Pro-Zoners Sing the Same Tune

For decades zoning advocates have promised that the evils of hell would be unleashed upon Houston if we did not adopt comprehensive zoning. The prognosticators have claimed that the city won't attract businesses, that our quality of life will suffer, and Houston would never become a "world-class city". Despite three failed attempts to force zoning down our throats, and the fact that such predictions have proven to be utterly false, zoning advocates haven't changed their tune. They are just changing a few of the lyrics.

Now, the claim is that the city won't attract "information workers", that is, young urbanites who want to live in hip cities. And, according to such hipsters as failed mayoral candidate Peter Brown, Houston ain't hip. What we need, according to the Brownster, is for the city to provide "incentives" to developers to create a more "urbane vision". (HT: Gus Van Horn) Froma Harrop writes:

No one is being forced to do anything, he [Brown] told me. "But if the city is going to pay the piper, we play the tune."

And if a developer doesn't march to that tune, then what happens Mr. Brown? He gets tossed in jail, has his property seized, or both. But I suppose you wouldn't call that force. Just like you have insisted that "planning" isn't really just a code word for zoning.

What the article doesn't tell us is the nature of government "incentives". They generally consist of something like: "We would really like you to do this. Or else." The "or else" means, government officials will make your life a living hell at every opportunity.

Given Houston's success in creating jobs and attracting residents--all based on the voluntary consent of those involved--why do some insist that the city resort to coercive measures such as land-use regulations? Pro-zoners have a ready answer:

"The whole dynamic of what it took to succeed has changed," insists Rice University sociologist Stephen Klineberg.

Early last century, Houston boomed as a terminal for the East Texas Oil Field. "You didn't need education to make money," Klineberg says. Energy remains the big employer, but today it's a knowledge industry -- more about servicing producers around the globe than pumping the nearby crude.

In other words, that was then, this is now. If the city is to continue to succeed, it must get "smart", and to the pro-zoning crowd, "smart" means government controls. The uneducated entrepreneurs and visionaries who turned a swamp into the energy capital of the world were simply lucky.

Despite Klineberg's arrogant claims, what it takes for a city (or a nation) to succeed hasn't changed. Houston's relative freedom, particularly in land use, has allowed individuals to act according to their own judgment, even when others refused to see their vision. For Houston to continue to succeed, it must rediscover the principles of freedom. It must reject the siren song of the pro-zoners.

The Failure of Practical Arguments

Demographia's latest report on housing affordability again places Houston among the most affordable large cities in the world. (HT: Joe Reed) The report states:

Prescriptive land use regulation policies (principally compact development and urban
consolidation) have virtually destroyed housing affordability in many markets. (page 6)

Not surprisingly, prescriptive land use policies, such as zoning and "smart growth", are present where housing is less affordable. Cities with fewer land use policies, such as Houston, are more affordable. This is true across the globe.

While the connection between housing affordability and land use policies has been clear for decades, it hasn't stopped politicians, urban planners, and assorted activists from pushing for more controls and dictates. The practical benefits of freedom in land use, clearly evident in Houston, fails to convince statists. Despite all of their rhetoric about "quality of life", they are unmoved by evidence that freedom allows individual human beings to enjoy a higher quality of life.

In one sense, the reason is quite simple: They don't care about the individual. If one examines any argument for land use controls, it seldom takes long to find appeals to the welfare of the neighborhood, or the community, or some other collective. Underlying these appeals is the unquestioned assumption that the individual must sacrifice his own well-being to the collective. Thus, evidence that housing is more affordable to individuals is dismissed--the alleged "common good" or "public welfare" supersedes that of the individual.

While there is certainly value in reports such as those put out by Demographia, the practical benefits of freedom have long been clear. Until the morality underlying land use regulations is challenged, government intervention will continue to be seen as the solution. Until the practical is also regarded as the moral, government will continue to grow and control our lives.

Nuisance and Zoning

One of the primary justifications for zoning is to prevent "incompatible" land uses, such as keeping industrial facilities out of residential areas. Such "incompatible" uses are regarded as an inherent nuisance, and rather than wait for the nuisance to occur, the use is banned as a pre-emptive measure.

In Euclid v. Ambler, the Supreme Court case that found zoning constitutional, the court ruled:

The harmless may sometimes be brought within the regulation or prohibition in order to abate or destroy the harmful.

While acknowledging that zoning can sometimes harm the innocent, the court found this acceptable. After all, you must crack a few skulls to make an omelet.

Apparently, government officials found it too much trouble to address actual nuisances. That would require a careful analysis of the facts. They found it much easier to simply cast a wide net and lop off the head of whatever they happened to reel in.

Nuisance law is one of the least understood aspects of property rights. Derived from common law, nuisance laws are founded on the premise that an individual has the right to the peaceful enjoyment of his property. The actions that create a nuisance are not inherently a violation of property rights, but the time and place of their occurrence makes them such.

For example, playing loud music does not necessarily harm anyone. If you have a soundproof room in your basement, the volume of your music is unknown to anyone else. However, if you set up your stereo on your back porch and blast AC/DC at 130 decibels at 3 AM your neighbors will be negatively impacted. (Unless of course, your neighbor happens to be Angus Young, which is highly unlikely.)

To declare certain land uses an inherent nuisance is to ignore a multitude of facts:

1. A nuisance is an actual event, not a potential event.
2. Value judgments presuppose a valuer. To declare a particular land-use "incompatible" is to declare it bad or harmful. Bad or harmful to whom?
   
3. Individual's values are not monolithic. They make choices based on their personal interests, values, and desires. Sometimes--such as when they have a low income or no vehicle--they may make choices that others find questionable. They may choose to live in a commercial area because of cost or ease of access to shopping.
4. When individuals are free, they find innovative solutions. Zoning officials for example, might find auto repair shops inherently "incompatible" with residential areas because of the noise and fumes they might generate. But a shop owner might limit his hours, or install barricades, or take other measures to eliminate a potential nuisance if he believes that the potential benefits justify the expenses.
5. The owner of a parcel of property has a right to continue his use, even when the use of adjacent land changes and his use becomes a nuisance. This is the doctrine of "coming to the nuisance". If I own a pig farm and you build a home next door, you cannot complain that the odor is a nuisance, for you "came to the nuisance".
6. The market is dynamic and the "best" use of a parcel of land can change over time. What seems appropriate for single-family homes today may be more economically beneficial as multi-family tomorrow.
   

By restricting land-use, zoning prevents individuals from making decisions regarding their own life--such as living in a commercial district--by limiting the options and choices available. New ideas--whether methods for preventing a potential nuisance or changing land-use--cannot be implemented.

While nobody is openly clamoring for zoning in Houston, there are plenty of busy-bodies who are pushing similar agendas. The entire "neighborhood protection" movement is founded on similar premises, and seeks to use government coercion to impose zoning-like controls on developers and property owners. As with zoning, such regulations punish the innocent by declaring certain types of land-use illegal, even when such use has and will not violate anybody's rights.

Indeed, Mayor White has been using the cloak of nuisance laws in his rampage against sexually-oriented businesses. He has launched a war against apartment complex owners, subjecting all to more regulations because of the actions of a few. He has happily sacrificed the harmless in order to abate what he perceives as the harmful.

If such a principle is applied consistently, the actions of some individuals can be used to justify controls on all individuals. If it is proper to punish the innocent for the actions of the guilty, then virtue becomes one's enemy. Virtue no longer serves to further one's life, but becomes the source of one's misery.

The Hazards of Walking

The headline on the front page of Tuesday's Chronicle sounds alarming: "Why walking in Houston is hazardous to your health". The story goes on to tell us that an average of 100 pedestrians die each year in the eight-county Houston region. The city's development practices is cited as the causal factor:

It can also be extremely hazardous in the Houston region, where car-oriented development and wide, busy commercial strips create a hostile environment for foot traffic.

Houston ranked eighth on a new list of the most dangerous urban areas for pedestrians.

And the hundreds of deaths and injuries to pedestrians can’t all be written off as mere accidents, according to a report released Monday by two advocacy groups. Poor roadway design and lack of safety features like sidewalks and medians contribute to the death rate.

On the surface the story seems innocent enough. Pedestrians are getting hit by cars and that isn't a good thing. No reasonable person would argue otherwise. Citing the report issued Monday, the article states:

The report calls for communities to adopt better road design standards that also include the needs of pedestrians and bicyclists, not just cars.

If we consider this issue in isolation, divorced from any other discussion of development in Houston, suggestions for road designs that better accommodate pedestrians might seem reasonable. However, to do so is to drop the context and that isn't a good thing.

For years politicians and assorted activists have been pushing Houston towards "form-based code"--a type of land-use regulation. Unlike traditional zoning, "form-based code" does not dictate how a parcel of property may be used, but does dictate certain aspects of its design and functionality, i.e., its form. For example, building set backs, "public" areas, and similar features are often a part of such mandates. Two popular versions of "form-based codes" are Smart Growth and SmartCode. Both aim to create "walkable" neighborhoods.

I do not know if the author of this piece is an advocate of "form-based code". But her article plays right into the arguments presented by those who are. The web site for SmartGrowth.org states:

Walkable communities are desirable places to live, work, learn, worship and play, and therefore a key component of smart growth.

If walking in Houston is hazardous to one's health, then creating "walkable" neighborhoods suddenly becomes a public health issue. The debate is no longer framed in terms of land-use regulations or controls on private development, but as one of protecting the welfare of the citizenry. And who would be opposed to that?

For starters, I am. Government's purpose is not the protection of our welfare, but of our rights. Anything and everything could be "justified" under the pretense of protecting our welfare. Making poor investments, or eating an unhealthy diet, or playing video games all day long could be considered harmful to our welfare. If government should be protecting our welfare, then anything harmful--real or potential--could be prohibited.

If it seems like a stretch that land-use regulations would be enacted as a means of protecting the "public's" health, consider the history of zoning, which is the most egregious form of land-use regulation. In city after city, zoning has been used as a tool to promote virtually every special interest imaginable, including mandates for "public" art, green space requirements, prohibiting "unwanted" minorities, and more.

Those who want more stringent land-use controls in Houston will seize upon anything that will promote their cause. Historically, they have had no reservations about hiding their intentions, misrepresenting their goals, or smearing their opponents. They will use whatever they believe will resonate with the public in an attempt to emotionalize the debate.

The sad thing is, while walking in Houston may be hazardous, more stringent land-use regulations will be far more devastating. As tragic as 100 pedestrians death a year are, they will pale in comparison to the destruction wrought by more government control over our property.

The War on Property Rights Continues

The headline for Monday's lead article in the Chronicle blares: "Tough Land-Use Law Supported". The headline implies that a specific law has been proposed and is generating support. But in fact, the headline refers to a poll conducted by the paper. That poll of 601 people found that 71% strongly agree or somewhat agree that “Houston should enact tougher land use restrictions.” The Ashby High Rise controversy is getting pinned as the reason for this support:

Rice University sociologist Stephen Klineberg, who has gauged voter support for zoning and stronger development protections for decades, said much of the support for such planning improvements likely falls at the feet of the Ashby high-rise development. [emphasis added]

I have argued numerous times that those calling for increased city "planning"--such as Peter Brown--are simply seeking a more appealing way to implement land-use regulations. While the article does not mention any questions about "planning", Klineberg equates land-use regulations and "planning". But that isn't the real story here.

Assuming that the poll accurately reflects the sentiments of Houstonians in general is a stretch. However, that doesn't stop the Chronicle from shouting from the rooftops. This isn't surprising since the paper eagerly embraces virtually any proposal that regulates or controls the activities of individuals. Rather than wait for an actual land-use law to be proposed, the paper wants to take the lead and start the public relations campaign now.

Back in the early 1990s the Houston Post played cheerleader to the last attempt to bring zoning to Houston. That paper trotted out poll after poll showing support for zoning, even on the eve of the referendum. But the defeat of zoning in 1993 did not deter zoning advocates, who have continued to press for land-use regulations.

What is particularly interesting about the papers using these polls is that they evade one very important fact: On three separate occasions a poll--a referendum--has been taken on zoning, and each time it has been defeated. The only poll that really matters--a binding vote by the citizenry-- is repeatedly ignored by both the Chronicle and advocates of land-use regulations.

What is also interesting is that zoning advocates (that is what they are, but they lack the intellectual honesty to say so) keep bringing up the same stale arguments. Without zoning, or "planning", or land-use regulations our "quality of life" will deteriorate, our economy will crumble, and Houston will become unlivable.

These arguments weren't true in the 1990s and they aren't true now. As evidence, Houston's population and job growth has been among the nation's leaders for decades. Houston did not experience the housing bubble and it has weathered the recession much better than most major cities. The predictions made in the 1990s have not come true, and yet zoning "planning" advocates continue to use the same claims.

I can think of a number of possible explanations for this lack of creativity. Perhaps zoning "planning" advocates are in such denial that they have lost all touch with reality. Perhaps they think that Houstonians have forgotten what was said a mere 19 years ago. (Peter Brown has apparently forgotten what he said, so it would be natural that he would think the same is true of all of us.) Perhaps they think that if they repeat their mantra over and over and over voters will approve their proposals simply to shut them up.

Regardless of their reason, those who want more control over our lives and our property will not and do not give up easily. After all, they need only one victory, while defenders of property rights must remain ever vigilant. They have lost three straight attempts to impose their restrictions and controls on property owners across the city, yet they need win only a single battle to claim victory in their war on property rights.

The Chronicle's article is the opening shot of what will surely become another battle to defend property rights in Houston. The battle cannot be fought with economic or practical arguments (as many anti-zoners did in the 1990s). The battle must be fought on moral grounds--on the intransigent moral right of each individual to use his property for his own values and interests (so long as he respects the mutual rights of others). A battle fought on any other grounds concedes morality to our enemies.

Morality--and specifically the morality of rational self-interest--is on our side. It is our most powerful weapon. We must brandish it proudly and without reservation.

"SmartCode" isn't Smart

In the aftermath of the city granting permission to Buckhead Development to build the Ashby High Rise, Houston bloggers have jumped in with a variety of suggestions for avoiding similar conflicts in the future. One of those suggestions comes from Andrew at neoHouston, who suggests that Houston adopt "Houston-style SmartCode":

SmartCode is an effort to combine the many facets of development regulation (subdivision and platting regulations, building regulations, traffic and parking regulations, etc) into a single, streamlined, compact document. Its entire goal is to stay away from land-use controls (which unreasonably inhibit the market and create constant conflict at City Hall), and focus on simple, predictable, results-oriented standards.

In essence, SmartCode divides different scales of buildings into different “transect-zones”, defines how the street should be designed to accommodate the needs of different scales of development, and leaves the rest to the market. Contrary to popular belief, SmartCode is not about “style;” the standard code does not contain any.

Andrew argues that Houston has been well-served by avoiding destructive zoning regulations. And while his proposal differs from zoning in kind, it does not differ in principle.

The right to property is the right of use and disposal--property rights permit owners to use their property as they choose, free from interference from others (so long as they respect the mutual rights of others). Zoning violates property rights by dictating the use of each parcel of land, regardless of the decisions of the property owner. Any use contrary to the dictates of zoning officials is a criminal act.

While "SmartCode" does not dictate land-use, it does establish standards that are enforced by the coercive power of government. The property owner cannot use his property as he chooses, but must instead meet the mandates of the city's standard. Dressing a wolf in lamb's wool does not change its nature; attaching clever euphemisms to land-use regulations does not do so either.

There seems to be no shortage of proposals to use the force of government to achieve some ends, while simultaneously claiming that the results will be driven by the market. "SmartCode" is one example.

The advocates of these plans believe that a mixture of controls and freedom is compatible with a free market. They do not oppose controls and regulations, only those that "go too far". They do not oppose government mandates, only those that are "too heavy-handed". However, once the principle of government controls and regulations is accepted, the only issue to be decided is the extent of those controls.

Inevitably, those controls and regulations will expand. Government intervention in the market always leads to distortions and unintended consequences. In an effort to correct those distortions, government responds by tweaking the controls, leading to further distortions. Further, those harmed by the controls will lobby for exceptions and variances to shift the harm to others, while other groups lobby for tighter controls. The political process becomes a battleground as competing groups seek to influence city officials.

The solution does not lie in tweaking the controls or developing cute variations of land-use regulations. The solution lies in recognizing and protecting property rights--completely and consistently. The solution lies in a truly market-driven economy, not one partially shackled by government.

Whether it is "SmartCode", or planning, or "Houston-style zoning", the advocates of land-use controls want to have their cake and eat it too. They seem to recognize, at least in some crude unprincipled way, that Houston's relative freedom in land-use has provided enormous benefits to the city and its residents. But they remain unhappy with some of the results. They do not like the fact that some individuals use their property differently than they would choose. And so they demand that government force the recalcitrant to act "properly".

The advocates of land-use controls, no matter the name they attach to their proposals, begin with a Utopian vision for the city. When the voluntary decisions of the city's developers and consumers do not match that vision, they rush to wield the coercive power of government. They seek to compel others to act and live according to their ideal. That isn't smart, and it certainly isn't compatible with freedom.

The City We Deserve

A recent piece on the KHOU web site asks if zoning is in Houston's future. While the article does not come to a definitive conclusion, it implies that more restrictive land-use controls will be necessary. Or, as urban planner David Crossley says:

I mean, everybody gets the general concept—you can either create the future you want or you’ll get the future you deserve.

By "create", Crossley means government planning to control development. Though he shuns the "z-word", Crossley makes it clear that government should be more involved in land-use:

It isn’t zoning that’s the issue. It’s that there is no plan, no comprehensive plan for the future.

Let us assume that Crossley is right, and Houston needs a comprehensive plan. Whose plan will be used? There is no shortage of pundits sharing their vision of what Houston should look like in the future. These plans often conflict, so we will be left with the crucial decision on choosing one plan to the exclusion of all other plans. Equally important is the issue of implementation--a plan that isn't implemented is merely a pipe dream.

City officials will have two basic options for developing and implementing a plan. The first is to hire experts--such as Crossley--to develop a plan and then shove it down our throats. Or, they could hold an endless series of hearings, meetings, and other gatherings to solicit public input. Then, after more meetings and compromises, they could shove that plan down our throats. No matter which route city officials take to develop a plan, its implementation must necessarily require its forced imposition upon all Houstonians.

Crossley, who has been briefing mayoral candidates on the issue, argues that Houston must encourage denser development and offer better public transportation. This is a plan shared by many. Others--such as the Southampton and Boulevard Oaks civic clubs--are not so keen on denser development. And the home owners and businesses along Richmond Avenue aren't happy about light rail rumbling past their property. In short, there never has been and never will be a city-wide consensus on which plan to adopt.

Advocates of zoning (or planning, as they now call it) warn Houstonians that without government control over land-use the city will plunge into debauchery and decline. They have been shouting this refrain for nearly ninety years, and it is no truer today than it was when zoning was first proposed in the 1920s. If their claims are true, why has Houston's population steadily grown? Why did Houston lead the nation in job growth in 2008? If their claims are true, why has Houston prospered more than any other city in America?

The fact is, Houston has shown a greater respect for property rights than any other city--Houstonians have rejected zoning three times. Our economic growth, low cost of living, and affordable housing are the practical benefits of our relative freedom in land use. Because Houstonians have rejected government control over all land use, today we do enjoy the city we deserve.

Zoning in Chama, New Mexico

In response to my article in The Objective Standard, I was contacted by the owner of a newspaper in Chama, New Mexico. Initially she wanted to run the article in her paper, but length and the specifics of the article made that impractical. I volunteered to write a series of articles for her to publish. The first is below.

Many claims are made about zoning. It will promote our “quality of life”, it will protect neighborhoods, it will prevent “incompatible” land uses, and much more. But zoning is not a benevolent tool for achieving these ends. Instead, it is a weapon that is wielded by the politically powerful to destroy property rights. As is always the case when individual rights are violated, the cure is more destructive than the alleged disease.

Rights are a sanction to freedom of action in a social setting. Rights allow an individual to act as he chooses, free from the interference of others, so long as he respects their mutual rights. Our rights place boundaries on others—they may not interfere with our actions—just as their rights prohibit us from interfering with their actions.

This applies to land-use as well as all human activities. The right to property is the right of use and disposal—the right to use one’s property as one chooses. Again, one may not use his property to violate the rights of others.

The purpose for zoning is to control land-use within a community. Under zoning, a land owner may not use his property as he chooses, but as dictated by zoning officials. He may not use his property by right, but only with the permission of zoning officials. And if he refuses to abide by those dictates, he is subject to criminal penalties, such as fines, imprisonment, or both.

Zoning rests on the premise that the individual is to be subservient to the community. He must abide by “community standards”. He must place the “general welfare” above his own interests and desires. And if he refuses to do so “voluntarily”, “the community” may properly force him to do so.

Each individual has a moral right to his own life, liberty, property, and pursuit of happiness. He has a moral right to live as he chooses, in the pursuit of his own values. This is true of each individual—gay or straight, male or female, Anglo or Hispanic. All individuals possess the same inalienable rights—the right to take the actions necessary to sustain and enjoy their lives.

Zoning is an abrogation of this right. Zoning forces the individual to live by the values of zoning officials, no matter his own individual values or judgment. The individual is forced to serve others; he is forced to sacrifice his interests, desires, and welfare to the demands of others.

That Chama’s zoning officials were meeting behind closed doors certainly raised suspicions about their motives. But holding zoning meetings in public does not change the nature of zoning. Zoning remains a violation of individual rights. It is time for Chama’s government officials to recognize and protect the rights of its citizens. It is time to abolish zoning in Chama.

What Can One Do?

In her essay "What Can One Do?" Ayn Rand writes:

Speak on any scale open to you, large or small--to your friends, your associates, your professional organizations, or any legitimate public forum. You can never tell when your words will reach the right mind at the right time.

A friend--Joe Reed--recently demonstrated this in a simple, but effective way. His city, a suburb of Houston, has zoning. Home owners in his neighborhood were protesting a variance request by a nearby property owner. Joe wrote the following letter to a member of the Planning and Zoning Commission:

I am a homeowner in the Oak Creek subdivision. It has come to my attention
that the owner of a piece of commercial property adjacent to my neighborhood,
Mr. Tim Wood, is requesting a zoning variance (case number BP09-01R).

The purpose of the city government and its various departments should be
the protection of property rights. Based on the information I have received on
the matter, I believe the Planning and Zoning Commission is failing to perform
this function. I believe that the property rights of Mr. Wood are being
violated. Here's why:

(1) Although I was not in attendance at the first hearing, I was told that
the planning board received over 30 emails from homeowners in my subdivision,
and that between 10-15 homeowners spoke to the commissioners at the meeting.
According to the map I've seen, the property in question backs up to only two or
three houses at the front of the Oak Creek subdivision. Assuming their argument
was that they did not want to look over their back fence and see a warehouse
(which I've been told is what Mr. Wood is building), I think it is wrong to
allow homeowners who would not be directly affected to have a voice in the
matter. For example, I received a flyer on my door requesting support against Mr.
Wood's plans (in addition to several emails), even though I live several blocks
away from the property. Why should I (and the other 150 or so homeowners in the
neighborhood) be able to keep Mr. Wood from building on his own land, when I
wouldn't even be able to see what he's built? The opinions of those who are not
even directly impacted by the variance request should be thrown out as
irrelevant- no matter how many there are. The basic principle in question is
property rights, and these should not be up for a vote.

(2) As for the two or three homeowners whose property is directly adjacent
to the property in question, they should not be able to dictate what Mr. Wood
can and cannot build on his own land, either. There is no inalienable right to
an unobstructed view from one's back door. They built houses at the edge of the
neighborhood, next door to (at the time) undeveloped land. They cannot demand
that the land remain untouched forever more. If they want to control what
happens on the adjacent property, then they could/should purchase it. The true
meaning of property rights is the right to use your own property as you see fit,
and not to dictate to others how they should be allowed to use theirs.

(3) I learned (independently of the flyer and emails I received) that there is a
potential issue with sewage service for the property in question. Apparently the
property does not currently have access to a sewage system. As I understand the
situation, this means that Mr. Wood would need to either build an on-site septic
system, or tie into a nearby sewage system (i.e., Oak Creek's). I've been told
that these options are unacceptable to the various parties.

I have heard that some types of septic systems cause odors to the
surrounding area that some find offensive. However, at this time, that is merely
a potential problem, since no such system has yet been built on the property.
Assuming that Mr. Wood builds such a system, and that it turns out to be
unacceptable to the nearby neighbors, then there are existing nuisance laws on
the books that can be used to deal with the situation if/when it actually
exists. The point is that there must exist an actual- not a potential- nuisance
before action can/should be taken. To block Mr. Wood's plans at this time, based
only on the potential for some future problem is just morally wrong. He should
be perfectly free to build whatever type of septic system he wants to (and can
afford). If he chooses now to build a system that will create a nuisance later,
then he should be prepared to deal with nuisance law violations later- when they
actually occur. If the costs of dealing with the problem later turn out to be
unacceptable at that time, then too bad for him- let the fines begin! In any
case, he should have the freedom to make those choices, and deal with the
consequences. He should not have to beg for permission from the Commission, or
the nearby homeowners, ahead of time.

As for the other option (tying into Oak Creek's sewage line), that should
be dealt with by direct negotiations between the property owner and Oak Creek
(or whatever the name of the party that represents the actual owner of the
land), independently of any zoning commission. Oak Creek owns the land through
which the other property owner wants access (to tie into the sewage system). If
Oak Creek determines that it does not want to provide access, then the other
property owner is out of luck. If the other property owner cannot convince Oak
Creek to allow access, then he must find another solution. If he cannot find
another alternative solution, then again, too bad for him. He has no right to
demand access, just as Oak Creek has no right to keep him from trying. If no
agreement between the parties can be reached, so be it. One party or the other
may walk away empty-handed, but no property rights have been violated in doing
so.

Note that I am not in any way associated with Mr. Wood, and have in fact
never met or had any contact with him. My arguments are based strictly on the
moral premise that property rights are to be protected, not violated, by the
government, and that they should never be determined by popular vote. The
property owner has the moral right to use his property as he sees fit.

The Commission should fulfill its obligation to uphold the rights of
property owners, and should therefore grant the request to Mr. Wood.

I am happy to report that Mr. Wood's variance was granted. I suspect that Joe's letter had more impact than we will ever know. As he told me prior to sending the letter, he was greatly outnumbered by his neighbors. Yet, despite the mass of people opposed to the variance, one rational, principled voice carried the day. Congratulations Joe.

Zoning is Zoning

neoHouston reports on a recent forum on form-based codes presented by Houston Tomorrow. Unlike conventional "Euclidian" zoning, which dictates what types of activities may occur on a parcel of land, form-based codes focus more on building "typology"--that is, the form of the building.

Daniel Parolek, one of the presenters, outlined the five essential components of a form-based code:

1. The Regulating Plan
2. Building Form Standards
3. Public / Civic Space Standards
4. Thoroughfare Standards
5. Administration Standards

Of these, the regulating plan is the most important, as it establishes the overall development plan for the community:

In developed areas it classifies neighborhoods based on the level of infrastructure and prevailing building type, and in undeveloped areas it proposes future infrastructure investments and appropriate building types based on that infrastructure pattern, (in other words, bigger buildings go where the bigger roads are).

On administration standards, neoHouston writes:

In recognition of one of the biggest failures of conventional zoning, form-based zoning is built with a strong focus on simple, fast administrative processes. People whose plans comply with the ordinance should experience very fast, automatic approval.

While the presenters, and neoHouston, think that there is a significant difference between conventional zoning and form-based codes, they are simply wrong.

No matter what adjectives you put before "zoning", the essence remains the same--control of property is removed from the rightful owner and vested in government officials. The property owner cannot use his property as a matter of right, but only with the permission of politicians and bureaucrats. No matter how they try to dress it up or what they call it, zoning is zoning. And zoning is a violation of property rights--the right to property is the right of use and disposal. Under zoning, no matter its variation, control of property use is removed from the owner.

Consider what happens to those who plans do not comply with the ordinance. They are prohibited from using their property as they choose. Their plans are destroyed, and they are forced to abide by the dictates of the central planners. If they refuse to do so, they become criminals.

The false alternative between conventional zoning and form-based zoning is no different than the alternative between arsenic and cyanide. To the property owner, the end result is the same--he may only use his property as others mandate.

Advocates of form-based zoning are trying to put lipstick on a pig. The fact that they frequently drop the word "zoning" and use "code" instead is one clue to their motivation. Like the advocates of "Houston-style zoning" in the 1990s, they believe that changing the name of their proposal changes its essence and its meaning. But verbal gymnastics do not change the principles that underlie their proposal.

A Debate on Zoning

The comments to a post at Houston Strategies evolved into a lengthy debate over zoning. The debate was civil and interesting. The advocate for zoning presented reasonable arguments which are shared by many people. Below are some excerpts from his comments, followed by my response (I did not participate in the debate):

I also like the efforts of the Houston It's Worth It crowd, but I suspect for different reasons. I like Houston's incredible diversity and opportunity - however to me the very slogan "Houston It's Worth It" means that it is worth beautifying Houston and making it more livable, not "keeping it ugly".

This is a common theme in arguments for land use controls in Houston. And it is an understandable argument in some respects-- nobody wants to live in an "ugly" city. But what is an ugly city and what does beautifying mean? One person might find skyscrapers beautiful (I do) and another might find parks beautiful (I do). What one finds beautiful or ugly is a matter of personal values. The same is true of "livability".

The lack of land use controls in Houston allows for a wide diversity of land uses, and hence, a wide variety of values to be offered. Land use controls reduce the variety, and impose the values of some upon the entire community. Those who argue for making Houston "beautiful" or "livable" are really arguing that their values should have the power of law.

Further, the city's population has continued to grow almost unabated for decades. This indicates that many people find Houston very livable. The fact that people voluntarily move to Houston is a very strong argument that they find Houston livable. Why is that fact so frequently ignored?

Still, it would be nice to have some recourse if someone decided to build a 30 story skycraper next to me (since I am not protected AFAIK), and it would be great to see that the city has a plan of how it would like to develop rather than having the next business center pop up in Tomball.

In this context, "some recourse" means some way of prohibiting others from using their property in a manner that he finds offensive. While it is only natural to want to protect one's investment from something one finds offensive and potentially harmful, a civilized person does so through persuasion and voluntary consent. A brute resorts to force-- or government as his proxy.

I agree that the private sector could figure out shared parking arrangements.
I'm less confident they would do things like preserve green space or figure out
how to provide effective mass transit to these areas.

A lack of confidence is not a compelling argument. Twenty years ago I wasn't confident that I would be able to reach a potential audience of millions, but here I am. The fact is, when individuals are free they will find innovative ways to provide the values sought by others. If there is sufficient demand for green space and mass transit--i.e., a profit to be made--you can be sure that enterprising entrepreneurs will find a way to provide those values.

If there is insufficient demand, that is, a small number of people desire the value, then why is it proper for their values to be imposed on the entire community? Why should something that doesn't have widespread economic value be imposed by law? That's the economic/ practical argument. Morally, what right does anyone have to impose his values on others? Each individual has a moral right to pursue his values without interference from others, so long as he respects their mutual rights. If someone desires green space so highly, then he should move to Brenham, but he should not use the government to impose his desires upon everyone else.

"Anything goes" simply does not work when you have 5,000+ people per square mile- you are going to have controversies over building heights, access to sunlight, noise, traffic, mass transit, sidewalks, signage, building uses, parking, etc. I really don't see any way around this new reality, and the libertarian arguments do not effectively answer these challenges - instead they "wish them away". I would be happy to hear alternatives to zoning or form-based code that are more open or libertarian-friendly, but simply saying that "there are no problems with the lack of zoning" or "we do not need any additional government tools to deal with these sort of issues" is an argument that I find increasingly untenable.

So the more people living together the more we need government dictating our actions? The truth is, government's purpose is to protect our rights, whether there are 5 people per square mile or 5,000. The principle does not change with the number of people.

Certainly, density creates challenges. But that does not mean that we should abandon property rights and let the government dictate how we use our land. The solution is to fully respect property rights. Government has a legitimate role in this--to identify what those rights constitute and what violates those rights.

Further, the use of the term "anything goes" implies anarchy. Houston has laws. Many communities have deed restrictions. To imply that Houston is an anarchy is at best naive.

Dictating land use is a violation of property rights. The very nature of zoning and land use regulations is a violation of property rights. We don't need more "government tools". We need a properly defined and limited government, doing its legitimate job and nothing more.

It is common for advocates of more government control to pose some issue, and when they do not receive a ready answer that they find satisfactory, they rush to conclude that government is the only solution. Government is an agency of force. When government is the "solution" it really means that force is the solution--that some may use force to impose their values on others. That is never an appropriate solution.


Despite the fact that Houston has continued to grow in terms of population and its economy, there are those who argue that our city will become "unlivable" and collapse into depravity. This argument has been made for 80+ years, and yet it hasn't come true. It is easy to make dire predictions, but when those predictions do not come true, we must seriously question the motives behind such prognostications.


The fact is, city's with strict land use controls have become unlivable for most of the middle-class. Home prices are beyond the reach of the average family, and while those cities might be "beautiful", most people get to experience that "beauty" only as they drive through. To me, beauty lies in freedom, and in that regard, Houston is the most beautiful city in the world.

Avoiding the Z Word

Zoning advocates are careful to avoid using that word. After all, they have been rejected three times by Houston voters. Further, any zoning proposal would have to be submitted to voters and the pro-zoners certainly don't want to suffer another bitter defeat.

So how will they get around both the city charter and voters? They will simply call it something else, like planning. In April, Chronicle reporter Mike Snyder posted on former Houston Planning Director Patricia Knudson Joiner:

She'd like to reframe the discussion, partly by steering it away from talk of zoning, which she considers an irrelevant and polarizing distraction. Instead, Joiner would like the public to see planning the way she portrays it in her own professional life: "Planning is seeing the future before you get there and deciding if you like it."

Since zoning is "an irrelevant and polarizing distraction" we'll just call it something else. Why get distracted by labels or principles?

But Joiner does more than simply brush the issue aside, she completely drops context. Private planning requires the voluntary consent of all involved; public planning is imposed by government force. Private planning is based on the values of the individuals involved; public planning ultimately allows some to impose their values upon the entire city. Joiner admits as much:

In other words, think of planning as an agreed-upon set of values and outcomes, then use the best available tools to achieve them. Regulations, which tend to be the focus of public discussions about how to guide growth and development, are only part of the answer, she says; local governments can also use decisions about where to invest public funds for streets and utilities to steer growth in a desired direction, and can supplement the "stick" of regulations with the "carrot" of financial incentives.

What happens to those who do not consent to the "agreed-upon values and outcomes"? Joiner is clear about that-- the "stick" of regulations will be used. In other words, those who do not agree will be forced to "agree". However, "agreement" achieved with a stick is hardly an agreement. It is the imposition of one set of ideas and values through the threat of physical force. And, as a safe measure, the City can also use bribery, aka "the 'carrot' of financial incentives".

In other words, the City will develop a plan and then impose it on everyone, including those who disagree. The recalcitrant will first be prodded with financial incentives, and then with a stick.

But none of this can happen, Joiner said, until the city develops and adopts a
plan expressing its desired outcomes. The document could be known as a
comprehensive plan, a general plan or even a business plan. (The last option may
be a good choice in a city that seems to prefer a private-sector vocabulary.)

"What business -- private or publicly traded, large or small -- doesn't
operate with a business plan?" Knudson asked.

Joiner is correct that the City can't poke and prod until it identifies the goal of its coercion. But the ends-- no matter what they are-- do not justify the means.

Further, it's not enough to just avoid the "z word". Joiner proposes to cloak it in "private-sector vocabulary". This evades the fact that there is a fundamental difference between the private sector-- which is voluntary and consensual-- and the public sector-- which is coercive and mandatory. By equating the two she simply dismisses the difference as irrelevant.

But the difference is not irrelevant. Government holds a legal monopoly on the use of force. A government plan is imposed by force. A business cannot compel others to abide by its plan. It can only seek the voluntary agreement and cooperation of others.

Unable to achieve their goals through the voluntary consent of others, advocates of greater government controls seek to use coercion to impose their values on others. Fearful of the results if they engaged in an open and honest dialogue on the principles underlying their proposals, they seek to obfuscate the issue through equivocation and evasion.

If Houstonians wish to retain their property rights, then they must see through such tactics. If Houstonians wish to maintain the prosperity they enjoy, then they must reject proposals to expand government power.

Fool Me Once

An old adage states: Fool me once, shame on you. Fool me twice, shame on me. The meaning is that if someone takes advantage of us, we should learn from that experience and not allow it to be repeated.

Zoning advocates apparently subscribe to this adage. They have changed their tune and their approach many times over the years. They have tried to fool Houstonians, but to date have been unsuccessful (at least on the scale that they want). But this hasn’t stopped them from trying again and again. And soon they will likely try again.

Three times they have been defeated in referendums. Each time however, they have inched closer to victory. They only need one victory to accomplish their goal. Once they have fooled Houstonians it will be too late. Zoning, once instituted, has never (to my knowledge) been rescinded.

In the Crisis Papers, Thomas Paine wrote: “Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it." And so they must, for those who seek to remove their freedom take many forms and use many tactics. Those who love freedom must remain ever vigilant, for once their freedom is removed, it is difficult to recover.

American political history is replete with examples of legislation that doesn’t work as its proponents promised. Indeed, no legislation involving government intervention into the economy and/ or lives of citizens will work as promised. The reason is that citizens respond to limitations on their freedom by seeking ways around the legislation. Economists often call this unintended consequences.

According to Wikipedia, this concept was popularized by sociologist Robert K. Merton

In his 1936 paper, "The Unanticipated Consequences of Purposive Social Action", Merton tried to apply a systematic analysis to the problem of "unanticipated consequences" of "purposive social action". He emphasized that his term "purposive action… [is exclusively] concerned with 'conduct' as distinct from 'behavior.' That is, with action that involves motives and consequently a choice between various alternatives".

In other words, when individuals have a choice, they not necessarily make the one that legislators wanted them to make. In response, legislators “tweak” the law to close loopholes, impose more stringent controls, expand the controls, or outlaw something else. And the cycle repeats as more unintended consequences arise.

This, in part, is why zoning ordinances invariably expand—pressure groups harmed by the existing legislation seek to mitigate their harm. (The same is true of other interventionist legislation.) They pressure legislators to change the laws to reduce the harmful consequences to them, and thereby pass the harm to someone else.

While Houstonians have avoided being fooled into zoning, they have not avoided this whirlpool of competing groups. We still have pressure groups seeking to enact legislation that limits property rights—preservationists, anti-smokers, the porn police, and opponents to the Ashby High Rise are a few examples.

Typically these groups press for extensive regulations and then settle for less draconian measures. For example, preservationists might argue for a ban on demolishing historical buildings and then settle for a 90-day moratorium. In doing this, they establish the principle that a particular activity or land use can be regulated. Once the principle is established, they can then work on expanding its reach.

The public is often fooled into believing that interventionism will solve some social ill—whether real or imagined. They are fooled into believing that a compromise between interventionism and freedom is possible. But such a compromise is not possible—it is a complete victory for the interventionists. It is foolish to believe otherwise.

Zoning Horror Stories, Part 2

If the stories weren’t true, they would almost be comical. My comments are, in case it isn't obvious, sarcastic. All of these stories come from an article by James Bovard:

Flosmoor, Illinois, in an act of legislative snobbery, banned pickup trucks from its streets — and even from private driveways. Coral Gables, Florida, charges residents $35 to get a permit to paint the bathroom in their home — or the living room, or any other room. Local building inspectors patrol the streets looking for painting trucks parked at homes that have not paid the permit fee.

I am sure that the residents of Coral Gables sleep well at night knowing that their neighbors have paid the appropriate fees to have their bathroom painted. I know I stay up at night worrying about such things.

Los Angeles prohibits freelance writers from working out of their homes in residential neighborhoods, fearing that the tap-tap-tap of their keyboards could devastate the quality of life in their neighborhoods. Similarly, Chicago issued a cease-and-desist order to a couple using two personal computers in their home to write software and magazine articles.

I am sure that the incredible volume of noise generated by the keyboards was threatening the character of the neighborhoods, destroying the quality of life there, and diminishing property values.

Pasadena, California, banned residents from having weeds in their yards, a policy sometimes referred to as "crabgrass fascism."

There is nothing quite so frustrating as neighbors with weeds in their yard. Since gardeners generally define a weed as a plant that you do not want, would the city inspector who enforces this absurd law be considered a weed?

The Office of Code Enforcement in Alexandria, Virginia, sent certified letters to twenty-two homeowners in June 1993 threatening to condemn their properties unless they fixed chipping paint on their window sills or door frames.

I seem to recall an episode on HGTV where a house collapsed because of peeling paint on a window sill. These city officials likely saved countless lives.

A Princeton, New Jersey, store owner was threatened with a 90-day jail sentence in 1993 for the crime of having a few barbecue grills lined up in front of his hardware store. Though Irving Urken had put the grills and other goods outside his store for 57 years, a new zoning ordinance banned anything in front of the store — except books, flowers, plants, vegetables, and newspapers.

Barbecue grills are so much less attractive that flowers. No wonder this business owner has only managed to make it 57 years-- he has such unattractive displays outside of his store that it is a wonder anyone would patronize his store.

East Hampton, Long Island, issued a warrant for the arrest of a food-shop owner guilty of an unauthorized exhibition of large orange gourds. Jerry Della Femina, the co-owner of a local market, had a few dozen pumpkins stacked in front of his store. Village bureaucrats ruled that the pumpkins were the equivalent of a sign advertising the sale of pumpkins, and thus the owner needed a sign permit. The shop was in a historic district, and government officials may have thought that similar markets in East Hampton in the 19th century never placed pumpkins in front of their stores.

Pumpkins are signs. I've seen orange signs before. What was this market owner thinking to advertise what he is selling? He might actually entice some mindless consumer to purchase his products. I am sure that consumers would much prefer to purchase a permit to have their bathroom painted, rather than a pumpkin.

In September 1993, the New York City buildings commissioner bushwhacked Fordham University. Fordham had received permission from the city government to build a 480-foot radio tower at its campus in the Bronx. After the radio tower was almost half finished, the city government reversed its position and revoked the building permit. The government's action cost Fordham over half-a-million dollars.

That NYC building commissioner is such a practical joker. "Sure, you can build a tower. Just kidding, I had my fingers crossed."

Newtown Borough, Pennsylvania, requires citizens to pay a $10,000 nonrefundable fee in order to challenge the constitutionality of the local zoning ordinance.

How dare citizens question the authority of zoning officials? Don't they know that they have no rights and should meekly submit to the dictates of those officials?

None of this, of course, could never happen in Houston. Our public officials-- like Chuck Rosenthal, the HPD crime lab, those involved in the City Hall bonus scandal-- are completely above reproach and we can always trust them to make better decisions regarding our lives than we can.

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

How Zoning Works

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

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

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

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

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

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

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

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

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

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

This is the ultimate consequence of zoning.

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

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

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

© J. Brian Phillips

The Growth of Zoning

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

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

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

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

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

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

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

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

Variances

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

There are two aspects of this worthy of comment.

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

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

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

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

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

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

Winning the Battle but Losing the War

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© J. Brian Phillips 2008

Zoning and the Cost of Housing

Over the years numerous studies have looked at the impact that zoning and other land use controls have on the cost of housing. One of the most recent was published in 2002 by Edward Glaeser of Harvard University and Joseph Gyourko of the University of Pennsylvania.

Like most previous studies, they found that zoning and other land use restrictions contribute significantly to the cost of housing. The authors concluded:

The bulk of the evidence that we have marshaled suggests that zoning and other land-use controls are more responsible for high prices where we see them… Measures of zoning strictness are highly correlated with high prices. While all of our evidence is suggestive, not definitive, it seems to suggest that land-use regulation is responsible for high housing costs where they exist.

You can read the full report by Clicking Here.