In Defense of Zoning Laws, Part II

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.

In Defense of Zoning Laws

Should a local government be able to tell property owners what they can and cannot do with their property?  I’d argue that in some cases, yes. In certain areas, reasonable restrictions should be made on what property can be used for. Even in an ideal anarcho-capitalist society, zoning would still exist in that if I didn’t like what my neighbor was doing, or if their behavior was adversely affecting me, I could potentially sue them, enacting a form of private zoning on the individual level. This, in part, is the argument for why pollution would be much less of a problem if everything was privately owned.

Take, for instance, the example of a friend of mine invoking the use of zoning laws for the safety of her community. There are those who have been staging horse races on a piece of land that is inadequate for that type of event, and the runoff resulting from such an event could affect her community’s drinking water. Do I find zoning laws acceptable in this case? Absolutely. As a community that is being affected by such activities, they have every right to make and enforce such laws.

Can zoning laws be abused by businesses to protect themselves from competition? Absolutely.  They have been invoked to defend entrenched interests. But zoning laws in regards to the case I’m referring to are necessary in the name of public safety and fiscal responsibility. Why should all of the taxpayers in the aforementioned community be forced to provide the infrastructure that would be necessary to host a spectator event like a horse race? Why should they be forced to repair the existing infrastructure or natural resources if they were to be damaged due  to their inadequacy, or vulnerability, as a result of this event?

Local zoning laws also give people the option to vote with their feet if they don’t like the laws in their jurisdiction. It is in the community’s best interest  to make zoning laws in regards to the situation within the locality and the type of business that can exist, given the infrastructure and geographical features. In the example I’ve mentioned, the horse track potentially puts the community in danger, given the inadequate infrastructure, the aquifer from which they get their water, and other external considerations that have a greater impact on the residents – impacts that do not solely affect the individual property.

As pragmatic libertarians, we should seek to see small localities empowered to make their own decisions, even if we disagree with those decisions. Ideology oftentimes blinds some people to necessities; until we have a working anarcho-capitalist society, zoning laws should exist, provided that it can be proven with multiple examples that public safety is endangered. Broad definitions are subject to abuse  by those who want to defend their market share, thus care need be taken to ensure that only the people directly affected have the say. While this seems somewhat idealistic, it is no more so than presuming that anarcho-capitalism will take root within our lifetime.

As Saul Alinsky said in his seminal work Rules for Radicals:

“As an organizer I start from where the world is, as it is, not as I would like it to be. That we accept the world as it is does not in any sense weaken our desire to change it into what we believe it should be— it is necessary to begin where the world is if we are going to change it to what we think it should be. That means working in the system.”

If at the local level, we can show people that small groups working together can bring about a favorable outcome for all parties in regards to reasonably limiting property rights based on public safety or local concerns, perhaps they can see the viability of what we want to change the world into.