Zoning Laws; D. Mandel

A proposal to repeal any 20th century social regulatory legisla tion is usually greeted with a sharp intake of breath and then Mr. Mandel is a practicing lawyer in New ~ork City. This article is reprinted by permis sIOn from the December 1971 issue of The Architectural Forum. Copyright 1971 by Whit ney Publications, Inc. the muttered pejorative, "laissez faire." Zoning codes, an expres sion of our desire to act rationally and to use the tools of modern sci ence to respond to human needs, have until quite recently been gen erally regarded as immune from fundamental attack. In the last few years even the most passion ate admirers of the idea of zoning have noticed that zoning laws are not entirely benign. The time is ripe to consider afresh the premi ses of zoning and its effects. A modern comprehensive zon ing code draws a map dividing the area into separate use zones, com mercial, residential and industrial, usually further broken down into subzones. (The latest New York City zoning code, 1960, establishes 41 types of commercial zones, 12 types of industrial zones, and 13 types of residential zones.) Be sides establishing use zones, zon437 438 THE FREEMAN July ing codes set formulas regulating the bulk and height of structures within each zone and subzone.

The social value of legislating separate use areas is open to seri ous question. To be sure, separa tion of land uses is a natural proc ess that occurs in the absence of zoning. It is natural for businesses to cluster, for heavy industry to occupy certain terrain, for single character residential areas to de velop at certain places at certain times. To the extent that zoning simply recognizes the natural proc ess, it changes nothing and causes no loss. Wherever zoning has op erational effect it mandates a use that is not natural (i.e., one that would not occur in the absence of zoning) and perforce it man dates an unnatural allocation of resources that tends to impover ish the total community. In con temporary terms, it is bad ecol ogy. It is bad ecology partly because it regards the interest of some proximate land users as the equiv alent of "the general interest." The entire organism, the total community, is thrown out of bal ance for what is presumed to be the interest of a local part. As sume, for instance, that an area is zoned for one-family homes, minimum lot size one-half acre, and that a builder proposes to build a highrise apartment building on a part of that area. The proximate land users, or even only a majority of them, want zoning restriction as protection for their interest in maintaining "the char acter of their community." But protection of their interest means a loss to the owner of the land, an injury to his interest; it de prives workmen of jobs; it de prives the potential apartment dwellers of the opportunity to rent or buy quarters that they might want and be willing to pay for. It prevents concentrated use where concentrated use is indi cated by the willingness of some one to risk his money and conse quently condemns a greater quan tity of land to development in order to house the same popula tion.

Is It Fair? One may also question the fun damental fairness of allowing the residents of subdivisions to use the political process to insure that their neighbors will not live in apartment houses or be less af fluent than they, or will not con struct homes appreciably smaller than theirs, or build a factory. In effect, zoning grants to a local ma jority the right to exclude which is the essence of ownership. The rationale for allowing B to exercise rights of ownership over A's land ought to be found in the 1972 ZONING LAWS: THE CASE FOR REPEAL 439 impact to B of A's proposed use of A's land. Any use that A puts his land to will have some impact on B. On one end of the scale are those uses that palpably impact on B, those uses that may be thought of as "overflowing uses." When A creates noxious smells that waft over to B's land or A creates noises that substantially disturb B, A is really using not his own land but B's. The fairness 'of al lowing B or a governmental agency as representative of B, to restrain A from overflowing use seems clear. Traditionally such conduct is controlled by the law of nuisance, civiI and criminal.

The case is otherwise where A's proposed use has "minimal" impact on B's enjoyment of his land. Then the Common Law is neutral, confessing its inability to judge, absent overflowing use, whether there is greater merit in A's proposed use or in B's de mand that it be restrained. Since in this example it is impossible to discern rationally whether there is more merit in one course or the other, the basis for zoning's claim to fairness must rest elsewhere than in its ability to balance com peting interests fairly. Restraining the Majority It is in the employment of the political process, the will of the majority as expressed· by a fairly conducted vote, on which zoning's claim to fairness must rest. But to equate "majority rule" with "fair ness" or "democratic process" is terribly inexact. We may assume that "majority rule" is fair when applied to the political process (al though its best justification is practicality, not fairness). But we are bound to conclude that the hall mark of the democratic state is its restraint in applying the political process to the activities of its citizens.

Since zoning is only one of a host of forces shaping .land use it is difficult to measure its practical effects. There certainly is no evi dence that the introduction of comprehensive zoning has im proved the amenities of cities and substantial evidence that it has reduced them. Changing Technology The draftsmen of the 1916 zon ing code of New York City began their work in 1913 and it lasted without substantial revision until 1939. Like all zoning plans it was drawn in the light of technology generally available some years earlier and it was addressed to problems set in motion decades or centuries earlier and then appar ent~ The decent motives of those draftsmen and their competence are unquestioned but. their for ward vision had to be small. Their 440 THE FREEMAN July image of the ideal city was heav ily tinted by their memories of a more bucolic and less populous city of their youth. They were constrained to project the future as a virtually straight-line exten sion of the past. They simply could not (nor could anybody else) an ticipate and plan for the tumultu ous events of the next 23 years: United States entry into World War I, the virtual cessation of im migration. after 1924, the Great Depression, the ubiquitous and ferocious automobile, aircondition ing, the supermarket, penicillin.

Clouded Crystal Ball The planners' cloudy crystal ball, focused on the presumed unhealth iness of the towering office building, engendered the zoning ziggurats, the wedding-cake build ings that mar the horizon without lessening congestion in any mean ingful way or adding to the com fort of office workers. The zoners' fondness for and familiarity with row houses and their evident an.. tipathy to tenements promoted the construction and the retention of smaller houses. Dwellings adequate according to the standards of 1919 or 1925 but decrepit and dilapi dated 30 or 40 years later often cannot be restored to livability and economic usefulness because of zoning restrictions. Inner city areas are thus condemned·~ to total devastation before rebuilding can begin. Neighborhoods that might have survived in changed but rec ognizable form are totally oblit erated, their diversity and their humanity trucked away with the rubble.

Lack of Flexibility The consequences of the inher ent lack of flexibility of zoning are multifarious. Some land stays idle awaiting industrial use that never arrives. The assemblage of economically buildable parcels is made unnaturally expensive be cause builders must pay not only for the inherent value of land but also for the value conferred by zoning. Tax rolls are permanently maimed and the economic viability of the city endangered because tax concessions can be extracted for large scale development where small scale and piecemeal rebuild ing is hampered by zoning restric tions. Long after neighborhoods have been thoroughly run down and all but abandoned they con tinue zoned for residential use, the nonresidents thereof protected from industrial incursion. Where zoning's mortmain prevails, sound residences now too large for sin gle-family occupancy will often de cay to total uselessness before a new use as shop, store or multi family residence is permitted by grant of variance or rezoning. The 1972 ZONING LAWS: THE CASE FOR REPEAL 441 hub city stagnates while green areas at the city's fringe or in .the suburbs are paved over. Multi tudes are condemned to commuter trains who, but for zoning, might have lived in comfort close to their work.

Freedom Encourages Excellence One of the goals of zoning was a better-looking city. Sadly, the goal remains unrealized. Zoning provokes monumental errors. Dis satisfied with the wedding-cake structure induced by the previous code, misled by the fortuitous ex cellence of Lever House and the Seagram Building, the 1960 code draftsmen granted height premi ums for deep, ground-level set backs. The result: Sixth Avenue, lined with surly, remote towers disdaining mere commerce, with out a drug store or a delicatessen, inhullUlnly neat, without shelter or human scale for three-quarters of a mile. Repealing zoning is no guaran ty of architectural excellence. One thing is certain, ugly buildings will continue to be built. But archi tectural excellence is encouraged by· freedom not by conformity to stale committee judgment. Variances and rezoning are in sufficient remedies for zoning's rigidity, its basic conservatism.

Both do add some flexibility; both are objectionable. Proceedings for variances from zoning's rigors, limi ted in scope to begin with, are expensive and time-consuming. They are a potent source of graft and. neighborly extortion. Spot re zoning is so patently unfair it is unconstitutional. Comprehensive rezoning has to be so infrequent that it adds only minimal flexibil ity. "Discretionary zoning" is un disguised tyranny. A Proper Blend·of Uses Has zoning increased the amen ities of the city by legislating the separation of residential, commer cial and industrial use zones? In much of New York City an ob server uninformed of the exist ence of such zoning would be hard pressed to discover it for most areas exhibit a blend of uses. In much of Manhattan, for instance, the separation is a matter of a few feet, around the corner, across the street. Even so, Park Avenue be tween 59th Street and 95th Street is no more pleasant and a lot dull er without stores and offices than Madison and Lexington with them.

In mid-Manhattan and for certain people, at least, the quality of life is not diminished by proximity to commercial activities and may even be enhanced by it. Vertical separation is sufficient for comfort. Indeed, the City of New York has recently begun to encourage the construction of buildings with 442 THE FREEMAN July offices and stores below and apart ments above, an arrangement that zoning restricted for 50 years. The minimum conclusion is that a blend of commercial and resi dential uses does not by itself make for unpleasant living. Residential and Industrial The compatibility of residential and industrial use turns entirely on the question of overflowing or nuisance use. -There is otherwiRe no categorical answer to the ques tion of whether the operation of a factory at any spot on a map will diminish the amenities of a near by residential area. Zoning treats the problem of overflowing use in the grossest terms, quarantining the patient instead of trying to cure the disease and coincidentally creating enormous traffic prob lems by confining factories to re mote areas. To assert that this quarantine approach of zoning has contributed to the intensity of our present pollution problems is not wrong. Governmental coercion ought to be directed at compelling factories to confine their business to their own land so that they are unobjectionable neighbors wher ever they are. The quality of life is not and ought not to be depend ent upon legislative separation of residential and industrial areas.

Zoning's bulk and height limita tions turn out to be equally irrelevant to the quality of life. People can live and, work in very large buildings in great comfort and in smaller ones in squalor; the con trary is also true. Old Problems Remain; Zoning Brings New Ones From these conclusions one fur ther conclusion can be drawn. The unlovely city is not caused by a lack of zoning and is not helped by zoning. Zoning simply creates a new set of problems. No zoning plan can be devised that does not exhibit the de'adly defects of the zoning plans dealt with here. Zoning plans face the problems of the future with the full confidence that they can pre vent 1915 or 1938 or 1959 from ever coming back. They are and have to be drawn in the light of old technology, old resources, old problems and old ideas. They are inherently inflexible, unable to ad just to new technology, new re sources, new ideas, new needs.

Zoning plans can confer order, but the order is the order of the ceme tery or Williamsburg. Zoning, like all ecosystem modifications, itself produces effects unforeseeable when the plan is made. The great er zoning's scope the greater the chance that these unforeseeable effects will cause monumental and persistent harm. To argue that the huge size and complexity of mod1972 ZONING LAWS: THE CASE FOR REPEAL 443 ern cities make imperative the im position of zoning is quite un true. The larger and more com plex the ecosystem the less likely that it can be controlled by plans set years before. After a half-century of compre hensive zoning in an era of in ,cT,easing regulation it may be somewhat haTd to accept the idea that places can flourish without zoning, but they always have and Incompatible Systems they do so now.1 For all· these rea sons I conclude that the· most ac ceptable order of land use will arise without zoning just as the public press will have its most ac ceptable order without censorship.

1 Though my grandfather warned me that "'for example' is no proof," inter ested readers are directed to examine Houston, Texas, which has never been zoned and which is the subject of an ad mirable article by Bernard H. Siegan, "Non-Zoning in Houston," Journal of Law and Economics, April, 1970. ~ IDEAS ON LIBERTY By DEFINITION, zoning is an interference with the right of owner ship. When an owner of a property lnay use such property, con sume it, give it away, exchange it - all as he wi~hes - 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 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. Fl'om "Zoned 01' Owned'?" by J 0 H N C. SPA R K S A REVIEWER'S NOTEBOOK JOHN CHAMBERLAIN PLAYING the percentages may let you down: a well-protected polit ical candidat.e, for example, can be shot in a suburban shopping cen ter by a kook trailing him from a distant city, which means there is no absolute safety anywhere. But David and Holly Franke, distressed by poll findings that one American in eight would like to move abroad to escape crime, drugs and long distance busing to poor schools, decided to go by the percentages anywa,. They got out the FBI crime reports, looked up the places with low rates of homicide and forcible rape, and wrote to a thou sand promising U.S. communities for information about local condi tions. Then they set out on an au tomobile tour of America to have a look at forty-six communities 444 where it seemed that life might still be happy, tranquil, profitable and at least relatively free of the fear that the U.S. is doomed to a continuing steep decline.