevent principles from entering the debate. They want to ignore facts, while simultaneously calling their opponents dishonest. The truth is, by ignoring the principles which underlie zoning, its advocates have blinded themselves to the destructive consequences of the ideas which they advocate.

© J. Brian Phillips and Warren S. Ross 2008