Zoned or Owned

Mr. Sparks is a business executive of Canton, Ohio.

The "almost-libertarian" may be described as one who is almost consistent in
his belief in freedom of choice, limited government, and private ownership—
but not quite. Whether such slight deviation from principle is important or
unimportant as it pertains to zoning, is the basis of this discussion.

In our day there are but few per­sons, surely, who would adopt plain, unadorned, outright thiev­ery as a way of life. And if a few were so inclined, the rest of us undoubtedly would bring the force of police power to bear upon them in order to discourage their im­moral inclinations.

Crude transgressions upon the right to own one’s property, therefore, are rather effectively thwarted. People almost always recognize stealing in its simplest form and act to prevent it. Failure to do so would produce unpleas­ant, unhappy results, for in a so­ciety in which ownership is not respected, production of goods beyond mere subsistence level ceases. After all, why should one person produce a good that could be taken away by another? As a way of life, stealing can result in nothing more than a hand-to-mouth kind of existence. Stealing is the removal of property, in whole or part, or of the right to its use, from its owner without the owner’s consent. In the absence of theft, a complete owner may use his property as he wishes, sell it to another who wants to buy it, give it away, or even destroy it—as long as he has not removed another person’s right to do likewise with his property.

Now, let us introduce a bit of complexity to the discussion of stealing. A legend, related by Plato, tells of a shepherd who found an unusual ring. When the ring’s set was turned inward to­ward the palm of the hand, the nearer became invisible.^¹ A question is then posed. How would a man react if he had such a ring in his possession? Would he trans­gress upon another if he could remain invisible while perpetrat­ing this invasion of another’s rights? Would he steal if there were no danger of being caught?

Twentieth-century man need not speculate about magic rings to hide his immorality. Over re­cent centuries he has become en­amoured with the ever-widening use of a device called majority rule which does much the same thing. Through the privacy of a ballot box, the voter becomes an unidentified person, in effect an invisible person, who has the chance to transgress upon his neighbor by voting to remove legally a part of his neighbor’s property or his right to use it as he likes.

Irresponsible Behavior

When the scope of govern­ment is extended beyond the po­lice protection of the life, liberty, and property of each citizen, we have entered the land of the shepherd’s legendary ring. And as the intrusion of government in­terference into private lives be­comes the customary and accepted manner of society’s operation, the sense that distinguishes between the moral and the immoral is lost, or at least numbed.

Regardless of a dulled moral sensitivity within a society, steal­ing causes evil results. And it causes evil results even though accomplished by "invisible" means. Faced with such bad re­sults, man naturally tries to find cures for these unpleasant out­comes. As he does so diligently and honestly, he slowly moves to a better understanding of the laws of our Creator. He sees more clearly than before the fallacy of hiding his moral responsibility in the midst of the group. He dis­covers that the commandment—"Thou shalt not steal"—is more complicated than he ever knew. Occasionally, the real source of an abuse against an individual’s rights is discovered, and even less occasionally successful steps are taken to rectify it. Examples of these rare instances are the events leading to the Magna Carta, Pe­tition of Rights, and Declaration of Independence. Perhaps one measure of man’s evolution is the degree of his ability to recognize transgressions of men upon other men that go beyond the simple commission of theft and murder.

However, the process described never arrives at a final conclusion as it threads its way through the chronicles of history—never moves in a straight line toward deeper discernment. Sometimes a gain is registered; at other times ground is lost. Man’s imperfection allows only glimpses here and there as he struggles upward on the irregular path of evolution. Therefore, it should not be sur­prising that certain manifesta­tions of particular abuses by some men against others may be quite unsuspected. An abuse may ap­pear in a form that seems to be very respectable, even praise­worthy. It may receive the un­qualified support of leading citi­zens who sincerely attempt to achieve a desirable goal through its use.

The Abuse That Is Zoning

One manifestation of this kind is zoning. By definition, zoning is an interference with the right of ownership. When an owner of a property may use such property, consume it, give it away, exchange it—all as he wishes—that is ownership. Zoning reduces his lat­itude of action by political re­strictions that prevent certain possible uses and require others. Zoning and owning are different systems of determining land use. Either the land will be privately owned and its use determined by the owner to his greatest satisfac­tion from the choices available to him in the market place, or the land will be used as directed by government.

Zoning has attained widespread acceptance in most urban communities and in many rural districts as well. Numerous civic leaders )f good reputation believe zoning is a proper method to preserve and even to encourage a growth of property values. As a result of such popularity, it is likely that few persons consider zoning wrong—or perhaps admitting it is an intervention, consider it a "good" intervention producing more good than evil. Or a few may believe it is a wrong intervention, but still better than allowing each owner to make his own decisions, predicting the latter would be chaotic. Logic is laid aside. For-rotten is the fact that stealing is a reduction of an owner’s right to his property without his personal consent, and that zoning falls within the definition of this wrong. Knowing that wrong methods inevitably produce wrong results, we should logically expect wrong results in proportion to the degree zoning dictates property use.

Should Be Unnecessary To Prove

It really should be unnecessary to have to prove that evil begets evil in every separate and new instance. To identify an evil method should be sufficient reason in itself to bring it to an end. It is a sorry commentary on our time chat expediency is the prevailing measure rather than principle. So, we must try to establish by evi­dence once again that any evil—including zoning—brings about evil results.

It would be convenient if every unhappy effect were clearly iden­tified with its root cause. But such is not the case. Causes are often obscure and must be carefully searched out.

And even then the connection between an alleged cause and an alleged effect may be beyond un­questionable proof. Particularly is this the case regarding land use, because each piece of land is as unique as a fingerprint. Its owner is also unique, being the only one of his particular mold in all crea­tion. For these two reasons alone, no set of circumstances surround­ing the determination of land use can be identical with another. Consequently, whether one land use is better than another cannot be proven in the manner that a chemist, for instance, would ex­periment with two situations con­trolled to be alike in all respects except one, so that one variable and its cause and effect relation­ship can be isolated. Hence, the search for "proof" will produce only circumstantial evidence. We could proceed from either end—as a prognosis, wherein a known wrong action is the basis for pre­dicting an ill-fated outcome; or as a diagnosis, wherein the outcome provides a clue as to its contribut­ing causes. Probably both methods must be employed, drawing upon theory and whatever evidence there is available.

The Small, Inauspicious Beginning

Knowing the nature of other kinds of government intervention, we might expect zoning would have a growth pattern starting small and inauspiciously, and for reasons not too unpalatable to property owners at the outset. In fact, the desirable purposes given in the beginning for having zon­ing probably would easily over­shadow the mild objections. Furthermore, zoning proponents would emphatically rebuff those few ob­jectors who visualized future mis­chief from this intervention.

Many interventions have fol­lowed this gradual growth pat­tern. Zoning fills this description quite well. It was adopted first in 1916 in New York City. The rea­sons given were for the preserva­tion of health, safety, morals, and the general welfare, for the most part relating to fire protection and congestion due to tall structures. Economic preservation or develop­ment of property value was not considered to be a part of zoning at all. In fact, great care was tak­en to see that zoning would not become an economic plaything of politicians. Bassett, in his book, Zoning, reported a concern among the populace of favoritism toward some owners at the expense of others." Recounting the first twen­ty years of zoning, Bassett says that the enabling act (in 1916) which required uniform applica­tion of restrictions within a dis­trict was imperative to its first passage. Without such a provision, property owners would have be­come especially hostile, and zoning would have been unacceptable thereby precluding it from becom­ing a law. However, once the law was passed, this rule of uniform treatment began to be disregarded. Economic preservation and devel­opment of property quickly came to the fore as the reason for zon­ing.

After a Half-Century of Zoning

In a matter of one-half century zoning has passed from an early restraint of minor degree designed only to protect health and safety, to the broad dictatorial power of today that has transferred owner decision-making to a political com­mission or board. What are the re­sults of the application of the zon­ing idea over the years? Have the early purposes of zoning been ac­complished in the half century of its use? Bassett contended that "improper uses of land caused in­jury to homogeneous areas and were especially productive of pre­mature depreciation of settled lo­calities." He then described a typi­cal transition of a residential area from one-family homes to apart­ment houses, then to stores, ga­rages, and factories. Apparently, he was convinced that such changes over the years would be for the worse and would likely leave behind blighted areas. To stabilize residential localities from such alleged deterioration was the common reason for the passage of zoning regulations in the early twenties. Zoning would prevent blight, its advocates assured; be­fore long the "blight preventive" was being adopted throughout ur­ban America. Surely, property owners and civic leaders could look forward to many years of healthy economic progress under the blessing of zoning.

But no! Cities subscribing to regular doses of zoning for nearly 50 years are today faced with big­ger and worse blighted areas than ever before. The modern-day medi­cine prescribed by today’s planner (yesterday’s zoner) is an even larger dose of limitation against owner decisions and placement of even more power in the hands of the zoning and planning commis­sions. Evil spawns more of the same.

Property Owner Seeks Maximum Satisfaction

To the best of his ability, an owner will use his property in a manner that he intends will give him the most satisfaction. Fre­quently, the satisfaction an owner gains from his property is meas­ured in terms of economic worth, or substantially so. If the use of each piece of land within a com­munity has been separately deter­mined by its individual owners, each striving for maximum satis­faction, the total satisfaction with­in the community—chiefly eco­nomic—will also be near its maxi­mum for that particular time. Conversely, restrictions that do not allow each owner the freedom to achieve maximum satisfaction with his property, will require him to make second- and third-rate (or worse) choices.

Richard V. Ratcliff, Professor of Economics, University of Wis­consin, in his book, Real Estate Analysis, contends that the sum of all decisions, with respect to indi­vidual real estate investments and land use, determines the manner in which cities grow and change.3 It logically follows that the sum total of second-rate economic deci­sions within a community can pro­duce over all only a second-rate economic satisfaction. A community whose growth pattern must rely upon second-rate economic de­cisions should expect to find itself in economic trouble.

Second-Rate Decisions

Second-rate decisions are not just happenstance. As an owner with only partial ownership rights, he must fit his decision within government edict, rather than from unimpeded judgment. As a zoning official, the decisions are second-rate because the deci­sion-maker lacks first-rate ingredi­ents. His chief lack is the very real discipline that ties an owner personally (and financially) to the results of his decision. The zoner decides for other owners regard­ing the use of their properties and knows when he does so that he is not accountable personally for his inadequate or erroneous acts. Furthermore, the zoner can con­ceal the part he plays since he is only one member of a commission or a committee, thereby often avoiding the direct brunt of verbal accusation from the property own­er who feels unjustly treated. The zoner, therefore, lacks ingredients important to first-rate decisions.

Neither does his becoming a zoning official provide him with other ingredients to make up for the lack. He is not endowed with special access to wisdom or fore­sight. Zoning commissions have no "corner" on the foretelling of fu­ture events, or of new develop­ments. Rather the contrary is more common. Who, in the hey­day of the canals in the early nine­teenth century, anticipated that railroad travel was about to cross the threshold of progress? Who, in 1910 (or 1920, or 1930) could have described the twin impact of the modern automobile and com­munication methods on their grandchildren of the 1960′s?

Legislating "Visionary" Shortcomings

Although zoners and planners by their actions have repeatedly proved their own "visionary" shortcomings by inaccurate esti­mates of new developments and change, this does not seem to de­ter them from eagerly and confi­dently trying again at each new opportunity. Tenacity is a laudable trait at times, but not when the price of the planner’s failure must be borne by others than himself. For example, one should not be startled to find that brand new merchandising methods and modes of living, growing out of these twins of twentieth century prog­ress, would demand a freedom of development not generally per­mitted within the boundary lines of most large cities. The most competent zoners simply could not have anticipated the radical changes arising from the post World War II automobile and in­stant communication.

Changing Trends of Living and Relaxing

More economic (and other) sat­isfaction began to be achieved out­side the city, in the suburbs or in the countryside, where no zoning existed. Shopping centers sudden-[y became a fantastic economic phenomenon all over America—with one nearly uniform charac­teristic—they were located almost anywhere and everywhere but sel­dom within the customary com­mercial areas of the cities, at least, luring the period of their early development. Many developed out­side the corporation limits. The difficulty involved in obtaining needed relaxation or modification if zoning statutes within the cities discouraged the early shopping center development from taking place there.

Even the nature of recreation changed and affected the economy. The witnessing of entertainment moved from population centers to movie theaters, professional baseball stadiums, and the like) into the home via television, while the popularity of participant entertainment and recreation climbed steeply. Such change calls for ex­treme economic agility not per­mitted by government-determined [and use.

Zoning Lacks Originality

Can there be a connection between the zoning-type restrictions and the dull, stagnating economic con­dition that is the usual forerunner of the frantic demands of local downtown owners for federal aid? Zoning prescribes sameness and monotonous uniformity. Neither is a characteristic of being alive. In her book, The Death and Life of Great American Cities (Ran­dom House, 1961), Jane Jacobs says, "Do cities decline because they are blighted by too many peo­ple; because they have close-packed mixtures of commerce, in­dustry, and housing; because they have old buildings and narrow streets, with small landholdings along them? Not at all. These are the very things that can—and do—give big city neighborhoods the close-grained diversity they must have to thrive, to be the kind of place people want to come." She urges that diversity be encour­aged. Real diversity cannot be ar­tificial, that is, taken from the singular majority mind of a zon­ing commission or city council. True diversity is the result of thousands of separate land-use de­cisions by all individual owners.

Zoners and planners frequently try to obtain diversity by indulg­ing in an imitation of the "real McCoy." Interventionists would be completely at sea without the knowledge of free market results for them to imitate. While zoning may be looked upon by some as advanced thinking, in reality it is an attempt at imitation of the best results already obtained elsewhere in a free market place. Conse­quently, such attempts to copy must be necessarily "after the fact"; it cannot be original in the sense of being in harmony with the pulse beat of contemporary economic decisions.

The City of Houston, Texas, is often pointed out as the largest American metropolis without zon­ing. This does not mean that all citizens there favor nonzoning. Periodic balloting on the issue shows there are some who want zoning, although it has met defeat each time. As a result of the issue being raised every few years, a case against zoning and in favor of complete ownership-determina­tion of land use has been regularly prepared after a great deal of study and research. There is strong evidence that property values in Houston and certain non-zoned suburban communities of greater Houston are at an envi­able level when compared with property values in other adjacent but zoned suburbs and in other comparable cities of the nation.`

Houston, Texas—Without Zoning

From 1950 to 1960 Houston has grown from the twelfth largest city in the country to the seventh largest—without zoning to work its "mysterious wonders." Many of its citizens proudly compare property values of Houston with their neighbors in certain zoned suburbs. The Houston values are reported to be almost always sub­stantially higher, for example, for property on one side of a street (in Houston) compared with zoned property on the other side of the same street that lies in a suburban community. Both sides of this common-boundary street were once residential. The subur­ban community "protected" its property owners—only residential use was permitted. The "pro­tected" property value today is comparably very low, but still resi­dential. Land use on the Houston side is a mixture, but of high value.

Others—With Zoning

In his book, The Future of Our Cities (Doubleday & Company, Inc., 1961), Robert A. Futterman places the blame for the "traffic horror" of Los Angeles and Wash­ington on zoning ordinances which prohibited buildings of more than thirteen stories in either city. The reason in Los Angeles—earth­quakes; in Washington—to pre­vent monuments from being dwarfed by large buildings. How does this restriction produce hor­rible traffic snarls? Futterman contends that as a result of such restriction it is impossible to de­velop sufficient downtown work-population density to support a rapid transit system. Hence, the automobile overtaxes the highway and street facilities.

Futterman goes on to observe an error of typical suburbia which has zoned against industry, apart­ment houses, and the usual list of "undesirables" only to find them­selves beaten and bruised in car­rying the whole burden of school taxes. Many of these same com­munities now are officially search­ing for potential industry to locate within their previously "pure" residential and restricted commer­cial areas. Political determination as a method of accomplishment must always run last in an eco­nomic race against decisions grow­ing out of individual freedom of choice.

To the degree a city is stifled by zoning, it moves away from maximum economic progress and toward an economy made up of second-rate, or worse, decisions. Zoning becomes operative only when it prevents owners from making choices they consider best. Question: Is the zoner blessed with more intelligence and wisdom than other humans? Is he more capable and talented in the art of good decision-making than owners would be with their own proper­ties? Even a zoner with an overly-generous endowment of wisdom and intelligence would have trou­ble honestly answering these ques­tions affirmatively.

A Question of Honesty

Zoning dictates land use politi­cally. Within the hands of the po­litical agents often is the power to designate who shall receive the benefit of a land monopoly. This is the case to a larger degree in federal urban renewal planning, but even zoning has its areas of discretion within which the mem­bers are empowered to use their own judgment, particularly where the element of diversity is sought.

"Recent experiences… have shown that without flexibility zon­ing imposes a virtual strait jacket of regulations upon community de­velopment… and the use of prop­erty." To overcome inflexibility, the modern zoning ordinance seeks to interject flexibility to cope with changing times—not the natural flexibility reflected by the thou­sands of independent economic de­cisions, but the artificial imitation discussed before. Therefore, flexibility is necessarily achieved by providing zoning officials with areas of discretion. These are areas conducive to influence and persuasion beyond the realm of impartial justice—in fact—arbi­trary determination may be the only method open to zoning offi­cials in certain instances. How then can such an official be free from the special influence of those who would convey valuable consid­erations in return for favorable decisions?

In an article^s in The Cleveland Press dated Wednesday, February 12, 1964, Forrest Allen said, "A Cleveland City Plan adopted in 1949 has been virtually abandoned under pressures—from council­men and others—for spot zoning to meet spot needs. The 1949 plan has become just a pretty map. If all the zoning changes since 1949 were put on in red ink, the so-called plan would have a bad case of smallpox. A detailed study of 1963 zoning changes shows that while some appear to come easy for real estate promoters, an in­dustry without friends in Council has a tough time." In a second article of the same series Allen went on to say that "the real plan­ners of Cleveland today are land speculators and apartment build­ing promoters."

Special favors are not confined to areas within municipal bound­ary lines since the advent of county-wide or township-wide zon­ing. If a politically-favored farm­er near a developing suburban area can win a zoning classifica­tion that is virtually monopolistic (for example, the only land zoned for business for miles around) it can be quite valuable to him, forc­ing others to deal with him on his terms if they wish to establish a business in the general vicinity.

As a result of this kind of be­hind-the-scenes political by-play, zoning lends more instability than stability to land use. Home owners who believe they are protected by zoning may have a rude awaken­ing when a zoning change is sud­denly approved to accommodate the speculator who appears to have had unusual influence with the "right" persons in the municipal officialdom. A legally exclusive or monopolistic privilege to an enter­prise no one else within the area is permitted to engage in, is an attractive prize and often becomes a lucrative temptation to corrup­tion. Frequently, newspaper sto­ries about hearings on proposed changes in zoning classifications report unexpected, unexplained re­versals in the positions formerly taken by certain councilmen or zoning commissioners.

This is not to imply that all zoning authorities, or even most of them, are dishonest. They are, however, charged with the respon­sibility of making decisions that grant special dispensation to some persons over others. Whether the judgment is honest, dishonest, vise, or unwise, the decision is an intervention that comes primarily from the political realm. It can never be an accurate reflection of numerous owners making their own separate decisions aimed to ^bring the greatest economic satis­faction mutually to the parties involved.

To Coerce or To Compete?

It is natural for a man to at­tempt to maintain the value of his property. His efforts to accomplish this may run in either of two separate directions. One is the atti­tude that a law—zoning or urban renewal planning—will preserve the relative status quo of businessmen and property owners within a community, at which point certain men may be quite well satis­fied. They want nothing to disrupt their current set of circumstances they are apprehensive of change because this means work to keep abreast of it. So anxious are they to preserve their present status that they fail to see the zoning action itself brings about an immobilization of full economic motivations. A subsequent decline in values can be expected. This atti­tude, then, is unreliable, produc­ing the opposite effect desired. Similar to patent medicines and other forms of quackery, which cannot make the old young or the homely handsome, zoning and its latter-day kin, government urban renewal, are unable to solve land-use problems satisfactorily. They can only raise false hopes.

The second attitude is the rec­ognition that real retention of eco­nomic values means maintaining the same relative position in a dy­namic, moving market. One must swim to keep up with the economic stream. The "game" never ends. Tomorrow is a new day with new economic decisions based upon a satisfaction of tomorrow’s wants. Acceptance of this attitude is the key to maintaining one’s economic rank. And happily, the competitive road of freedom of choice leads toward the good and vibrant life, and away from economic senility.

Regardless of the logic and wis­dom of the second attitude, we are lured by the promise of "pro­tection" through zoning laws, not realizing the strong probability that zoning already has contrib­uted substantially to the economic decline of cities. Then absurdity is added to absurdity as misdirected government adopts more error to cure the problem caused by its first error. The fallacy of zoning is surely the forerunner of its big­ger evil, the fallacy of government urban renewal.

Zoning and owning are incom­patible. Since the former is an in­terference with ownership, zoning at best is a "respectable" mid-twentieth century form of theft of an owner’s right to own. When­ever the right to own is removed, restricted, or eroded in any man­ner, society declines toward a low­er level of economic goods that is matched by a lower level of spir­itual and moral values.

 

—FOOTNOTES—

1 Plato’s The Republic, translated by Benjamin Jowett, (New York: The Modern Library).

² Edward M. Bassett, Zoning. (Rus­sell Sage Foundation, 1936), p. 26.

³ Real Estate Analysis. (New York: McGraw-Hill Book Co., 1961).

⁴ From reports of The Greater Hous­ton Planning Association, February, 1962.

⁵ Martin J. Rody and Herbert H. Smith, Zoning Primer. (Chandler-Davis Publish­ing Company, 1960), p. 38.

⁶ "Spot Zoning Riddles City Master Plan"

 

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Abolition of Private Property

The distinguishing feature of communism is not the abolition of property generally, but the abolition of bourgeois property. But modern bourgeois private property is the final and most complete expression of the system of producing and appropriating prod­ucts, that is based on class antagonism, on the exploitation of the many by the few.

In this sense, the theory of the communists may be summed up in a single sentence: Abolition of private property.

KARL MARX, Communist Manifesto (1848)