Zoning: A Case Study; J. Roberts

THE NATURE of government bears a strong resemblance, it has been said, to that of Topsy: it just grows and grows. This should be no mystery: when government ex pands beyond its legitimate areas of protection of life and property rights, it cannot fulfill these addi tional functions as efficiently as can the free market; when the inevitable problems then arise, the same mentality which urged gov ernment intervention in the first place can conceive of no cure but more of the same medicine. More government is called for to cure the ravages caused by misdirected government in the first place. A vicious cycle is started, the closest thing to perpetual motion yet de vised by man. This malignant growth is clear ly visible in the history of Em poria's zoning experience. The town's first zoning ordinance was passed in 1927. That ordinance provided for three zoning classifi cations - one-family residential, apartment residential, and com mercial-and for a three-man board to administer the ordinance.

The zoning board now has nine members, not three, administering a complex set of zoning ordinances with nineteen different classifica tions, not three; and since 1953 zoning has applied to the county area around Emporia as well as to the town itself~ Another index to the Topsy na ture of government zoning in Emporia is revealed in its history 721 722 THE FREEMAN December of comprehensive planning. The acceptance of zoning led naturally to the further approval of com prehensive planning, with zoning as only one phase of the total picture. The first master plan for Emporia was approved in 1941, fourteen years after the intro duction of zoning. That plan was soon declared obsolete and, at least in part, im practical. As a result, those who had pushed for zoning and a com prehensive plan now urged - of course - another master plan. A major fight developed over which city-planning firm should get the lucrative contract, however, and the new master plan was not pre sented to the City until 1966. Its cost was more than twice that of the first plan, and the book con taining the new plan comprised 220 pages, 27 maps, 11 figures, and 37 tables. Not bad, for a town of only 20,000 inhabitants!

Decision-Making Transferred This gradual but thorough transfer of owner decision-making to a political planning board was not accomplished without inci dents, and some of these provide explicit illustrations of further theoretical fallacies in zoning. The most recent classification to be added to the zoning regula tions was passed earlier this year, and immediately exploded into a petty but bitter squabble whether package liquor stores should be included among the some 120 dif ferent businesses explicitly allowed under the new classification. Such arguments are nothing new under the sun. Almost imme diately after the first zoning or dinance in Emporia was passed, a large corner lot owned by the local sheriff touched off a veritable comedy of errors. Property owners in the neigh borhood held that the lot should be zoned one-family residence while the mayor and his associates at City Hall said the proper zon ing was commercial. The spat came to a head one fine morning when the irate property owners marched on City Hall for a heated confrontation with the nlayor.

While this was transpiring, how ever, the sheriff was over at the court house filing papers which clearly placed his property in the third classification, apartment dis trict. A favorite justification for zon ing is the claim that it provides stability. Beyond its legitimate functions, however, the state brings anything but stability. One of the manifestations of such instability comes in the form of spot-zoning. Edward M. Bassett wrote in 1936 that the pioneer New York zoning ordinance (1916) never could have heen passed 1968 ZONING: A CASE STUDY 723 without requirement in the en abling act for uniform application of the restrictions within a dis trict. This rule of uniform treat ment soon fell by the wayside in New York; in Emporia, spot-zon ing by the planning board and by the appeals board began almost immedia tely after the local or dinance was approved. Instability by Compulsion The nonadherence to uniform standards obviously introduces an element of instability. Other con tributing factors also are involved.

Emporia is a two-college town, and until a few years ago was drastically short of student hous ing. The zoning board decided to help relieve the problem by using its powers to encourage property owners to provide student .apart ments. But in December of 1966, the zoning board and the district court jointly began cracking down on zoning violations involving too many student roomers in houses. The same property owners who earlier had cooperated with the zoning board now were penalized for having cooperated. This example of capricious gov ernment illustrates an even more important maxim: The essence of government is coercion. The sine qua non for coercion, of course, is power; and nearly everyone is familiar with Lord Acton's dictum on the tendency of power to cor rupt. Behind-the-scenes political jockeying is a major cause of zoning instability, if for no other reason than its sweeping perva siveness.

Home owners who believe that they are protected by zoning fre quently are stunned to find classi fications changed, apparently to accommodate those who know the "right" people in the "right" places. This coercion can be merely irritating. One Emporia man could not get clear title for several months to a house he had pur~ chased, because a legal survey found that the building extended a couple of inches into a six-foot· buffer area stipulated by zoning law between the house and the property line. Star Chamber Tactics The more dangerous aspects of power misdirected were bared in 1961 when the zoning board in Emporia adopted Star Chamber tactics. The planners began hold ing closed sessions, which they justified publicly as an effort to avoid offending property owners in areas under consideration. The next step, which followed soon after, was refusal to divulge how individual board members voted.

When the City Commission then asked the zoning board to report 724 THE FREEMAN December "some indication" of the votes cast, the planners approved a reso lution calling the City Commission "out of order." Lord Acton could hardly have wanted more clear-cut confirma tion of his thesis. Unfortunately, the history of zoning in Emporia bears yet further witness. A proposal for a zoning change to allow construction of a new professional building, for instance, stirred up nearly unanimous neighborhood opposition in 1964. The chairman of the zoning board vigorously supported the proposed rezoning, however. For two years the argument dragged on. Every time the matter was placed on the zoning board agenda, large groups of protesters trooped to the hear ing; finally, the matter was brought up one evening without earlier notice, and under the whip of the zoning board chairman was approved. Noone seemed very sur prised when the construction firm owned by the chairman received the contract for constructing the new building.

Nor was that an isolated case. Later that same year, s.eventy-six Emporia property owners pre sented a petition to the City Com mission charging that the plan ning board had shown favoritism to another local construction com pany on no less than seven differ ent apartment projects. The mayor rejected the petition but admitted that the ordinances had been in terpreted "in different ways to meet specific needs." The New Shopping Center The most blatant example of misuse of zoning authority in Emporia concerned a major shop ping center development on the edge of the town. The plans were announced in early 1966 by an outside firm. The developers went to the planning board for a zoning change, and were refused, partly on grounds that the town was not large enough for a shopping cen ter. Obviously, this would have been one of the first concerns of the developers, and they had de termined that the demand was sufficient to bring them a profit with their shopping center. Com petition was the real objection, of course.

The battlefields included the City Commission, the County Com mission, and the district court, as well as the planning board, and finally split the entire town. One key issue in the next election was whether to allow the shopping center; the people elected new city and county commissions, which in turn appointed a new planning board, more favorably disposed toward the shopping center. During the prolonged struggle, however, the old planning board 1968 ZONING: A CASE STUDY 725 had been approving several rezon ing requests to allow neighbor hood shopping c·enters by local developers. The upshot of this ma neuvering is that although the original shopping center devel opers finally have obtained their green light, the smaller centers constructed in the meantime prob ably have destroyed the current feasibility of the large project. The Planner's Inflexibility Even when the power of the planning board is used for benev olent purposes, the results often are mischievous. When framing the original zoning ordinance for Emporia in 1927, the planners thought they were being consider ate in restricting the business dis trict along the main thoroughfare to protect residential property.

Immediately after publication of the zoning, however, a dozen irate property owners informed the planners that they did not want such protection - they preferred being in the "business" district. Zoning ordinances prescribe .monotonous uniformity to large districts of land, each lot of which is unique. When planners admit this fact of uniqueness, they face a new quandary: how to inj ect flexibility without utterly shatter ing the fa~ade of uniform rules. When the planners attempt to en courage the necessary diversity, through such techniques. as spot zoning, they are in effect admit ting the failure of zoning its·elf. Moreover, they open anaddi tional Pandora's box, for the arti ficial flexibility and imitation di versi ty of a collective planning board decree will never match the productive fruits and natural re sponses to market conditions pro .. vided by thousands of continuing individual land-use decisions by all of the individual property owners.

In determining the use of each piece of land in an entire com munity, planners are further un qualified by their limited liability. Sole responsibility for an indi vidual's decisions leads to careful consideration of the probable con sequences involved. If the decision is economically wise, the profits will go to that individual; on the other hand, if the decision is wrong, he alone will suffer for his error. These two factors lead to the most responsible kind of de cisions. Responsibility breeds wise economic judgments; irresponsi bility begets haphazard decisions. Planners are not bound' by such responsibility; as appointees, they are not even directly answerable to the electorate. Too often, their judgment is clouded by adherence to such fictional will-o'-the-wisps as "the greatest good" or "the best use for the community as a whole." If their decision is wise, 726 THE FREEMAN December they do not profit directly; and if their conclusion is unwise, the entire community suffers for their mistake, although the blame usu ally falls upon the owners and managers rather than upon the planners.

Even the decisions made by the property owners themselves are hamstrung by government inter ference in the form of zoning reg ulations. This intervention reduces them to the status of property owners with only partial owner ship rights because their range of choic,e is limited to that allowed by government. This points up another crucial fact about zoning: it becomes ef fective only when it prevents the owner from implementing a de cision which he has reached after the full exploration of consequences that responsibility entails. If his analysis of market conditions in dicates a given land-use, and that land-use is allowed by the zoning regulations, the regulations are of no effect. It is when that particu lar land-use is prohibited by the zoning regulations that they be come effective. Zoning thus thwarts economic use and insures waste of scarce resources. The Immorality of Zoning The fundamental objection to zoning, however, is moral. Theft may be defined as a reduction, without the owner's consent, of an owner's right to his property.

Zoning, by definition, is an inter ference with the right of owner ship. If the majority of the people accept theft, that may make theft democratically "respectable," but it does not make it morally just, nor does it cancel the effects of immorality. One of the effects of making a little theft "respectable" is that the line cannot be held there. When zoning first came to Em poria, it would have been unthink able for one person to attempt to restrict his neighbor's right to his own property without going beyond the pale of the law. Now, whenever a zoning change is contemplated, a public hearing is scheduled, letters are mailed to those persons Iiving in and adjacent to ·the affected property, and these neighbors then may legally testify in favor of or in opposition to the proposed land use. It is appalling how many people take this opportunity to help determine how their neigh bors' property is to be used.

The most common wail at such hearings is, "We were assured when we bought that the zoning would remain the same." This is an indictment, first, of the speak er: He placed his trust in zoning - government intervention - be cause he did not want to have to 1968 ZONING: A CASE STUDY 727 keep up with changing market conditions. When faith is put in false gods, the believer need not be surprised to find himself ·else where than in heaven. But that wail also is an indict ment of government intervention. Zoning encourages men to think of their decisions as "safe." Apart from the unnatural intervention, this false sense of security has oth er stultifying effects: It leads the property owner to ignore the sig nificance of those changing eco nomic conditions which enhance his investment; and conversely it leads him to ignore those circum stances which damage his invest ment. In either case, the result must be a certain mismanagement or partial waste of his resources; and the loss extends beyond him, although he is hit hardest.

All men are subject to influences beyond individual control; sound economic management seeks to keep abreast of such changes and to mold them to the individual's benefit. No government can pro tect a person against his own negligence or poor management regardless of the promises made. Zoning, then, encourages the in dividual to relax his vigilance in following changing market con ditions, through a false sense of securi ty. The zoning philosophy further encourages the individual to clamor for more government intervention to shore up his arti ficial "protection" and to prevent the exercise of the entrepreneur's ownership rights. Prelude to Urban Renewal Finally, there is no doubt that zoning helps prepare the way for that greater evil, Federal urban renewal. Three years ago, urban renewal nearly came to Emporia. The attempt failed only because copies of the preliminary plans were obtained and published by the press, with the result that an ad hoc organization of property owners carried petitions to force an election in which urban re newal was shut out of Emporia for a ten-year period.

Urban renewal never would have been considered in Emporia if zoning had not already worn down the resistance to such legal ized theft. The zoning philosophy, with its subtle undermining of private ownership and its encour agement of government suzerain ty, erodes the safeguards against more pervasive central planning schemes such as Federal urban renewal. The temptations to cor ruption and the possibilities for misuse of government power are infinitely greater under urban re newal than with zoning, of course. Zoning, consistently adhered to, leads not only to Federal urban renewal but ultimately to cen728 THE FREEMAN December tralized world government. If the use of one lot of land may be de termined by government fiat, why should planning be restricted to one district or to one community? Indeed, why should coercive plan ning be limited to massive urban renewal projects? Why not gov ernment planning for the entire nation? The world?

The constitutionality of zoning was upheld by the United States Supreme Court in the Euclid, Ohio, Case in·1926, although the court admitted that zoning regu lations "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." The decision came on an appeal from the village of Euclid, a· suburb of Cleveland, where the district court had, upon complaint of a real estate com pany, thrown out the entire zon ing ordinance of Euclid as taking property without due process of law. The high court's justification of its decision - three justices dis sented, by the way - is quite in teresting. "Until recent years urban life was comparatively simple," the opinion stated, "but with the great increase and concentration of property, problems have developed and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupa tion of private lands in.. urban communities."

This is simply the cliche that an increasingly ,complex society requires increasingly complex gov ernment. Actually, if society is becoming more complex, that is sufficient reason in itself for less government, not more. Men can govern only in proportion as they can fully and responsibly compre hend that which they govern; and the more complex that which they govern becomes, the less fully can they comprehend it and the less responsible they are in their gov ernment of it. The Supreme Court justified zoning with the utopian promise that such planning "will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and result ing confusion in residential sec tions, decrease noise and other conditions which produce or in tensify nervous disorders, preserve a more favorable environment in which to rear children, etc."

In the four decades since that decision, the arguments mustered in favor of zoning have grown somewhat more sophisticated, but basically remain just as .emotional, ill-considered, and indefensible. The free market stands as the only alterna tivee ~ EDUCATION IN AMERICA GEORGE CHARLES ROCHE III 3. Scientismand the Collapse of Standards IF THE IDEAL of an educational system is to give children a sense of their individuality and a sense of proper values, the next ques tion arises: "How well is our pres ent educational system fulfilling these fundamental tasks ?" The answer is far from encouraging. Our modern "system" seems bent upon violq,ting freedom (thus denying the concept of the indi vidual) while also violating the framework of values within which the individual exercises his free dom (thus denying the concept of a transcendent reality). True eduDr. Roche is Director of Seminars for the Foundation for Economic Education. He has taught history and philosophy in college and maintains a special interest in American edu cation.