Machan’s Archives: Zoning versus Private Property Rights

Tibor R. Machan

Among the elements of a free society looms very large the institution of private property rights. It is this element that gives concrete, practical expression to a citizens right to liberty. The reason is that living free means doing what one chooses to do someplace, connected to the world around oneself. John Locke, the major theorists of individual rights in the history of political thought, believed that private property rights punctuate our jurisdiction over our lives since what our lives amount to is to a large extent interacting, mixing our labor, with the rest of nature. If we lack the right to private property, we lack the freedom to live on our own terms. Although he wrote that God owns everything, he also believe that God gave it all to humankind and the principle of private property rights served as the best rationing device henceforth.
No one who defends freedom suffers from the illusion that free men and women always do what is right. And this is true about how they make use of their property. But in a genuinely free society that is one of the troubling yet unavoidable conditions of living with others people. Just as one is, so are others free to use what belongs to them as they judge proper. If this is undermined, so is human freedom.
One of the areas in community life where this element of freedom is often evaded and opposed is the institution of zoning ordinances. Zoning amounts to the regulation of one’s use of one’s land and home and business in favor of how others prefer. In a democratic society these others are usually representatives of the majority, although very often they become nearly independent agents who can dictate the ways land and buildings must be built, decorated, rebuilt, and so forth. Historic preservation groups lobby incessantly to rule us in these regards. The basic reason for this as for most other violations of private property rights has to do with protecting the members of the majority from the choices of members of the minority, choices that the majority would find objectionable. Thus the typical announced objective of a zoning ordinance is to preserve the styles that majority of the community prefers within a neighborhood and to keep out undesirable colors and architectural styles, not to mention business establishments and life styles.
All this is usually put in terms of establishing and maintaining community standards, of course, as if there were such a thing as the community apart from all of its individual members. But there isn’t. So some members of the community decide for all the members whose private property will be used, like it or not. In effect, of course, this means the abolition of private property rights, that great goal that was first on the list of Karl Marx’s and Frederick Engels’s Communist Manifesto. Sure, defenders of zoning laws will insist that they simply want to protect the private properties of members of the neighborhood, against those who would undermine property values and the desirability of the vicinity as a residential, commercial or industrial region. However, whatever their motives, these defenders are still working to undermine and have been succeeding at undermining the institution of private property rights.
A right is a freedom to do what one wants, be this good or bad, provided no one’s rights are violated in the process. Freedom of speech, for example, means one may say anything one wants that amounts to speech, provided it does not violate another’s rights. What is said could be filthy, false, offensive, unwise, and so forth. But free mend and women may not be stopped from speaking out whatever the quality of their speech.
Now perhaps it appears to many that freedom of speech is more important than property rights but this is easily disproved. Indeed, without private property rights, there cannot be freedom of speech. The community would own or control all places where things could be said and published and thus, also, what can be said and published. (This is why, for example, government can regulate television and radio content but not that of magazines and newspapers. They own the electromagnetic spectrum on which broadcast signals travel!)
But perhaps in the case of certain kinds of property, such as land and buildings, the borders between what one person owns and others own cannot be determined, so there really cannot be any private property rights applicable in such spheres. There seems to be something to this mainly because many people think that when they own a piece of land or a house, the surrounding views also belong to them – or at least they ought to have a say as to what happens to whatever is in view. But this is clearly false. If one’s neighbor is a nice looking person but then decides not to remain nice looking, one has no right to stop the person from changing, however disappointing this may be to one. Indeed, this is true about another’s automobile, backyard, and so forth. And that should be the model on which to base our understanding of private property – those who own it must have control over it, otherwise they aren’t free persons but belong to other people who claim to represent the community.
So what now? If zoning ordinances violate certain valid principles of a free society, how can one nevertheless work to keep one’s neighborhood presentable? How can one influence, if not control, other people so that they do not make the neighborhood unpleasant and allow it to deteriorate?
OK, so far I tried to show in rather general terms why zoning laws are inconsistent with a free society’s principles, in particular with the principle of private property rights. Basically they amount to impositions by some people on others of conditions for using property that are the owners’ proper, justified authority to determine. No one has that right, however tempting and desirable it may appear to imagine otherwise.
But what about the perfectly honorable wish to have a nice neighborhood in which to live, work and play? How, besides by means of zoning ordinances, could people protect their neighborhoods?
Before answering this question it must be noted, quite emphatically, that zoning ordinances by no means achieve what their advocates claim justifies their use. In many communities, indeed, that have stringent zoning ordinances there are neighborhoods that are a mess, to put it mildly. Especially right where the zoning provisions change, say from commercial to residential use, the areas are usually in a deteriorating condition. That is where buildings are usually dilapidated, shabby. And it is usually those who lack political clout who must live there.
In more general terms, by no means is the institution of zoning laws a panacea. Just as with the welfare state in general, which simply shoves around the misery it aims to eliminate, zoning laws, too, are mostly an expression of special interest clout. A drive through any of the heavily zoned communities will demonstrate this right away.
In fact, the record of the institution of zoning as far as making areas of residential, commercial and recreational living orderly and pleasant for all is by no means a good one. Let us look at this briefly, without entering the ample scholarship that exists on that topic. (But anyone wishing to check for detailed studies can examine William A. Fishel’s works, The Economics of Zoning Laws : A Property Rights Approach to American Land Use Controls, Regulatory Takings : Law, Economics, and Politics, Do Growth Controls Matter? : A Review of Empirical Evidence on the Effectiveness and Efficiency of Local Government Land Use Regulation, The Economics of Zoning Laws : A Property Rights Approach to American Land Use Controls, and Land Economics : Private Markets Public Decisions, as well as Bernard H. Siegan’s seminal book, Land Use Without Zoning.)
For one, there is a city in the USA that has enjoyed freedom from zoning and has worked pretty well while it lasted. It is Houston, Texas. No disaster, no catastrophe, no mess, no property devaluation, nada. Just a city where what zoning was supposed to achieve had been achieved without it, more peacefully, more through cooperation than through coercion.
Second, a little imagination and history should suffice to teach us all that it is better all around to strive to achieve goals without forcing people to accept what they would freely reject. And this applies as much to education or military service as it does not keeping their neighborhoods in good shape. Free men and women simply do better, on the whole, than do those who are regimented by their fellows, made to act as they do not choose to.
Third, what zoning aims for can easily be achieved through voluntary agreements among members of neighborhoods. Restrictive covenants work to this end wonderfully, provided those concerned make the effort to bring them into play. As with all things, the free approach always appears at first cumbersome – talking someone into a course of conduct takes more time than doing this by beating the person. But in the end the result is much more rewarding – all kinds of political hostilities, vested-interest battles, and politicking in the worst sense of that term can be avoided if agreements are reached peacefully, through mutual effort.
Of course, in most communities this is at best an ideal, but more likely a political fantasy, along lines that abolishing prohibition had been at one time and substituting a private for a public education system is now. But that does not make it any less feasible and right! So in the current dispute about whether this or that kind of zoning ordinance is needed for a community, it is vital that some voices keep announcing what is the truly best solution, after all.
What is needed, once all the infighting has shown itself the fruitless effort it really is, is the abolition of zoning and the institution of market based, voluntary agreements among members of neighborhoods, commercial establishments and so forth to achieve what these members want to achieve. There will, of course, be limits to what is possible – one cannot live in Shangri-La if one isn’t financially equipped to do so; one cannot live far in the woods if one’s budget provides for only an apartment in the middle of town. But within the limits that one must live with in all realms of ordinary life, the solutions reached via voluntary negotiations and bargaining are far superior to those acrimonious ones that are reached via the political process.
Will this be done tomorrow morning at 9 AM? No. But should we stress its desirability and real availability for any community? Yes.