All Commentary
Friday, February 1, 1974

Land Use Regulation A Tool of Politics, Not of Planning

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.

In the present nationwide controversies on land use regulation, one concept appears largely unchallenged: it is government land use planning. There seems to be much agreement that public planning for the use of land is both necessary and desirable. Surprisingly, even strong opponents of zoning at times have conceded the virtues of land use planning at some levels of government.

When two diametrically opposed parties each contend that their views are consistent with and supported by “sound planning,” one cannot help but wonder what they really mean, for both cannot be correct. Thus it is not uncommon at public hearings for environmentalists to contend their proposals are supported by better or sounder planning and for the pro-development groups to argue precisely the opposite. Moreover, in these controversies, each side usually bulwarks its position with testimony from planning experts.

There is obviously much appeal in the notion that we must have more and better planning. After all, goes the refrain, if we had only planned our cities better, there would be less pollution, less congestion, no slums, more beautiful buildings, etc., etc. It seems that at almost every dinner party I attend, some guest will describe in exhausting detail some local horror that could have been avoided by: (1) better, (2) stricter, (3) sounder, (4) some, or even (5) any, planning. (On investigation, it frequently develops that the local planning department had approved that particular horror.) The argument continues: do not individuals and corporations carefully plan their activities and outlays? Why then, should government not be allowed or required to engage in this selfsame activity? The simple, yet highly profound answer, is that land use planning is doomed to failure in a representative society — and is likely to create many more problems than it solves.

Detached Experts

Land use planning means or implies an orderly, rational arrangement of or for the use of land for the present or the future, directed or controlled by detached experts in planning.

Although this definition raises many questions, it represents, I believe, what most people think they are saying when they speak or write of planning. The assumption seems to be that there is something precise, measurable or quantitative about planning or its standards; in other words, that it is, or is comparable to, a science.

This assumption is exceedingly difficult to substantiate, and few of even its most ardent proponents make the effort. Is there some precise measurement available to determine the “best” use of some or all of the land, of growth and anti-growth proposals, of whether the land is better suited for trees, lagoons, or the housing of people? Should the land be developed with two, eight or twelve housing units to the acre, or perhaps it is better suited for a mobile home park or shopping center or should be retained as open space? By now, after fifty years of zoning experience in this country, it should be clear that there are respectable, distinguished and knowledgeable planners who would disagree in many if not most instances to any or all of these alternatives. Planning is unquestionably highly subjective, lacking those standards and measurements that are requisites of a scientific discipline.

To settle any doubts on this score, simply read the records in most zoning cases. Typically, one finds testimony from two planners — one supporting the plaintiff (landowner) views, and the other favoring the defendant (city) views. At the trial level, many zoning cases have become verbal duels between planners, each promoting a substantially different position. Accordingly, what goes under the name of planning is an opinion by someone who has studied and is learned in the creation, growth and development of cities. The country’s zoning experience raises serious doubts that such training and knowledge provides any special insights, either in evaluating the present or predicting the future.

Planners confront serious problems in fulfilling their responsibilities. Theory and education alone cannot substitute for the actual experience of making practical decisions and suffering their consequences. Few planners have ever been part of the construction or development industry, nor responsible for actual decisions in the development of residential, commercial or industrial projects. Even if they once had been, their information about prices, materials, innovations and trends, consumer desires and preferences must necessarily now come from secondary or more remote sources, not directly from the “firing line.”

How then can planners possibly be as familiar with the development, construction and operation of shopping centers, housing developments, nursing homes or mobile home parks as those who develop, own and operate them? Owners and their mortgage lenders risk substantial funds on their success. Yet planners are expected to regulate all of them, which is akin to asking the blind to lead those who can see. Unfortunately for the community, in lieu of hard information, they will tend to rely on their own experience and background — which does not bode well for those of differing perspectives, tastes and attitudes.

But regardless of their knowledge, training and abilities, the fact is that planners are not destined to make a significant impact on the regulation of land use. The decisions and controls will be adopted by politicians or those appointed by politicians. And they are expected to, and do, respond primarily to those who placed them and keep them in office, and this involves politics rather than planning. In short, zoning (and other land use regulations) is, and has to be, a tool not of planning, but of politics.

Political Factors

Consider these limitations on the power of the local planner. First, he is the paid employee of the locality and cannot be expected to espouse with any degree of consistency policies contrary to those of his employers. The basic rules are established by those elected to govern. A planner who strongly advocates high density housing in the affluent single family suburbs may not last much longer than his first paycheck. Confrontations are probably rare because a planner is not likely to be hired or seek employment if his basic orientation appears to differ substantially from that of his prospective employers. Disagreements will occur and be tolerated — within limitations.

Secondly, even if a proposed plan appears to accord with the general desires of the local lawmakers and its preparation may actually have been commissioned by them, it still must be acceptable in significant respects after hearings and debates, to at least a majority, to be adopted. Amendments required for passage can easily change the meaning and impact of the proposed legislation. In practice, the “perfect” plan stands little chance of remaining intact against the opposition of a group of voters or politicians, the pressures exerted by political supporters or contributors, the payment of graft or perhaps even the voice of the local newspaper. Accordingly, the “perfect” plan is likely to be quite imperfect by the time it emerges from the legislative process, whether it be on a local or higher governmental level, and it might be ravaged still more as administered. And it is possible the courts ultimately may lay some or much of it to rest.

In a speech I once delivered in a city in Iowa, I told the audience that if zoning had controlled my trip from Chicago, I might have had to go many miles out of the way — perhaps through Denver. I speculated on the possible reasons that would influence the decision of the local legislators with respect to my routing, and they could be many. Anyone who considers this example farfetched might examine the “gateway regulations” of the Interstate Commerce Commission which control the routes taken by commercial trucks between cities and are ostensibly designed to improve the truckers’ profit margins. In a recent lawsuit, it was alleged that under these regulations some trucks are forced to travel more than twenty per cent extra miles. A staff scientist for the Environmental Defense Fund was quoted to the effect that one hauler of propane from Boston to upstate New York was required to go by way of Manhattan’s George Washington Bridge.

The detours in our society should be reduced, not multiplied. It is time we recognized that politics and planning are substantial detours in the use of the land.  

  • 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.