Zoning Laws

[Michero]

In my area there's a big debate because the owner of a car dealership bought (many years ago) a 12 acre lot of land in our small community. He wants to move his dealership onto that land. Though the area is not zoned for that. Sorry I don't know much about the zoning laws, only that the owner has been trying for nearly a decade to get the area rezoned.

My questions pertain to zoning in general. Is it OK for a town to block out certain types of business. I see the benefits of course, as my house would be right next to the lot--so I'd hear the noise in the day, deal with the traffic and lose the nice view I have now, the lights at night will probably be irritating and the value of my property will certainly decrease. But besides the benefits zoning laws may give me, are they legitimate?

[skap35]

In my area there's a big debate because the owner of a car dealership bought (many years ago) a 12 acre lot of land in our small community.  He wants to move his dealership onto that land.  Though the area is not zoned for that. Sorry I don't know much about the zoning laws, only that the owner has been trying for nearly a decade to get the area rezoned. 

My questions pertain to zoning in general.  Is it OK for a town to block out certain types of business.  I see the benefits of course, as my house would be right next to the lot--so I'd hear the noise in the day, deal with the traffic and lose the nice view I have now, the lights at night will probably be irritating and the value of my property will certainly decrease.  But besides the benefits zoning laws may give me, are they legitimate?

It sounds like the land was zoned to restrict a car dealership before the man purchased the land. If that is the case, I would side with the city. The land was purchased with full knowledge of what it could and could not be used for. So I would make the case that by purchasing (for example) 12 acres of residential land, you are agreeing not to use it for a car dealership.

However, if the land was either not zoned, or zoned for commercial use at the time of purchase and then re-zoned, I would side with the man.

When you purchase land that is zoned residential, you are basically buying it on condition that you will use the land only for residential use. The same applies to any other type of zoning. If you want to use the land for a non-residential use, you don't have to buy it and the seller doesn't have to sell it if you don't agree to use it according to how it is zoned.

[Groovenstein]

Isn't a zoning law basically a finding by the legislature that certain activities in certain areas are nuisances?

If that is correct, then the propriety of zoning laws hinges on two things:

1. the proper scope of nuisance law, and

2. what branch of government should be making what decisions about that.

[Lemuel]

I can't find the "key log" in this issue.

If the issue is simply one of property rights, one would have to side with the car dealer. It's his land, and he wants to expand his business: good for him. I'm not a big fan of zoning laws, i.e. forcing land owners to do what a community (that doesn't own the property) wants.

But, were I in your situation, I wouldn't want stadium lights shining through my window all night, or the indecipherable blare of a receptionist screaming into the PA system for a salesman to come in and get the phone .... Nor would I want a billboard blocking the morning sun, a strip club's neon-dancing-girl-sign ouside my kids' bedroom window, or a helicopter refueling and repair station next to my music studio.

If the dealer does get his way, and you want to get out, be the first to sell your house. Proportionally, you'll get more for it if you're the cause of a neighborhood panic sell, not caught at the end of it.

[DavidOdden]

Isn't a zoning law basically a finding by the legislature that certain activities in certain areas are nuisances?

Is it? I looked into a few zoning laws in Ohio, and they basically don't give any excuse such as "nuisance"; they simply say that it should be "in the interest of the public health, safety, convenience, comfort, prosperity, or general welfare", and the legislature doesn't have any opinion about what that might be. Hence it's not a nuisance to have two-family dwellings in certain parts of town, just illegal. So it's left up to some lower body such as a county council, bord of trustees, city council or neighborhood watch committee (I'm only half kidding about the last one) to decide what kind of land use is allowed (including, what color paint).

[Groovenstein]

Apologies for my lack of clarity. I'll try to rephrase. Basically, what I'm trying to determine is if there can be such a thing as a proper zoning law. If there is, it seems it would be grounded in a nuisance justification.

"No, you can't put a factory here because it's zoned residential" as said by a legislature seems to me to be the functional equivalent of "No, you have to shut down your factory because it's a nuisance" as said by a court.

Is it improper for the legislature to define what constitutes a nuisance? If it is proper, then wouldn't zoning (of some kind, not necessarily in its present form) be a way of doing that?

[Michero]

Thanks for all the replies so far. My primary question--I don't think I phrased it clearly in my original post, was about the morality of zoning laws in general. But I suppose if one knows before one buys property that there are zoning laws and town boards for specific use of land, that it is ethical, since it is an agreement between residents and not forced on anyone. When it becomes ethically questionable is when township try to rezone areas after people have bought property, which isn't fair to people who already live their under the assumption that certain types of activities will not take place in their neighborhood.

[DavidOdden]

But I suppose if one knows before one buys property that there are zoning laws and town boards for specific use of land, that it is ethical, since it is an agreement between residents and not forced on anyone.

I don't see that. By the same reasoning, because you know that you will be taxed if you live in Massachussetts, you can chose not to live in Massachussetts -- so it's ethical to tax; you will be drafted if you live in Norway so you can chose not to live in Norway -- so it's ethical to draft; and so on, with all government power.

Zoning is not an agreement between residents. If I sell a house to you, I may set conditions for selling and you may set conditions for buying, and we know what those conditions are because we can inspect the contract. Furthermore, we can negotiate -- I might drop the price a bit, and you might delete your demand for a new roof. It really depends on what's important to me, and to you. That is what it means to 'have an agreement'. When you buy a house, you do not buy it from 'the residents' or 'the neighborhood council', you buy it from the owner. Only the owner has the right to stipulate conditions on the transfer of ownership.

Zoning is one of the most unethical forms of law that exists (I haven't thought about that carefully, so I'm not sure where in the hierarchy of evils it should go). It is essentially a massive claim on the lives of others, the denial of the concept of ownership, and the epitome of the altruist credo "my wants create a valid claim against your life". My neighbor decided to build a deck, which I can now see from my property. Does his home improvement make my life worse first by despoliating my view somewhat, and second by making noise (because you know that people actually use decks, when they invite guest and family over to enjoy this new deck).

In Seattle, this no-growth mentality resulted in regulations on building high-rise apartment buildings -- the view is generally excellent, no matter where you are, and surely you don't want some scumbag building a building that you can actually see. Ironically, and moronically, this means that the trebling of population had to be accomplished through horizontal development, so good luck commuting. And they are also working to prohibit horizontal expansion.

[Michero]

But we aren't talking about whole states or even cities--just one town. Do you believe that there's any ethical way for neighbors to agree to keep their town a town of houses and not businesses?

I understand what you mean by nobody should be able to tell you what to do with your own property. But what if you want to buy that property because of the zoning law or agreement. Isn't it a fair trade that you agree not to build a business so long as nobody else will within the town?

[DavidOdden]

But we aren't talking about whole states or even cities--just one town.  Do you believe that there's any ethical way for neighbors to agree to keep their town a town of houses and not businesses?

Neighbors can simply agree to this, without there being any legal bond to obey, so if you won't be outraged at an exception, then the gentleman's agreement is a pretty simple solution. The only ethical way to enforce such a restriction is contractually: to make it a condition of sale that the buyer will not use the property for business purposes, or display whatever it is that you wish not to see. This is widely implemented in gated communities, and the relevant concept is "conditions and covenants". The main detail is that you need to start from a kind of tabula rasa, such as 200 acres of unoccupied land that you intend to develop. That way, you can get explicit agreement between all land owners, since it's in the real estate contract that you may not, for example, paint your house pink, or may not park your car on the street, or grow grass, or whatever. The problem is when you impose such a restriction on a peron who does not agree to such a condition. That's why it's easier to convince one person (the developer) that there is a market for such a thing, and then he take a gamble that this is so, dividing the land into lots with such conditions attached to them. Then like-minded people will be attracted to that location. This is more efficient than trying to persuade an existing neighborhood to impose restrictions on their property.

[Cole]

But I suppose if one knows before one buys property that there are zoning laws and town boards for specific use of land, that it is ethical, since it is an agreement between residents and not forced on anyone.

But does the city have the right to enforce economic regulations on private property in the first place- even if they inform a new buyer of the regulations before he decides to buy the property? I'd say it does not have this right, and that it is an initiation of force upon the property rights of the person selling the property and the person potentially buying it.

Consider this example (one of my favorites [used to debunk any type of "Implicit Social Contract" justification]);

There's a vacant house next-door to mine. When potential buyers go to look at it, I inform them that by moving into the house next-door to mine they must follow certain rules that I've created. When a new family moves into the house and refuse to obey my rules, I sue them for breeching the agreement. My argument is that, since they were aware of the rules I set for anybody who moves into the house, and since they decided to move into the house anyway, then this represents an implicit agreement to my rules- which they broke. Do you see the immorality involved here? Do I have the right to set regulations on other people's property? Apply this example to the issue of zoning laws.

[Michero]

But does the city have the right to enforce economic regulations on private property in the first place

No. I agree a city should not have the right to tell people what to do with their own land. The only way something like zoning would be right, is as DavidOdden said if the person from whom you bought the land stipulated use of land in the contract such as in gated neighborhoods. I'm going to do a little research on this further in the coming days, so I can better understand where my town's zoning laws came from and how they are enforced etc.

[skap35]

Consider this example (one of my favorites [used to debunk any type of "Implicit Social Contract" justification]);

There's a vacant house next-door to mine. When potential buyers go to look at it, I inform them that by moving into the house next-door to mine they must follow certain rules that I've created. When a new family moves into the house and refuse to obey my rules, I sue them for breeching the agreement. My argument is that, since they were aware of the rules I set for anybody who moves into the house, and since they decided to move into the house anyway, then this represents an implicit agreement to my rules- which they broke. Do you see the immorality involved here? Do I have the right to set regulations on other people's property? Apply this example to the issue of zoning laws.

Zoning laws are not "implicit rules" as you call it. When you buy a piece of land, the contract says "you are buying 30 acres of commercial land." That means you are buying land that by the contract you are signing may only be used for certain things.

Your argument uses some random guy who is not selling the land and never owned the land. He did not write the contract nor is he a participant in any way. So he has no authority to make rules.

If the contract states that you are buying 30 acres of unzoned land, then I would say that you can use it for whatever you want and can expect that freedom for as long as you own the land.

You can't justify violating a legal contract by saying "it's my land and I'll do what I want." When the contract states commercial land, then you are signing an agreement that states "I will only use this land for commercial purposes." If you don't want the land for commercial purposes then don't buy it.

Now from the seller's position: the government is basically telling you that you may only sell your land only to someone who agrees to use it for the same purpose that you used it for. The only way that I would defend this end of it is that, by purchasing commercial land, you are also agreeing to sell it under certain conditions (i.e. you agree to sell it only to someone who also agrees to use it for commercial purposes).

[Currence]

I'd like to use skap35's rough outline of how zoning laws work to prove how zoning laws are completely immoral.

The government dictates to seller and buyer (well, either both or one individually, but it affects both ultimately) how certain land may be used. But there is an unanswered question: by what right?

Did the "government" or the "people" or the "community" ever own the land? Absolutely not. The land has been owned by individuals and has been purchased by individuals*. At no point in time did any government or community or public official ever own the land and gain the right to dictate the terms of sale and purchase. So, zoning laws? No way, morally speaking.

And to consider a closely related question: what if the actions of a property owner affect the value of another property owner? The answer requires an analysis of the context. If my neighbor paints his/her house pink, or allows his/her lawn to grow absurdly long, or something like that, have my rights been violated? In what way did my neighbor initiate force or fraud (assuming there was no contract expressly forbidding the actions my neighbor took)? There was no force or fraud, and as such, no rights' violation.

If, however, my neighbor pollutes my lawn, or plays music at an absurdly high level, those things do affect myself and my property; that is, they leave his/her property and enter and harm myself and my property. Those are rights' violations.

*There is one exception: government property. In a moral system government property would be used for moral government purposes; anyways, the issue of government property as such (police, court system, military) is irrelevant to a discussion on zoning laws on private property.

[HaloNoble6]

I don't think you fully understand the principle underlying zoning. Granted the only proper role a government can play in this context is contract enforcement, and that the government establishes conditions in contracts between traders is clearly wrong, but this doesn't determine the morality of zoning as such.

When someone buys a piece of barren land from a private seller, they aren't buying the land, per se, they are buying permission to the use of that land, whatever that use may be. The seller, by right, can stipulate any conditions in the sale he wishes, so long as the buyer agrees to them. What of selling plots of land in residential areas or industrial areas?

Nowadays, developers buy tons of acres of land and sell plots to individuals who want to build homes or manufacturing plants. The sale of the land is made upon certain conditions, such as that a home must be built here, the home must be kept in certain conditions so as to not devalue the neighboring homes, etc., or that a plant must be built here, trucks of X weight are prohibited, etc. This is perfectly rational and perfectly moral. Sellers do this because no one would buy a plot of land in a highly industrial district for a home to raise a family, nor will a manufacturing plant buy a tiny piece of land in the middle of a residential district to build a tire plant.

That the government is stepping in and establishing the terms between a land seller and buyer (through zoning requirements and other such things) is clearly wrong, but this doesn't mean that these requirements, regardless of context, are never moral. So while I agree that zoning laws, which are laws that forcebly set the terms between buyers and sellers of land, are wrong, I don't agree that zoning as such is immoral. Perhaps you weren't making this claim, however.

[Michero]

I don't think you fully understand the principle underlying zoning. 

It is something I have never really thought of because as a city girl I'd welcome any business near my home (although I did get a little upset when I found out the process my dad had to go through in order to build a fence on his own property). It was mostly due to my parents' anger about the issue that I began to wonder if their anger wasn't justified. Llike I said I don't think it's right for a gov. to tell a private land owner what to do with his own land, but I can understand why my parents are looking to stop the guy from building a car lot down the street.

So while I agree that zoning laws, which are laws that forcebly set the terms between buyers and sellers of land, are wrong, I don't agree that zoning as such is immoral.  Perhaps you weren't making this claim, however.

I'm not sure I completely understand your distinction here between immoral and wrong. Are you saying that the existence of the zoning laws is wrong, but the citizens trying to use them for their advantage is not immoral?

[HaloNoble6]

No, I'm saying zoning, when done by mutual consent between a real estate devoloper and his buyers, is perfeclty moral, but "zoning laws," are immoral, whether citizens take advantage of them or not.

[Michero]

No, I'm saying zoning, when done by mutual consent between a real estate devoloper and his buyers, is perfeclty moral, but "zoning laws," are immoral, whether citizens take advantage of them or not.

Oh OK. I getcha now.

[DavidOdden]

Your argument uses some random guy who is not selling the land and never owned the land. He did not write the contract nor is he a participant in any way. So he has no authority to make rules.

Exactly. This third party, whoever he is, has no right to dictate to you the terms of your contract. Advertising a piece of land as "commercial" land simply because it has, blessedly, been allowed by the government to be used even for the evil purpose of business, does not in and of itself constitute a contractual obligation on either person's part. Saying that land is "commercial" does not mean that a person cannot put a residence on it, it only means that you can use it commercially. If you can document an instance where a real estate contract ever stipulates "this land may only be used commercially", I will eat my hat.

When a person's right to use and dispose of their property as they wish is abrogated by force -- as with zoning laws -- then the concept "agreement" is utterly irrelevant.

[DavidOdden]

When someone buys a piece of barren land from a private seller, they aren't buying the land, per se, they are buying permission to the use of that land, whatever that use may be.  The seller, by right, can stipulate any conditions in the sale he wishes, so long as the buyer agrees to them.

Where does that come from? Like, is this a general claim about the concept of property and ownership, or a specific one about ownership of land. For example, if I buy a new hard drive, am I buying the drive, or just buying the right to use the hard drive as I see fit? I don't understand the difference between buying something per se, and buying permission to use the thing. The latter suggests to me that nobody really owns anything, we just have permission to use things. Wanna elaborate?

[HaloNoble6]

I'm almost certain this has been touched upon many times prior, but the basic idea is that land ownership is based on the value one extracts or builds on land. For example, people don't own the land their house is built on, per se, they own the house that sits on the land. Land is a fundamentally different sort of thing than hard drives which are products of man's mind. Remember, property rights are rooted in man's rights to the product of his mind, land just is, it isn't a product of anyone's mind, while houses, manufacturing plants, mining extracts, etc., are consequences of man's mind.

[skap35]

For example, people don't own the land their house is built on, per se, they own the house that sits on the land.

So what if I own land and I don't build a house on it? Say I don't use it for anything. Say for example, I just sit on it until property values increase and then I sell it for a profit. Are you saying that since I never put any investment back into the land that I never owned it?

Edited August 5, 2005 by skap35

[Michero]

So what if I own land and I don't build a house on it?  Say I don't use it for anything.  Say for example, I just sit on it until property values increase and then I sell it for a profit.  Are you saying that since I never put any investment back into the land that I never owned it?

I think maybe what he's saying (but I could be wrong) is that nobody really owns the land ever. All you do is hold the rights to use and develop the land, and any developments you did make are yours and your alone to reap the benefit of.

In your example, the investment you made on the land was your mind's effort to know that the land would gain value regardless of you doing anything to it, the original capital you bought it with and the time you spent without selling the property (you could have sold the land earlier and used the money but you chose not to). So it is perfectly right to reap a profit. You didn't create the land but you did create value simply by sitting back and letting time roll by.

[Robspe]

There is also, in my view, a constitutional problem with zoning laws. They are, if memory serves, based on the "police power" imputed to government. But, as with the interstate commerce provisions, this power has been extended out of all recognition beyond "policing" matters to, as has been mentioned, aesthetics and economic development. With the latest Kelo furor, the Supreme Court has essentially said there are no constitutional limits to local governments' power over one's property. It does seem this decision is the last straw and enough people may be outraged by it that the whole question of government control of property uses may be reviewed.

I remember one local zoning ordinance provision I worked with that stated, "All uses not specifically allowed are forbidden". How's THAT for totalitarianism? And that supposedly passed constitutional muster!

[DavidOdden]

With the latest Kelo furor, the Supreme Court has essentially said there are no constitutional limits to local governments' power over one's property.

I don't think that is what they decided. It remains true that there cannot be taking without compensation. In addition, the taking still has to be for a "public purpose", though localities have wide discretion to determine what that means (and of course states have the right to pass laws that prohibit taking for certain purposes, such as building a skyscraper). You cannot, for example, confiscate a man's home for the purpose of enriching the mayor or police chief (or a specific street bum). Due process remains a requirement; you cannot confiscate land (owned by a newspaper, for example) in order to suppress political dissent; I would bet that the courts would also prohibit confiscating land for the purpose of building a church (in contrast to building a shopping mall).