Backgrounder: Zoning

November 1, 2015

by Craig Ladwig

The Pulitzer Prize winner David Mamet, writing his political confessions for the Village Voice, famously argued this: In the abstract, we might envision an Olympian perfection in our courthouse, “but any of us who has ever been at a zoning meeting with our property at stake is aware of the urge to cut through all the pernicious bullshit and go straight to firearms.”

That mood was captured in a weekend article by Tim Harmon of the Fort Wayne Journal Gazette. Harmon, with balance and insight, tells the story of an idyllic subdivision whose residents woke up one morning to learn that the county’s master plan, which had hinted at an eternal and uninterrupted horizon, had been trumped by the more immediate logistical needs of the region’s largest employer.

And surprise, the mountains of minutely detailed codes, regulations and zoning legalese failed to ensure harmony. The issue may end up in court — or multiple courts — with the process certain to be unpleasant for all sides. That’s because master plans are little more than political gestures with all the whim and spin that implies. Deeds to property rest on a thousand years of English Common Law. The two never mix peacefully.

For the right of property is not a simple matter of adjusting the colors on a zoning map. It is in a constitutional and even biblical sense an absolute that cannot be fudged by administrative decree. Property is either owned fully or it is not, and it can never be shared with a government or king. As such, it constitutes, as the Hoover Institute’s Tom Bethell has said, “the noblest triumph” of Western civilization.

There is no policy sector that does more violence to that thought than a typical department of zoning. In Indiana, those departments impose the Euclidian model of zoning, a system that segregates land use into specific geographic districts whose inflexibility is supposed to guarantee a bureaucratic idea of fairness.

The word “segregates” is not used lightly here. Although named for a U.S. Supreme Court case filed by the village of Euclid, Ohio, the model’s concept was developed in New York City at the turn of the 19th century to institute anything but fairness — rather, to keep Jews off Fifth Avenue. Moreover, the impossible zones cap economic growth at best; they invite corruption at worst.

Few are aware that there is an alternative, one recommended for no other reason than it is universally dismissed by officialdom and developers alike. Known as “performance” or “effects-based” zoning, it accommodates market principles and property rights by allowing the competing parties flexibility in direct negotiations outside the inevitably arbitrary restrictions of codes and master plans.

Residents of a subdivision, to follow Mr. Harmon’s example, might suggest to the owners of a proposed warehouse that to win their cooperation the company should: 1) hood its light poles; 2) ensure that rail cars be unloaded inside the warehouse to minimize noise; 3) commission an architectural design that melds with the rustic view; and 4) construct a perimeter mound of trees and shrubs to hide buildings and steer truck traffic in the opposite direction of residences.

Those stipulations were offered by the particular business in question but rejected by some of the subdivision complainants. They may have been assured by their attorney that language in the county’s comprehensive plan could be employed to block the business altogether.

That rarely happens. More likely, the attorneys for the business, a rightful property owner with political connections, will try to recoup the costs of legal action and construction delays by reducing accommodation to the minimum. The residents end up living near a more ugly, dusty and noisy operation than necessary; future investors will be warned that this is a risky county in which to buy property; and finally, the attorneys move into new homes on larger lots further from the conflagration they helped create.

Why do they still do it this way? We can suppose that they have given up on keeping the Jews off Fifth Avenue. What they have not given up on is the power, valuable in the most rapacious way, of deciding where all of us live and what we do there.

And never mind that the outcome, even short of firearms, is routinely a mess.

Craig Ladwig is editor of the quarterly Indiana Policy Review.



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