All Commentary
Saturday, August 1, 1998

Property and Freedom

Zoning Laws Are Built on Sand

Bernard Siegan, professor of law at the University of San Diego, has been a pioneer in the analysis of government land-use controls. His 1972 book, Land Use Without Zoning, is a classic. If you want to rock a zoning advocate back on his heels, reading that book is the best preparation. The fact that Siegan refuses to bow down before statist deities like land-use planning explains why he is still a professor. He was nominated for a seat on the Ninth Circuit Court of Appeals back in the 1980s, but his nomination died in the Senate Judiciary Committee, then firmly under the control of opponents of private property rights and the free market. Judge Siegan would have been a voice of reason on the bench, but Professor Siegan continues to wage war against those who misinterpret the Constitution and promote the folly of government land-use regulation.

In Property and Freedom, he brings together decades of work. From the debates over the meaning of the Constitution to the most recent court decisions in the land-use field, this is the book to have if you want to be well informed on the issues.

Siegan begins at the bedrock, laying the foundation in an excellent first chapter, “Why Property Rights are Important.” Property is essential to individual happiness and to human progress. “What does it mean,” he asks, “to labor, innovate, or create if the material rewards of those efforts can be arbitrarily taken away by the state?” It means, of course, that you have wasted your efforts. The framers understood the importance of property and that is why the Constitution was written to protect property rights against anticipated governmental depredations. Unfortunately, the judiciary has often failed to perform its role as a firewall against legislative and executive attacks on property rights, as Siegan’s recounting of the famous property-rights cases makes painfully clear.

When he gets to dissecting the Supreme Court’s decisions that have permitted the vast proliferation of governmental land-use controls that now plague us, Siegan is a master at work. Consider, for example, Village of Euclid v. Ambler Realty, the case that gave the green light to comprehensive zoning. The zoning ordinance was argued to be a reasonable means of protecting the residents against nuisances, but Siegan shows this contention to be fatuous. Alas, Justice Sutherland, usually a reliable defender of limited government, did not have the benefit of Siegan’s insight when he wrote the majority opinion.

The trouble with zoning is not just that it is “abused,” as many zoning advocates admit. It is an inherently bad policy, the author contends. The problem is that land-use decision-making is taken from owners and developers, who know the most and stand to gain from being right about the optimal locations for housing developments, shopping centers, and gas stations, and is given instead to politically chosen planning officials who know little and have no incentive to make intelligent decisions. “Because they cannot comprehend market forces as business people do, planners . . . will tend to allow development where it is not feasible and to prohibit it where it is,” he writes. Once again, Siegan shows that zoning is built on sand.

He is guardedly optimistic about the current trend in property-rights jurisprudence. The Supreme Court’s recent “takings” cases, especially Lucas v. South Carolina Coastal Commission, have given a black eye (if not the blackest one possible) to the politicians and bureaucrats who are always looking for excuses to increase their control over private property. In this and other land-use cases, the Court has moved away from the policy of spineless deference to legislatures and planning boards to uphold the principles of the Constitution.

Encouraging as recent decisions may be, we are still very much under the heel of the planners, zoners, and takers. If we should ever get out from under that heel, it will be due in large measure to the indefatigable Professor Bernard Siegan.

  • George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

  • 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.