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.

Houston's Crime Wave

Fox News reports that crime is increasing downtown and many crimes are not even being investigated. (HT: blogHouston). Ray Hunt, of the Houston Police Officers' Union, told the station:

"We have beats that go unprotected, we have beats where there are no officers assigned to, we have lots of cases that go uninvestigated," Hunt says.

Hunt gave some examples: home and car burglaries, gas drive offs, class c misdemeanors under $50 - he says some of these cases may end up being ignored.

The station reports that Police Chief Harold Hurtt sent a letter to the Chronicle (which wasn't published) indicating that the city needs another 1,400 to 5,000 officers. Since protecting individual rights is government's only legitimate purpose, and the police are the primary local means for doing so, why can't the mayor and city council find the money to hire more officers?

I suspect that city officials will point to the city's budget deficit as an excuse. They must balance priorities, they would say. But actions speak louder than words, and if we look at their actions, we can clearly see where their priorities lie.

The mayor and city council are more interested in using tax money to help first-time home buyers, or busting apartment complex owners for having inadequately heated water, or ridding the city of "attention-getting devices". They are more interested in harassing private businesses (such as the Ashby High Rise and sexually-oriented businesses), reneging on their word, threatening veterinarians, and pushing the "greening" of Houston than protecting the citizens.

There is indeed a crime wave emanating from downtown, and it is coming from City Hall. City officials are intent on threatening--and using--force to accomplish their goals. Like the street thugs that they should protect us from, they believe that might makes right. They believe that if enough citizens support some measure, then they have a right to impose the will of that noisy gang upon the entire city. And they believe that the recalcitrant may properly be threatened with fines, jail, or both.

That they wear ties and dresses does not change the nature or the meaning of their actions. The street thug threatens you with injury. They threaten you with jail. The street thug demands your wallet. They demand your tax payment. The street thug will openly and brazenly threaten you with his gun. They will keep their gun hidden, telling you to obey, or else. The street thug believes that he has a right to take what he wants. They believe that they have a right dictate as "the people" want.

The initiation of force is always morally wrong. It is never moral to steal, to rape, or to murder. It is never moral to force an individual to act against his own judgment (unless he has first forced others to do so). The number of individuals supporting the initiation of force does not change its evil nature.

The greatest threat to our property, our lives, and our safety does not come from criminals. It comes from government. Government holds a legal monopoly on the use of force, and the only proper use of that monopoly is in retaliation against those who first initiate its use.

The initiation of force is a criminal act, and it is government's purpose to protect us from such actions by apprehending and punishing criminals. But when government uses its power to prohibit the actions of consenting adults, when it uses its power to compel individuals to act contrary to their own judgment, government is no longer our protector.

Yes, a crime wave has been sweeping Houston. It has worn the mask of historic preservation, light rail, and neighborhood "protection". It has promised us a better "quality of life" and the allure of becoming a "world-class" city. And it is a Trojan Horse--a shell that hides our ultimate undoing.

How Not to Argue for Property Rights

Given the ever increasing expansion of government, it can be difficult to find books that provide evidence of private sector solutions to issues typically viewed as requiring government involvement, such as the provision of roads, water, and similar infrastructure. Unfortunately, while many of the books that I do find provide interesting information, most undermine their own message because the author fails to understand the moral foundation of individual liberty.

The Voluntary City is one such book. The book--which consists of articles from several authors--presents numerous examples of the private sector providing streets, garbage collection, parks, and other infrastructure that I have not seen before. The examples are valuable ammunition in demonstrating the practical benefits of freedom.

However, the book also endorses ideas that are inimical to liberty. For example, in Chapter 13 Robert H. Nelson discusses deed restrictions as a private "alternative" to zoning. Unable to distinguish between voluntary, contractual agreements--such as deed restrictions--and coercive, mandatory dictates--such as zoning--the author is left to argue that the private alternative is more practical:

[T]he administration of zoning takes place at the municipal level, where political considerations often include many people who are not residents of the neighborhood. But in matters such as the control of fine details of neighborhood architecture, there is no need or justification for broader municipal involvement. Indeed, under zoning the substantial influence on such matters by outsiders leaves the neighborhood exposed to regulatory actions that it does not want. This lack of secure control over the details of the administration of neighborhood zoning leads to neighborhoods' reluctance to accept more precise and comprehensive zoning controls over aesthetic matters. (page 314)

While noting the growing popularity of deed restrictions, the author laments that older neighborhoods cannot take advantage of these voluntary limitations on property use. His proposal: Allow a super-majority of neighborhood property owners to impose deed restrictions on the entire neighborhood. If 75 percent of the property owners vote for deed restrictions, then all property owners will be compelled to accept and abide by those restrictions.

While I am certainly supportive of deed restrictions, imposing them by force is no different than zoning. Under zoning, a property owner must abide by the dictates of zoning officials, regardless of his own personal judgment and desires. Under the proposal to impose deed restrictions by force, a property owner must abide by the dictates of his neighbors, regardless of his own personal judgment and desires.

The problems go even further. The author argues that "privatizing" zoning would be a natural and logical extension of "long-standing American zoning practice":

Such an evolution of zoning from a de facto collective right to a formal collective property right recognized in the law, moreover, would be consistent with long-standing patters of property-right evolution.

Except in times of revolutionary turmoil, legislatures seldom create new property rights from whole cloth. Rather, property rights emerge gradually from informal practice, often at odds with the accepted economic and property-right theories of the day. (pages 320- 321)

Under this view, "rights" are merely permissions--rights do not derive from man's nature, but rather, from the will of legislators. And that which can be granted by law makers can just as easily be revoked. Rights however, are not arbitrary social conventions, nor are they bestowed upon us by God:

The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.

Only the individual can think. Only the individual has rights--rights are the means of subordinating society to moral law by sanctioning the individual's freedom to act according to his own judgment, so long as he respects the mutual rights of others.

Having divorced "rights" from morality, the concept of "rights" has no connection to reality for Nelson. It is a "floating abstraction"--a mix of ideas whose meaning is only approximate. Thus, Nelson can argue for the contradictory position of using force to promote "voluntary" associations. He can argue for the further contradiction of collective "rights".

This is where an attempt to ground rights in any form of subjectivism--whether supernatural, individual, or social--must lead. In the end, they do not defend rights, but their abrogation.