All Commentary
Monday, July 1, 1974

No More Repeat Performances

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.

If the substance is the same, changing the brand will not alter the effect, whether it involves cold remedies, cleaning agents, or zoning regulations. That, in essence, is the answer to most new schemes presently being proposed to solve the problems of zoning. They are fundamentally the same, except only for those seeking the end of zoning.

Many persons, of seemingly good intentions, are hotly in pursuit of that certain special zoning system that will remove the errors and evils of the existing one. Just about everyone with any knowledge of the subject will readily acknowledge that zoning has been largely a failure and something should be done. Still, despite the strong and vehement attacks on zoning by planners, lawyers, and writers, they usually reject scrapping it, insisting instead upon some new variety of regulation. The schemes differ in name and form, but not in substance, for the prime ingredient is government control.

Impact zoning, performance zoning, incentive zoning, zoning for quality, balanced community zoning, ecologically sensitive zoning, are some of the titles. And there are more. Under each, there would supposedly be better and sounder planning, more and better housing, more open space and environmental protection, and so forth and so on, all basically a repetition of representations made in the past in support of zoning, and with the same probability of success.

What the new schemes ignore is that the existence of government controls largely accounts for the problems. The same group of planners and politicians that have so dismally performed in the past are scarcely entitled to a repeat performance. Failure should not be rewarded. Politics and political expediency would remain the controlling factors, and that spells no change whatsoever.

The terms and intent of a law are not really as important as how it is applied — and often intention and application differ radically. When a certain zoning law clearly states one thing, and fifty screaming constituents insist it should be interpreted or applied differently, the politicians who must decide are certainly placed in a dilemma. After long years of personal experience, I submit that many if not most politicians will do what is in their own best interest; and if that is contrary to the law, so be it. I do not doubt that many would vote the earth is flat if that were politically expedient. Watergate is neither the first nor last time politicians and officeholders will engage in moral or legal corruption.

Nor does the judicial process offer adequate relief. In some states such as California, the judges rarely overturn municipal zoning decisions. Regardless of a state’s laws, however, any potential plaintiff must have considerable funds and be prepared for a long struggle with a municipality that may, in good or bad conscience, carry the case to the highest appellate level.

Years of litigation may be involved, during which the property cannot be used for the purpose desired. But the expenses of ownership continue. Taxes, constantly rising, must be paid. And, with the current cost of money, interest payments, especially on vacant land, can be quite substantial. Consequently, even when the facts are highly favorable, the largest or most affluent developers may not find such litigation to be a reasonable business risk.

The only meaningful change is to eliminate zoning and rely on the effective and efficient forces of the market place to control the use and development of land and property. There will be difficulties and inequities, but far fewer than presently exist, and many such situations can be met with a limited number of specific laws directed at specific problems such as, for example, a parking ordinance. The example of non-zoned Houston is available for all to observe and study the results of a different and remarkably successful approach to the regulation of land use.

This is also a timely moment to look at the difference between a regulated and a non-regulated market. President Nixon imposed wage and price controls in August 1971 in response to a virtual groundswell of opinion demanding that action. Today, less than three years later, whatever groundswell there exists is for a reverse course. The folly and disaster of controls in that area have been fully demonstrated.

The follies of zoning are much less dramatic; they do not make the nightly TV news and are not experienced daily at the super-mart. But they are well documented in the literature, even by those favorable to the concept. Within recent years, almost every major law journal in the country has published an article highly critical of zoning practices. The Harvard and Yale journals have contained pieces contending that all or most of zoning is unconstitutional.

It is difficult to find a stronger indictment than the report made in 1968 by the professional organization of planners, the American Society of Planning Officials (ASPO), to the Presidential Commission on Urban Problems. Conclusions reached in turn by that commission as well as those of two other Presidential and several state commissions were equally devastating to zoning practices.

Only the termination of zoning will remove these problems.  

  • 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.