Freeman

ARTICLE

The Powers of Regulation

JANUARY 01, 1977 by BERNARD SIEGAN

The U.S. Supreme Court, in the case of Yick Wo v. Hopkins,1 decided in 1886, struck down one of the first zoning ordinances introduced in this country. This decision deserves our serious attention today because it revealed much about the inherent nature of zoning which more recent cases unfortunately have forgotten.

The city of San Francisco had adopted an ordinance making it unlawful for any person to operate a laundry business in a wooden building without having first obtained permission of the city’s Board of Supervisors. Though clothed in public welfare rhetoric, the real purpose of the ordinance became clear in the manner of its administration. Permits were granted to Caucasian applicants but denied to those who were Chinese.

The Supreme Court ruled the law violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution, as of course it did by favoring Caucasians over Chinese. This part of the opinion is familiar to lawyers because many constitutional law textbooks have devoted much space to it.

The experts have tended to ignore the second but equally important part of the opinion.2 Yet the second part spells out doctrine that is fully as cogent to a free society and is something that most people, including even its obvious violators, would readily accept when stated in an abstract and non-specific form.

I refer to that part of the opinion which asserts that the San Francisco ordinance was unconstitutional because it “intended to confer . . . not discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons.”

To the court of that day, such power was repugnant in a society governed by the force of laws rather than the will of men: “The very idea that one man may be compelled to hold his life or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

Almost anyone who has ever appeared before a regulatory board must recognize how simple it is for the regulators to violate this standard. Members of these boards usually have enormous discretion to reach their decisions, and may do so for reasons known only to themselves and which they can hide with lofty verbiage. Nor are these bodies often overruled by the courts. As a result, the regulators have immense and growing power over the lives of people.

Consider the procedures in zoning. For the owner or developer who has invested months of time and thousands of dollars on a proposed project, there are few more important matters in life than the decision that a relatively minute group of people who hold the zoning power will make.

Having personally experienced these situations, I can assure the reader that almost regardless of the facts and the law, it is extremely difficult to predict the outcome of such hearings. There are innumerable personal factors that enter into the decision making process. Some members may study the matter diligently and try to vote strictly on what they deem to be the merits of the case.

Perhaps just as often, however, other members will be swayed by various extraneous elements, including self-interest, ideology and personal likes or dislikes for the petitioners, their opponents or what is proposed. It is not an occasion to glory in the dignity of the individual. Citizens in these proceedings find themselves as beholden to government officials as they once were to the absolute rulers of earlier ages.

The trend to slow growth and down-zoning has further augmented the problem. When Boards have authority to limit the number of building permits as they do, for example, in Petaluma, California, they can decide with little impunity what will be built and who will build it.3 This kind of wide latitude can lead to graft and corruption, but neither need enter to create the equally distasteful spectacle of substantial, if not complete power exercised by one group over another.

Reading that old Yick Wo case poses issues which our modern acceptance of regulation has tended to obscure. Analogous to the Caucasians who benefited under the San Francisco laundry ordinance, today we have local pressure groups or “right” lawyers or politicians who wield influence with the authorities. The rights of the various people who appear before these boards are far from equal.

Such are the fundamental inequities of regulation which for many of us who should be loudly protesting, have instead regrettably been blotted out by the expediencies of modern life.

1 118 U.S. 356 (1886).

2 Professor Norman Karlin of Southwestern Law School brought this point to my attention. He expands on it in his excellent article, “Land Use Controls: The Power to Exclude” in 5 Environmental Law 529 (1974).

3 See Construction Industry v. Petaluma , 522 F.2d 897 (9th Circ. ยน975).

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January 1977

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