No More Repeat Performances; B. Siegan

Of all the harmful results of in flation, probably the most deplor able is the wiping out of lifetime savings of people as they approach retirement. Their savings are as surely stolen by the inflationary activities of politicians as by any one who might have burglarized their safe-deposit boxes. A dou bling of prices tends to cut the value of savings in half, and each subsequent doubling halves what value is left. Thus have the poli ticians of some other countries in this century wiped out all savings of the elderly in those countries. The act of inflating is despic able and dishonest, and the politicians who alone perform the act deserve the finger of scorn. Some may say that inflation is only an economic problem - not a moral problem. That would be like say ing that the theft of Widow Jones' cow, or her safe-deposit box, is only an economic problem. It is that certainly, but the focal point of the problem is the immorality of stealing and its -effect on the helpless victims.

Now, back to your contention that you and the church should be in the midst of whatever goes on in the world. Inflation is a univer sal evil that needs repetitive air ing from pulpits throughout America. I hope you will give it the thought and action it deserves. ~ BERNARD H. SIEGAN Copyright 1974 Bernard H. Siegan Mr. Siegan is the author of Land Use Without ZoninA 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 Univer sity of San Diego Law School. IF THE SUBSTANCE is the same, changing the brand· will not alter the effect, whether it involves cold remedies, cleaning agents, or zon ing regulations. That, in essence, is the answer to most new schemes presently being proposed to solve the problems of zoning. They are fundamentally the same, except 1974 NO MORE REPEAT PERFORMANCES 439 only for those seeking the end of zoning.

Many persons, of seemingly good intentions, are hotly in pursuit of that certain special zoning sys tem that will remove the errors and evils of the existing one. Just about everyone with any knowl edge of the subject will readily acknowledge that zoning has been largely a failure and something should be done. Still, despite the strong and vehement attacks on zoning by planners, lawyers, and writers, they usually reject scrap ping it, insisting instead upon some new variety of regulation. The schemes differ in name and form, but not in substance, for the prime ingredient is government control. Impact zoning, performance zon ing, incentive zoning, zoning for quality, balanced community zon ing, ecologically sensitive zoning, are some of the titles. And there are more. Under each, there would supposedly be better and sounder planning, more and better hous ing, more open space and environ mental protection, and so forth and so on, all basically a repeti tion of representations made in the past in support of zoning, and with the same probability of suc cess.

What the new schemes ignore is that the existence of government controls largely accounts for the problems. The same group of plan ners and politicians that have so dismally performed in the past are scarcely entitled to a repeat per formance. Failure should not be rewarded. Politics and political ex pediency would remain the con trolling factors, and that spells no change whatsoever. The terms and intent of a law are not really as important as how it is applied - and often intention and application differ radically. When a certain zoning law clearly states one thing, and fifty scream ing constituents insist it should be interpreted or applied differ. ently, the' politic.ians who must de cide are certainly placed in a dilemma. After long years of per sonal experience, I submit that many if not most politicians ·will do what is in their own best in terest; and if that is contrary to the law, so be it. I do not doubt that many would vote the earth is flat if that were politically expe dient. Watergate is neither the first nor last time politicians and officeholders will engage in moral or legal' corruption.

Nor does the judicial process of fer adequate relief. In some states such as California, the judges rarely overturn municipal zoning decisions. Regardless of a state's laws, however, any potential plain tiff must have considerable funds and be prepared for a long strug440 THE FREEMAN July gle with a municipality that may, in good or bad conscience, carry the case to the highest appellate level. Years of litigation may be in volved, during which the property cannot be used for the purpose de sired. But the expenses of owner ship continue. Taxes, constantly rising, must be paid. And, with the current cost of money, interest payments, especially on vacant land, can be quite substantial. Con sequently, even when the facts are highly favorable, the largest or most affluent developers may not find such litigation to be a reason able business risk. The only meaningful change is to eliminate zoning and rely on the effective and efficient forces of the market place to control the use and development of land and property.

There will be difficulties and in equities, but far fewer than pres ently· exist, and many such situa tions can be met with a limited number of specific laws directed at specific problems such as, for ex ample, a parking ordinance. The example of non-zoned Houston is available for all to observe and study the results of a different and remarkably successful ap proach to the regulation of land use. This is also a timely moment to look at the difference between a regulated and a non-regulated market. President Nixon imposed wage and price controls in August 1971 in response to a virtual groundswell of opinion demanding that action. Today, less than three years later, whatever groundswell there exists is for a reverse course. The folly and· disaster of controls in that area have been fully dem onstrated. The follies of zoning are much less dramatic; they do not make the nightly TV news and are not experienced daily at the super mart. But they are well docu mented in the' literature, even by those favorable to the concept.

Within recent years, almost every major law journal in the country has published an article highly critical of zoning practices. The Harvard and Yale-journals have contained pieces contending that all or most of zoning is unconsti tutional. I t is difficult to find a stronger indictment than the report made in 1968 by the professional organi zation of planners, the American Society of Planning Officials (ASPO), to the Presidential Commission on Urban Problems. Con clusions reached in turn by that commission as well as those of two other Presidential and several state commissions were equally devastating to zoning practices. Only the termination of zoning will remove these problems. ~ A REVIEWER'S NOTEBOOK JOHN CHAMBERLAIN WILLIAM AND ELIZABETH PADDOCK have written a sockdolager of a book in We Don't Know How: An Independent Audit of What They Call Su~cess in Foreign Assistance (Iowa State University Press, $9.95 cloth; $4.95 paper). What it proves, with on-the-spot evidence gathered often with feelings of great reluctance about hurting well-meaning idealists, is that our foreign aid program has been largely a bust, bringing virtually no permanent improvement to any body. It might be an overstate ment to say that $150 billion have gone down the drain since the U.S.