Freeman

ARTICLE

For Appearance's Sake

Does Private Property Ownership Threaten Beautification?

NOVEMBER 01, 1996 by JAMES D. SALTZMAN

Filed Under : Coercion

Don’t let people control the appearance of their property. That’s the view of Montgomery County (Texas) Judge Alan “Barb” Sadler. During the spring of 1995, he proposed a law to restrict commercial signs on strips of privately owned land along rural highways in his county. Mr. Sadler decried the “general decay of the area, and by decay I mean unlimited signage. . . . It’s a classic case of private property rights versus beautification and environmental concerns.”1

This belief that private property rights compromise a “public interest” in “beautification” has generated a host of legal procedures allowing the government to veto an owner’s wishes for the appearance of his property. There are ordinances to prescribe landscaping, boards to oversee alterations to “historic” buildings, bodies to govern changes to trees, committees to dictate the design and color of new buildings, commissions to restrict “eyesores” such as strip shopping centers, and laws–as were proposed in Montgomery County–to prohibit such forms of “visual pollution” as billboards and other types of outdoor advertising.

Beautification Without Coercion

All too often, supporters of such regulation presume that private property ownership threatens beautification. But is that a fair assumption? Consider the case of trees in Houston. Other cities like Charlotte, North Carolina, and Austin, Texas, have statutes controlling alterations to privately owned trees. In March of 1996, Houston passed such legislation to calm the fears of some politicians and citizens that private property owners–particularly commercial developers–were tearing down too many trees. As one angry citizen wrote to the Houston Chronicle (December 1, 1994), “We don’t need our day ruined by a greedy jerk with a chain saw.”

However, in Houston developers and other private owners have had their way with trees for over 100 years. The result? As another writer to the Chronicle (November 20, 1994) pointed out, “[o]ne has only to go to the top of any tall Houston building, look all four ways and admire the forest within the city of Houston, and realize they were nearly all planted by property owners and developers without the help of government or complainers.” That’s right. A forest. Though Houston has undergone decades of the intensive commercial development that frightens supporters of tree preservation, the city remains blanketed by trees.

It wasn’t always. Before private development, Houston contained large areas virtually without trees. One such area included Rice University, in a section of Houston now extensively developed and filled with trees. A July 25, 1996, article in the Rice News pointed out that “[p]hotos from the turn-of-the-century show campus grounds as a coastal prairie where trees were the exception not the rule.” In fact, much of Houston was once part of what the article calls “bald prairie,” prime grazing land in frontier days.

But with extensive private development–both commercial and residential–came trees.2 For example, the December 1995 issue of Bellaire Monthly shows before and after photographs of the same street in Meyerland, one of Houston’s most upscale neighborhoods, first developed in the 1950s. The first photograph shows the neighborhood brand new–and bereft of trees except for a sapling or two in each front yard. In the second photograph, shot from the same location and angle approximately 40 years later, it’s hard to see the houses because of all the mature trees.

That’s not surprising because trees improve the value of property 3 to 5 percent for single-family residential tracts, according to one study cited in a November 13, 1994, article in the Houston Chronicle. The article also pointed out that The Woodlands, a privately planned and developed community 30 miles north of Houston, has been the “top selling new home community in the Houston area in the 1990′s.” Why? “The Woodlands leaves large stands of trees and undisturbed forest underbrush throughout the project,” according to the Chronicle. As one spokeswoman for the Woodlands explained: “When we do surveys, the No. 1 reason people move here is the vegetation and trees.”

In other words, private property rights encourage improvements in the appearance of what people own because the owners benefit. As economists James D. Gwartney and Richard L. Stroup explain: “If private owners fail to maintain their property or if they allow it to become abused or damaged, they will bear the consequences in a decline in the value of their property. . . With private ownership, wise stewardship is rewarded. . . . Private owners can gain by figuring out how to make their property and its services more attractive to others.” It’s just common sense. The people crowding into Home Depot on weekends to buy paint or shrubs aim to make their property look better, not worse.

And what of the homeowner who worries about the tastes of his neighbors? He can choose to buy property in a neighborhood with aesthetic controls enforced through private contracts known as deed restrictions.

Such restrictions, also known as restrictive covenants, are usually initiated by developers to blanket entire subdivisions. The restrictions are enforced by homeowners’ associations, and residents of the subdivision typically have the opportunity to vote periodically, often every 20 or 25 years in Houston, to reinstate, revise, or even cancel the restrictions.

And these rules have teeth. A June 3, 1993, article in the New York Times reported that one homeowners’ association in Seattle successfully sued a husband and wife for painting their house an unapproved color. These defendants, “under a court order and facing the threat of imprisonment or fines of up to $2,000 a day . . . finally agreed to repaint their house. They . . . already had their wages and checking account garnisheed and a lien put on their home.”

And according to the article, paint color is not the only exterior feature that private controls can regulate. Under deed restrictions, homeowner groups can “control a myriad of things, from how often homeowners must mow their lawns to whether to allow basketball hoops in the driveway” and even “that old cars cannot be left in the driveway . . . and that trailers, boats and motor homes must be stored out of sight.”

Deed restriction can also govern fencing, flagpoles, the types and configuration of bedded flowers, and even architectural features, such as facades and the number of stories. On September 7, 1986, the Houston Post explained how a Houston couple was prevented by their civic club from adding a residential second story to their home.

Yes, deed restriction enforcement can be harsh on non-conformists, but non-conformists need not buy into a restricted neighborhood in the first place. As an attorney told The American Legion (February 1996), “These agreements are voluntary contractual arrangements where you have agreed that this is how you are going to live.” As they shop around for property, home buyers can choose how much “aesthetic protection” they desire, without the government deciding for them. Private controls over the appearance of property, however nitpicky, operate through elective contracts with terms explicitly spelled out.

Government Run Amok

Meanwhile, the government’s controls operate through coercion. Everything is up for grabs. Just ask Stephen Page.

According to his article in the Wall Street Journal (December 24, 1994), he had bought a 1.08 acre lot on the seaward side of the Monterey Peninsula in Pacific Grove, California, in 1991 to build his “dream house.” But rather than a dream the city’s design review process gave Mr. Page a nightmare.

“Over a two year period,” Mr. Page recalled, “we endured 20 public hearings regarding the size, shape, height, siting, texture, materials, and color of our proposed residence.” During one of 11 public hearings with the Pacific Grove Architectural Review Board, a commissioner objected to Mr. Page’s plans for the design of his house because “[i]n my former life as a seagull, I was flying up and down the California coastline and saw your house built shaped as a seashell, built out of driftwood and feathers, with the aperture facing out to sea.”

Apparently, Pacific Grove leads the country in protecting the feelings of reincarnated seagulls from the aspirations of property owners.

To appease the city’s wishes for a smaller house, Mr. Page shrank his request for a 4,200-square-foot residence to 3,600 square feet. But then the Pacific Grove Planning Commission and City Council reduced it to a 1,900-square-foot house with a 600-square-foot garage, hardly enough space to justify Mr. Page’s investment at that point of “approximately $1.4 million” for “the lot and carrying costs to date”. When the Planning Commission chairman was asked to justify the 1,900-square-foot figure, he replied, “I pulled the number out of a hat.”

After two years of hearings, Mr. Page sued the city to gain his development rights. A year later the city backed off and voted to allow Mr. Page to build a 3,680-square-foot house with a 600-square-foot garage.

Mr. Page’s story shows how capricious and cruel government inevitably becomes when it sees its purpose–sees justice–not as protecting individual liberties but as trashing them for some crusade like making the community “look right.” As Frederic Bastiat points out in The Law:

The mission of the law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its purpose is to protect persons and property. . . .

If you exceed this proper limit–if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, or artistic (emphasis added)–you will then be lost in uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it on you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

Perhaps at requiring you to dole out an extra $3,400 to put a wall around your yard.

That happened in Galena, Illinois, where historic preservation rules would not let Jim Holman build the wall with $200 worth of railroad ties. Only a stone wall costing at least $3,600 would suffice, the Houston Chronicle (November 25, 1989) reported.

Yes, for appearance’s sake, it’s easy to spend someone else’s money. In Seattle in 1993, Zymogenetics Inc., a biotech company, had spent $25 million renovating the city’s defunct steam plant into a laboratory. But the building was a designated landmark, so the city’s historic preservation officials forced the company to shell out an additional $500,000 “to add half a dozen fake smokestacks” to resemble the ones that had been part of the original structure, according to the Wall Street Journal (September 19, 1995).

Dictating how private property should look is also a good way to encourage people you don’t like to leave your community. In Flossmoor, Illinois, that meant cracking down on owners of pickup trucks. In this town of 8,000 just south of Chicago, the open display of pickups by the town’s blue-collar residents offended an affluent elite. So the village passed “an ordinance that bans the parking of pickup trucks in one’s driveway or on the street.” As one resident of Flossmoor for 32 years told Insight magazine (May 21, 1990), “I moved to this community because it was beautiful, quiet, upper-class. . . . If they want a pickup truck and there’s an ordinance in the village that says you cannot have one on your property, then go live somewhere else.” But given that there was no such ordinance when they moved in, why should the pickup owners be the ones to relocate, rather than those who wish to avoid seeing pickup trucks?

In 1990, people who lost their homes to the Painted Cave fire in California weren’t told to relocate. They were only not to rebuild without meeting Santa Barbara County’s exacting standards for architectural correctness. Although they eventually settled for dictating detailed landscaping plans to him, county officials initially told fire victim David Pritchard that he could not “replace the house he had completed just seven months earlier” because it had been too tall.

At one meeting, Mr. Pritchard explained that before burning down, his hillside home had blocked the view of no neighbor. But a planning commissioner replied that allowing him to rebuild his home as tall as it had been would allow it to be “in view of everybody who drives up [Highway] 154.”

Fostering Censorship, Thwarting Consumers

That’s a typical excuse for censoring how someone thinks his property should look: It might offend the tastes of someone else. But is this a good reason for the government to regulate what we see? As Bernard Siegan notes in his book Land Use Without Zoning:

People differ greatly in their perceptions and concepts of beauty, and this makes it most unfair and perilous to progress to allow any one person or group to impose aesthetic controls. History readily bears out that society will be enriched by being subjected to a great variety of artistic or visual experiences; modern culture is enormously indebted to creations that were highly unpopular and virtually subversive in the past. Controls on the appearance of property allow intolerance to masquerade as high-mindedness, stifling innovation and creativity.

In Siegan’s view, a historical preservation commission that stops controversial buildings is engaging in a kind of censorship, no more justifiable than censoring controversial books or museum displays. The result is that “we may be creating through [land-use] regulation a society in which aesthetic diversity is highly limited.”3

And in revoking the right of citizens to determine the appearance of their property, the government only weakens general consumer welfare. When the New York City Landmarks Commission vetoed the building of a tower over Grand Central Terminal, it also vetoed the interests of the tower’s potential residents and of the surrounding businesses that would have served those residents. As Siegan has remarked elsewhere, “the aesthetic ideals of a publicly appointed body” were allowed to “deny material comforts to a significant segment of the community.” Only individuals exercising their private property rights, not government committees exercising dictatorial powers over property, can satisfy the widely diverse tastes and desires of people.

Take strip shopping centers. Advocates of aesthetic control may condemn them as “eyesores” and seek to use zoning to prevent their construction. Yet the outlets they contain–laundromats, convenience stores, repair shops–serve the needs of the “poor and less mobile in the population.4″

Or take billboards. Scenic America, a national lobbying organization devoted to “cleaning up visual pollution,” dismisses billboard advertising as “a parasitic industry benefitting a small interest group at enormous cost to the public,” according to the group’s “Sign Control News” (March/April 1990). In fact, outdoor advertising benefits consumers by increasing business rivalry. Roadside signs are often the cheapest way for new business to challenge more established firms for the patronage of customers. Billboard price advertising allows consumers to find lower-priced gasoline more easily, reducing the average price paid.5 In others words, billboards and other commercial signs exist, not because a “parasitic” outdoor advertising industry forces them onto an unwilling public, but because these media provide information consumers desire.

Sorry, Charlie

A free market ruled by consumers is not what Scenic America wants. Neither do other advocates of coercive controls on the appearance of property. Unfortunately, Prince Charles of England is such an advocate.

According to the November 5, 1988, edition of The Spectator, “Prince Charles does not like tall buildings.” When viewing the plans for an 800-foot skyscraper, Prince Charles asked the architect, “Why does it have to be quite so tall?”

The answer is simple: Because the developers think enough consumers want to purchase or lease space in a building that tall. Individuals who must bear the economic consequences of what they do with their property are competent to decide how it should look.

1. Paul McKay, Sign, sign everywhere a sign . . . Houston Chronicle, June 4, 1995, p. 33A.
2. See Ralph Bivens, A growing conflict in the Houston Chronicle, November 13, 1994, p. 1E. This study of the tree controversy in Houston shows how commercial developers often save trees to enhance their company’s image or to improve the value of property they own. The article says that merchants in shopping centers worry that keeping too many trees will prevent potential customers from seeing their stores. However, the article shows how one developer saves trees from a commercial project to transplant elsewhere on the same site or move the trees to a residential project with the hope of making the area more attractive to home buyers. The article also alludes to the fact that Houston has many office parks extensively adorned with trees.
3. Bernard H. Siegan, Land Use Without Zoning (Lexington, Mass.:D.C. Heath and Co., 1972), p. 143.
4. Siegan, p. 143.
5. Countering claims that billboard advertising–or other advertising–of alcohol and tobacco could contribute to the public health problems associated with increased consumption of those products, Ekelund and Saurman note that the 1971 ban on the broadcast advertisement of cigarettes apparently had only a small effect on overall consumption. Moreover, advertising restrictions for such controversial products retard the introduction of their safer versions, as the ban on TV cigarette advertising slowed the introduction of low-tar and low-nicotine cigarettes. See Robert Ekelund and David Saurman Advertising and the Market Process (San Francisco: Pacific Research Institute for Public Policy, 1988), pp. 149, 137.

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November 1996

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