Lang Use Regulation; B. Siegan

When two diametrically opposed parties each contend that their views are consistent with and sup ported by "sound planning," one cannot help but wonder what they really mean, for both cannot be correct. Thus it is not uncommon at public hearings for environ mentalists to contend their pro posals are supported by better or Copyright 1973 Bernard H. Siegan. 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 Uni versity of San Diego Law School. 138 sounder planning and for the pro development groups to argue pre· cisely the opposite. Moreover, in these controversies, each side us ually bulwarks its position witlJ testimony from planning experts. There is obviously much appeal in the notion that we must haVE more and better planning. AfteI all, goes the refrain, if we had only planned our cities better: there would be less pollution, leSE congestion, no slums, more beauti ful buildings, etc., etc. It seemE that at almost every dinner part) I attend, some guest will describE in exhausting detail some loca horror that could have heer avoided by: (1) better, (2) stricter (3) sounder, (4) some, or ever (5) any, planning. (On investiga tion, it frequently develops tha' the local planning department hac approved that particular horror.) The argument continues: do no1 individuals and corporations care fully plan their activities and out lays? Why then, should govern 1974 LAND USE REGULATION 139 ment not be allowed or required to engage in this selfsame activity?

The simple, yet highly profound answer, .is that land use planning is doomed to failure in a repre sentative society - and is likely to create many more problems than it solves. Detached Experts Land use planning means or im plies an orderly, rational arrange ment of or for the use of land for the present or the future, directed or controlled by detached experts in planning. Although this definition raises many questions, it represents, I believe, what most people think they are saying when they speak or write of planning. The assump tion seems to be that there is something precise, measurable or quantitative about planning or its standards; in other words, that it is, or is comparable to, a science. This assumption is exceedingly difficult to substantiate, and few' of even its most ardent proponents make the effort. Is there some precise measurement available to determine the "best" use of some or all of the land, of growth and anti-growth proposals, of whether the land is better suited for trees, lagoons, or· the housing of people?

Should the land be developed with two, eight or twelve housing units to the acre, or perhaps it is better suited for a mobile home park or shopping center or should be re tained as open space? By now, after fifty years of zoning experi ence in this country, it should be clear that there are respectable, distinguished and knowledgeable planners who would disagree in many if not most instances to any or all of these alternatives. Plan ning is unquestionably highly sub jective, lacking those standards and measurements that are requi sites of a scientific discipline. To settle any doubts on this score, simply read the records in nlost zoning cases .. Typically, one finds testimony from two plan ners - one supporting the plaintiff (landowner) views, and the other favoring the defendant (city) views. At the trial level, many zoning cases have become verbal duels between planners, each pro nloting a substantially different position. Accordingly, what goes under the name of planning is an opinion by someone who has stud iled and is learned in the creation, growth and development of cities.

The country's zoning experience raises serious doubts that such training and knowledge provides any special insights, either in eval ulating the present or predicting the future. Planners confront serious prob lems in fulfilling their responsibili ties. Theory and education alone 140 THE FREEMAN Marc} cannot substitute for the actual experience of making practical de cisions and suffering their conse quences. Few planners have ever been part of the construction or development industry, nor respon sible for actual decisions in the development of residential, com mercial or industrial projects. Even if they once had been, their information about prices, materi als, innovations and trends, con sumer desires and preferences must necessarily now come from secondary or more remote sources, not directly from the "firing line." How then can planners possibly be as familiar with the develop ment, construction and operation of shopping centers, housing de velopments, nursing homes or mo bile home parks as those who de velop, own and operate them?

Owners and their mortgage lend ers risk substantial funds on their success. Yet planners are expected to regulate all of them, which is akin to asking the blind to lead those who can see. Unfortunately for the community, in lieu of hard information, they will tend to rely on their own experience .and background - which does not bode well for those of differing per spectives, tastes and attitudes. But regardless of their knowl edge, training and abilities, the fact is that planners are not des tined to make a significant impact on the regulation· of land use. ThE decisions and controls will bE adopted by politicians or thOSE appointed by politicians. And the~ are expected to, and do, responc primarily to those who placed then and keep them in office, and thif involves politics rather than plan· ning. In short, zoning (and othel land use regulations) is, and ha~ to be, a tool not of planning, bu1 of politics.

Political Factors Consider these limitations or the power of the local planner First, he is the paid employee oj the locality and cannot be expectec to espouse with any degree of con· sistency policies contrary to thOSE of his employers. The basic rule~ are established by those elected to govern. A planner who strongl)' advocates high density housing ill the affluent single family suburb~ may not last much longer than hi~ first paycheck. Confrontations arE probably rare because a planner i~ not likely to be hired or seek em· ployment if his basic orientatioll appears to differ substantiall)l from that of his prospective em· ployers. Disagreements will OCCUI and be tolerated - within limita· tions. Secondly, even if a proposed plan appears to accord with thE general desires of the local law· makers and its preparation may 1974 LAND USE REGULATION 141 actually have been commissioned by them, it still must be accept able in significant .respects after hearings and debates, to at "least a majority, to be adopted. Amend ments" 'required for passage can easily change the meaning and im pact of the proposed legislation.

In practice, the "perfect" plan stands little chance of remaining intact against the opposition of a group of voters or politicians, the pressures exerted by political sup porters or contributors, the pay ment of graft or perhaps even the voice of the local newspaper. Ac cordingly, the "perfect" plan is likely to be quite imperfect by the time it emerges from the legislative process, whether it be on a local or higher governmental level, and it might be ravaged still more as administered. And it is possible the courts ultimately may lay some or much of it to rest. In a speech I once delivered in a city in Iowa, I told the audience that if zoning had controlled my trip from Chicago, I might have had to go many miles out of the way - perhaps through Denver. I speculated on the possible reasons that would influence the decision of the local legislators with respect to my routing, and they could be many. Anyone who considers this example farfetched might ex amine the "gateway regulations"

of the Interstate Commerce Com mission which control the routes taken by commercial trucks be tween cities and are ostensibly designed to improve the truckers' profit margins. In a recent law suit, it was 'alleged that under these regulations some trucks are forced to travel more than twenty per cent extra miles. A staff sci entist for the Environmental De fense Fund was quoted to the effect that one hauler of propane from Boston to upstateN ew York was required to go by w,ay of Man hattan's George Washington bridge. The detours in our society should be reduced, not multiplied. It is time we recognized that pol itics and planning are substantial detours in the use of the land. ~ IDEAS ON LIBERTY Zoned or Owned? ZONING AND OWNING are different systems of determining land use. Either the land will be privately owned and its use de termined 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.

JOHN c. SPARKS CAPITAL CONSERVATION EDGARB. SPEER A FEW WEEKS AGO, when I in formed my wife that I had to go to Washington for a very impor tant meeting, her first comment was, "Oh, Ed, what have you done now?" But then I told her that the group would be made up of some of the leading realtors of this country. So she made me promise that I .would thank the members of your profession for the many services you have rendered the Speer family, during aU of the moves that we've made through the years. And I do thank you for past services and for this op portunity to join you at your na tional meeting here today . You don't have to be in business very long to realize that a prime ingre dient of industrial development is the knowledge and experience conMr. Speer is Chairman of the United States Steel Corporation. This article is from his address at the National Meeting of the Society of Industrial Realtors, Washington, D. C., No vember 10, 1973.