All Commentary
Saturday, June 1, 1974

Another Case History of a Government Failure

Mr. Siegan is the author of Land Use Without Zoning and many articles on the subject. He practiced law for 20 years in Chicago before moving in 1973 to La Jolla, California, where he is an adjunct professor of law at the University of San Diego Law School.

Why would anyone want to invest in a losing venture? This is a question that should be considered by the proponents of national land use legislation who are willing to have the federal government spend $100 million annually to obtain “better” land use. The government has a uniquely bad record in accomplishing its programs; still Congressmen continually propose new and more costly ones.

Washington is usually unable to do in domestic affairs what its leaders want it to and say it will. Some of this is obviously due to corruption and incompetence, but probably most is attributable to the nature of the beast. One of the many difficulties is that, except perhaps in emergencies, representative government must necessarily respond to the continual and varied pressures and demands of its citizens, and these can alter considerably the course of its programs.

Unlike corporate stockholders whose influence is limited to the extent of their stock ownership, individual citizens of the country can have vastly more power over its affairs. By participating and getting involved in local matters, individuals or groups constituting small minorities can exert substantial influences, even impeding plans and efforts of the highest elected officials.

An excellent case history of the exercise of such powers, and the ensuing problems presented government, is contained in a short book published last year by the Urban Institute of Washington, D. C., entitled New Towns In-town. It was written by Dr. Martha Derthick, a senior fellow at the Brookings Institution. The book describes the efforts of President Johnson beginning in the summer of 1967 to build housing developments for the poor in various metropolitan areas on Federal surplus land.

The government owned the land, and the legislative authority for funding and development was then in existence. At the helm was a president personally committed to carrying out the program and willing to commit the full powers of his office toward that end. He appeared certain of success and well he might be, given the circumstances at hand.

New Community Proposals —No Positive Results

Nevertheless, four years after the program began, it was almost a complete failure. Of seven announced proposals for new communities, three were dead and the future of the others was then in great doubt. In only one instance was a small amount of construction proceeding.

The record of each of the seven proposals is basically the same. Private citizens and organizations, together with officials at various levels of government responding to the pressures of their constituents, were able to prevail over the will of the administration. Another major problem was the conflict between the different government agencies involved in planning the program and using surplus lands.

One of the sites was a 335-acre tract, located a few miles from the White House in Northeast Washington, which the administration initially sought to develop with 4500 units, all but 800 intended for public and subsidized housing. It was to be a showcase development in the nation’s capital, evidencing the country’s concern for its less fortunate citizenry.

Presumably, in the Federal city, the administration would have maximum influence and impact. But its powers did not extend over local officials and citizens. Strong opposition soon arose, both from neighboring residents who wanted only middle class housing, and various other persons and organizations elsewhere in the city who demanded a host of changes in the plans.

A lawsuit was filed to obtain “meaningful” citizen participation. Virtually from the moment the program was announced, it went straight downhill; even a new school proposed for the community became the subject of controversy as to whether it should be “conventional” or “new and relevant”; and there were of course many opinions on that issue.

Dr. Derthick does not suggest that in any of the seven situations there were any “bad guys” seeking personal monetary gain; almost everyone involved ostensibly desired the best use of the land, but this generally meant adopting only his own preferred plan. Basically, the forces that blocked the program reflected the national concerns of that period.

Perhaps in certain places some of those particular pressures may have receded over time, but they have been or will be replaced by others; comparable ones will always be with us, as well they should in a representative and participatory society.

Recognize the scenario? It is a preview of what can be expected to occur upon passage of a national land use bill. This legislation will involve much more planning, regulation and commitment at all levels of government, local, state and Federal. In addition, unlike the case of surplus land, the land that will be the subject of the lobbying, jockeying and maneuvering will be that of private citizens, not government owned. And infinitely more land will be involved than just seven sites.

Among other things, this situation does not bode well for the right of private ownership, since the owner will be just one of many, many divergent interests attempting to dictate its use.

Government clearly has limitations in carrying out its programs. Certainly legislators should take this into account in proposing new programs. There is absolutely no point in entering a milkhorse in the Kentucky derby. As Dr. Derthick states in her introduction: “The more government tried to do, the plainer became its inability to do very much.”

Copyright 1973 Bernard H. Siegan  

  • Bernard H. Siegan (1924-2006) was a longtime law professor at the University of San Diego School of Law, libertarian legal theorist and a former federal judicial nominee to the United States Court of Appeals for the Ninth Circuit.