A Free Society; B. Siegan

BERNARD H. SIEGAN Society VOTERS in Jefferson County, Mis souri (pop. 110,000) have twice re jected zoning. In 1970, 56 % voted to terminate it and 58% voted in 1974 against establishing county zoning. I met some of these anti zoners recently. One man told me he began his campaign shortly after discharge from the army. He purchased about an acre of land in a rural area to build a home, but was denied a building permit because the parcel was too small to qualify under the zoning ordinance. He was ou traged since it was inconceivable to him Copyright 1975 Bernard H. Siegan Mr. Siegan is the author of Land Use Without Zoning and many ~rticles on the subject. He practiced law. for 20 years in Chicago before moving in 1973 to La Jolla, California where he is Distinguished Professor of Law at the Univ~rsity of San Diego Law School. 98 that anyone could possibly have been harmed by his proposed struc ture.

When. my learned friends hear this story, they generally react with a polite tolerance, a kind of in ward yawn: so what else is new? This attitude, regrettably, fore closes discussion and feeds on it self. We seem to have forgotten that basic liberties are at stake. Most people I meet appear to take it for granted that persons who own land have no inherent rights to do anything with it except what government will allow. That notion, however" is totally incon sistent with the ideals of a free so ciety in which people should be able to do as they please unless their acts clearly harm or interfere with the liberties of others.

1976 A FREE SOCIETY 99 That is the nature of freedom. The exercise of freedom is' mean ingful only when it involves unpop.;. ularactions or expressions. Obvi 0usly there is never a problem in engaging in conduct everyone ap.:. proves. But this infrequently oc curs inasmuch as people differ greatly in interests and desires. In a free society, consequently, free..; dam should only be limited when its exercise actually diminishes some one else's freedom; surely not when it is merely contrary to the will of a majority. By that standard, freedom in the use of property 'has vanished' in most of this country since those who control zoning do not have to justify it on any such grounds. In fact, there is little restraint on the zoners; often they can do as they please. Contrast this with treatment of the press. Unless they libel some one, that is, inflict serious and measurable damages, publishers are largely free of controls. Had the same individuals chosen a busi ness involving use and development of property, their freedom would have been severely curtailed. There is plainly a different standard op erative in the distribution of free doms. Yet liberty, we are told, is not supposed to be divisible.

Our social order has been in flux in recent years as more people who claim they have been denied them, obtain "equal" rights~ Personal freedom has been a critical issue of our times. Nevertheless, a' reverse course has been followed on the ownership of property. Rights of property owners have been steadily eroding due to greatly escalating zoning restrictions. Probably the strongest, support for property rights comes from the grass-roots. One can predict that in referendums affecting property in terests such as those on zoning, ur ban renewal or environmental re strictions, a majority of average and moderate income people are likely to vote against the position that restricts private property. While much of this can be ex plained on the basis of the harm such laws cause poorer people, these actions also stem from a belief in the right of the individual to own and use property. This feeling differs substantially from that held by some large de velopers who tend to view zoning as a game of politics and expedi ency. Their attitude reflects the pragmatic wisdom of our times that puts property rights on the block. Many small property own ers live in a less sophisticated world, and for them zoning is any thing but a game; it is more a tyranny of government.

A definition of tyranny found in the dictionary is "arbitrary or un restrained exercise of power."

100 THE FREEMAN Feb1"ua1"Y There is no more apt description of what occurs under zoning, where the rules are set and reset at the will or whim of the local council. When the zoners remove hundreds or thousands of dollars of value from property, the effect is com parable to a fine imposed against the owners in that amount - ex cept the latter have committed ab solutely no offense. However you refer to it, there is something terribly wrong when persons have to appear before local officials and plead for the opporLincoln on Power tunity to use their property as they deem best. It is a demeaning procedure. The owner must care fully consider how to speak, act, look, dress and whom to hire. Per haps it doesn't matter, but there is too much at stake for most to risk it. These officials are intended to be servants, not masters of people. Election or appointment to an of fice having zoning authority carries with it awesome power over other human beings. It has no place in a free society. ~ IDEAS ON LIBERTY TOWERING GENIUS disdains a beaten path. It seeks regions hitherto unexplored ... It thirsts and burns for distinction; and if possible, it will have it, whether at the expense of emancipat ing slaves or enslaving free men. Is it unreasonable, then, to expect that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time spring up among us? ...

Distinction will be his paramount object, and although he would as wilHng"ly,perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling duwn. When such an one does (spring up among us), it will require the people to be united with each other, attached to the govern ment and laws, and generally intelligent, to successfully frustrate his designs. From an address before the Young Men's Lyceum, Springfield, Illinois, January 27, 1837.