The Outstater

April 5, 2023

Zoning: Government for Government’s Sake

My favorite public policy that creates more problems than it solves remains recycling. A close second, though, is zoning with its ignoble beginnings as a way to keep Jews off 5th Avenue in New York City.

Recycling of course is the art of making millions of dollars convincing environmentally woke households to sort out their trash so it can be sold to China to dump in the ocean.

Zoning, or more specifically euclidian zoning, is less clever but impressive nonetheless. Invented by a lawyer, it is government for government’s sake. That is apparent when you compare your city’s 10-year “master plan” with what has actually happened in those 10 years. There will be nothing “master” about it.

We get the name “euclidian” not from orderly geometry but from the 1926 court case Euclid vs. Ambler Realty. The real estate company argued — quite reasonably, we think — that it would lose money if the city of Euclid, Ohio, forced it to sell its property for residential rather than industrial use. Ambler claimed this was an unconstitutional taking of property and that it was denied equal protection under the law.

The U.S. Supreme Court sided with the city and away we went.

In my city a proposal for a car dealership was denied in a vacant block full of trash and weeds in the inner city. That was so despite the developer’s offer to generously landscape the property with full-grown trees and bushes to shield neighbors. Why? The planning bureaucrats thought “something better would come along.” It never did, and that was 20 years ago.

Here is some research on that point courtesy of the Cato Institute, studies we hope to replicate in Indiana:

Again, it is a specious argument that the typical zoning code “protects” anybody, that is unless you are talking about protection from other races or classes, and even then economic forces eventually prevail. There are better but largely untried land-use systems such as “performance” or “impact” zoning which put the property owner first. Also, Houston has shown how neighborhood standards can be negotiated without inflexible zoning laws.

But as is the case with recycling, zoning is powered not by effectiveness but by fear — fear that we will destroy the earth, fear that unpleasantness will move into our neighborhood. But the best way to make sure your property is protected is to build it well, put some thought into location and maintain it. And if neighboring property is offensive, you can buy it and use it as you wish.

Do I simplify? Certainly, this is an essay and not a book. But again the test is to compare your city’ “plan” with actual developments — or better, what the city would have looked like had there been no zoning whatsoever. 

And there are costs. Your city will have created a housing shortage, especially in the most economical units. It will have driven off uncounted jobs and investment. Well-connected lawyers will have gotten rich. Do we need mention the tax burden of a floor at city hall full of well-paid bureaucrats?

That said, we break off to applaud a village in upstate New York. It is Caroline, a modest agricultural settlement that had existed for 200 years without zoning laws — not a one, until now.

The trouble began when a farmer, John Morse, got an offer to buy some of his marginal land as a location for a Dollar General store. He hoped it would provide him the money to retire.

Not so quick, said a new element in town, faculty from nearby Ithaca and Cornell University. These Cornell-ites had moved to Caroline precisely because it did not have unsightly things like strip malls with Dollar General stores. Among them was Ellen Harris, the former director of waste management at Cornell (ah, the recycling devils again).

Although Caroline didn’t have zoning it did have a written vision of its future. But Harris helped write a 137-page expansion with new and exacting property restrictions — a zoning code, in other words. The changes would trash the retirement dreams of Morse and many other longtime residents to make room for a better class of citizen.

It apparently has not occurred to the Cornell bunch that if they feel so strongly about this they could buy out any property owners making poor aesthetic choices. But it is cheaper for them to get government involved. Anyway, here is Christian Britschgi of Reason magazine summing up the situation to date:

“‘When you look at the restrictions that come into play, there’s a whole giant table of what you’re allowed to have or not have,’ Morse says. ‘You can have this kind of business because we like it, you can’t have this kind of business because we don’t like it.’ . . . As Morse got out the word about the zoning code, more people realized their own plans for their land would be banned or subject to a lot more rules going forward.”

Division rules. Morse and his friends marched on city hall with signs reading, “Zoning Kills Dreams.” Britschgi tells of one confrontation where anti-zoning residents invoked their families’ long history in the town only to have a  member of the zoning commission respond by saying she was sick of hearing about people’s stupid “heritage.”

So, will Morse and his valiant provincials win against the tenured sophisticates who know best what to do with other people’s property? Will he set the example for rolling back superfluous regulations and lower housing costs throughout the nation?

Here’s a clue: Some of the plan meetings are held on Zoom in a town where only the few have high-speed Internet. — tcl


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