JAMES BOVARD
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Playboy
March, 1996
HEADLINE: Conform ... or else: no citizen has the right to control his own land; The Playboy Forum; Column
BYLINE: Bovard, James
No citizen has the right to control his own land,
but every citizen has the right to control his neighbor's land
The most coercive government sometimes is not the one in Washington, though it tries. It's more likely to be the one next door. These days the greatest threats to your pursuit of happiness come from your neighbors in the form of zoning board bureaucrats, planning commission design cops and pain-in-the-ass regulators.
Want to build a retirement home on that land you bought years ago in the Columbia River gorge? Sorry, your neighbor liked the view as much as you did. You now own an officially designated "scenic area" where you can look but not touch.
Want to park your pickup truck in your driveway? If you live in Flossmoor, Illinois, forget it. Parking pickups in driveways is illegal.
Want to change the color of your living room? A man's home is his castle, unless you live in Coral Gables, Florida, where town fathers charge residents $35 to get a permit for interior paint jobs. Building inspectors patrol the streets looking for painters' trucks parked at homes that have not paid the fee.
Want to write an article in your home office about absurd zoning violations? Better live outside of Los Angeles. The city prohibits freelance writers from working out of their homes in residential neighborhoods, fearing that the tap-taptap of their keyboards could devastate the quality of life.
Besides, what are you doing inside your home? You should be out worklng on your lawn. Pasadena, California tried to ban residents from allowing weeds to grow in their yards, a policy sometimes referred to as crabgrass fascism.
As these and many other recent examples show, local zoning officials across the nation have become petty dictators. Modern zoning laws presume that no citizen has a right to control his own land--and that every citizen has a right to control his neighbor's land.
The abuse of zoning laws began in the first years of the 20th century. A breakthrough ruling by the Supreme Court in 1926 held that zoning laws were justified exercise of the police power of the state. But precedents go back even earlier. Judge Lemuel Shaw, writing in 1851, held that: "Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious." That makes sense. You shouldn't be able to turn just any property into an open-air rifle range. But by 1954, Supreme Court Justice William O. Douglas proclaimed: "The concept of public welfare is broad and inclusive; the values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as dean, well balanced as well as carefully patrolled."
While many people conceive of zoning as government acting to prevent sharply conflicting land uses such as an ammunition plant next to a day-care center, these laws have become far more invasive and arbitrary in recent years. Architectural correctness is a particularly tricky standard, yet it's enforced with an iron fist by local bureaucrats. Eleven states currently allow zoning restrictions based on aesthetic criteria alone. Officials in Laguna Beach, California prohibited a family from moving into its new home because inspectors decreed that the house had been painted the wrong shade of white. The Office of Code Enforcement in Alexandria, Virginia sent certified letters to 22 homeowners in June 1993 threatening to condemn their properties unless they touched up the chipping paint on their windowsills and door frames.
There is no statutory limit to the idiocy of zoning and planning boards. Stephen Page of Pacific Grove, California had to spend more than $600,000 and endure five years of bureaucratic hell to get permission to build his house. During one of the endless Architectural Review Board meetings on his request, one board member told Page: "In my former life as a seagull, I was flying up and down the California coastline and saw your house built shaped as a seashell, rather like a nautilus seashell, built out of driftwood and feathers, with the aperture facing out to sea." (We are not making this up.)
Zoning is not simply a question of local bureaucrats coming up with byzantine ordinances (or a community planning vision). The real abuse comes from enforcing those statutes with the weight of government.
A store owner in Princeton, New Jersey was threatened with a 90-day jail sentence in t 993 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 placing anything in front of the store-- except books, flowers, plants, vegetables and newspapers.
East Hampton, New York issued a warrant for the arrest of a food shop owner guilty of an unauthorized exhibition of large orange gourds. Advertising executive Jerry Della Femina, who co-owns 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 that a sign permit was required.
In Skaneateles, New York the local government responded to one couple's zoning violations by sending in sheriff's deputies to arrest and jail the wife. The city then drove a backhoe through the $350,000 lakefront home, razing it completely. The house, it seems, was "too big." What's more, it had an indoor pool and a three-car garage. The owner, who had fought a seven-year zoning battle, claimed that a former inspector had given permission for the changes.
Malibu, California enacted a new zoning code in 1993 that defined nearly 80 percent of the homes in the city as nonconforming--and required that the nonconforming homes be torn down after 20 years. Hire your lawyer now, but don't get your hopes up.
Perhaps you believe that it is the duty of citizens to familiarize themselves with the law and to seek out clear rulings from regulators. In some cases, even that doesn't help.
In August 1993 Seal Beach, California ordered a homeowner to remove a 30-foot observation dome atop his house---even though the city's Planning Department had explicitly approved the house and dome design three years earlier. (The homeowner had built the dome so that his children could learn about astronomy.) The city council ordered the destruction of the dome because it didn't comply with zoning rules enacted after the dome's construction. (Never mind that 100 other buildings were granted exception from the new rule.) The dome came down.
In 1985 New York City gave a developer permission to build a 31-story apartment building. After the building was up, the city announced that its officials had misread their own zoning maps and demanded that 12 stories be slashed off the building. As a result of the city's ruling, the developer was forced to spend $1 million for a 7000pound robot to demolish the extra space, floor by floor.
In September 1993 the New York City building commissioner bushwhacked Fordham University. Fordham had received permission from the city to build a 480-foot radio tower on 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 more than half a million dollars
Courts generally side with local government in any challenge, but that is not enough for some town officials. Planning bureaucrats consider their petty edicts to be above challenge. Newtown Borough, Pennsylvania requires citizens to pay a $10,000 nonrefundable fee in order to challenge the constitutionality of a local zoning ordinance.
The reigning principle of legislation in the former Soviet Union was "everything is prohibited which is not specifically permitted." The American Planning Association recommends a similar rule: "It is good practice to include a general 'violations' section in zoning regulations that, in part, says, 'It shall be a violation of this ordinance to make any use of property not expressly permitted by this ordinance or a permit or other approval granted hereunder.'" This is the situation that is already existing in many areas of the U.S. As consultant Dick Cowden observed, "Anyone who buys property and hopes to alter its use is considered, almost by definition, to be in violation of a land use plan"
Perhaps the single most controversial land use regulations at the national level concern wetlands. When the Environmental Protection Agency drafted regulations that closed wetlands to development, environmental groups applauded. Migratory birds, it seems, need a place to rest. What constitutes a wetland? According to the EPA, if a duck crossing state lines on its annual flight looks down and stops to refresh itself, we're talking wetland.
The "glancing geese" test sparked a full revolt. Journalists tell of developers unable to turn farms into a $5 million golf course, of farmers being unable to plant, of homeowners being arrested for trying to grow grass in their backyards--because their property had been designated a wetland. One couple in Washington State had the bad luck to own a beautiful farm--ash groves and pastures. The state built a highway nearby and a drainage channel backed up and turned the pastures into a bog. The state then added insult to injury by labeling the bog a wetland. Because the land could no longer be farmed, the state canceled the land's agricultural status, recalculated the tax rate and demanded $8000 in back taxes.
The property rights movement has chosen an inspired weapon--the concept of "taking." If the government has intruded onto a citizen's property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking, the government must purchase the property from the owner. Activists in Washington State pushed for reform that would have forced the state to compensate the property owner for the loss of his livelihood. (Say the feds find a spotted owl in your backyard. If they think the spotted owl is worth saving, let them pay for it.)
The foes of Washington Referendum 48 estimated that such a law would cost local governments from $278 million to $899 million a year, and that ultimate compensation costs would range from $3.8 billion to $11 billion. Darrell Harting, a supporter of the legislation, told the press: "If that's true, what the $11 billion really represents is how much money they've been stealing from individual property owners who were unlucky enough to have the socalled resource they were so concerned about protecting."
Government abuses of zoning laws were clearly foreseen back in 1926 by Supreme Court Justice Willis Van Devanter. While the majority of the Court held that a town could outlaw apartment buildings (calling them parasites on the neighborhood), Van Devanter dissented: "The plain truth is that the true object of the ordinance in question is to place all property in a straitjacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit the community." As the decision took note of the conflicting interests involved: "That our cities should be made beautiful and orderly is, of course, in the highest degree desirable, but it is even more important that our people should remain free."
Are we still free?