As a result of my first article, In Defense of Zoning Laws, I was criticized by many people for my view that a local government should be able to regulate property within its jurisdiction given specific sets of variables that may affect the lives of adjacent taxpayers or residents. In this article, I seek out to refute those criticisms and make counterpoints in regards to them.
“Private lawsuits would not be zoning, but torts.”
I didn’t specifically mention that lawsuits would be the exact same as zoning. My exact quote was that if I was to win a lawsuit against another property owner in a voluntary society over their use of property deleterious to me as an individual, it would therefore “[enact] a form of private zoning on the individual level.” I believe the argument here is more based on semantics than any real difference in opinion. Multiple lawsuits of this nature would set precedents, so, in a sense, they would become a patchwork of privately mandated regulations; a form of private zoning.
Another issue that those who disagreed with me raised was that local laws on zoning would be used to curry favor and capture market share, an issue I addressed in detail in my article, and mentioned how the zoning laws I was referring to- being based around the use of a property that could potentially affect a sensitive aquifer and the local infrastructure – are not the type of zoning laws or licensing requirements brick and mortar restaurants have used as a weapon against the proprietors of food trucks in cities like Chicago or Washington, D.C. In an area like McHenry County, Illinois, I hardly think that someone else with intentions to establish a horse-racing track, in an area that’s zoned predominantly for agriculture and not commercial use, has been pulling the strings of the local zoning board to potentially cease the activity at the Tomlin Road Raceway in order to enrich themselves. Therein distinguishes the difference between the zoning laws they mentioned (which I vehemently disagree with) and the zoning laws I made reference to in my article, which I feel are necessary.
Judge Andrew Napolitano, constitutional scholar states in his 2011 book It Is Dangerous to Be Right When the Government Is Wrong the following:
“Common law limits free use only when a use unfairly invades the property rights of others. The law calls this a nuisance.”
Among other things, doesn’t the contamination of groundwater in an agriculturally zoned area constitute an unfair violation of property rights, especially in that the neighbors of the proprietors of the horse track actually do farm and their crops could be affected? Does the noise, light, and overflow parking not constitute as a nuisance? Would the people who took issue with my stand on the issue still have the same disagreements if they knew all of the variables?
One last point I will make is that those who disagreed with me need to consider that local decision-making is much preferable to decision-making on the state or federal level. Just as the Founders wanted the states to be laboratories of democracy under Federalism, shouldn’t localities be laboratories of democracy, as well? Those who disagree with certain laws in regards to their ventures are free to vote with their feet to find a place more suitable to their needs, just as the proprietors of Tomlin Road Raceway should find a larger piece of land in an area that is zoned for commercial use. In this way, capital can be allocated in a more economically sensible way based on how parcels of land are zoned given the local variables and infrastructure.