The More Things Change…

In 1993, during the final months of the last attempt to bring zoning to Houston, I gave a talk to the Houston Property Rights Association titled “Winning the Battle but Losing the War.” In the talk, I warned that without a moral defense of property rights, we might defeat the upcoming referendum, but zoning advocates would ultimately implement land-use regulations similar to zoning. Unfortunately, while the referendum was defeated, my warning was not heeded.

Today, as in 1993, the advocates of land-use regulations are winning by default. They have steadily and consistently pushed for more controls on land use. With few exceptions, they have been successful because their basic premises have remained unchallenged. Indeed, those premises are so widely accepted that they are now asserted with no attempt to explain or justify them. A recent editorial in the Chronicle (HT:blogHouston) demonstrates this.

The editorial states that “Houston has zoning, if you have the cash.” Citing the recent court case that awarded $1.7 million to home owners near the proposed Ashby high-rise, the editorial argues:

This is no way to regulate development in Houston. These sorts of decisions belong in a planning commission, not a courtroom. Proper development requires predictability, and this court case sets a dangerous precedent for construction at the whim of those who can afford high-priced attorneys. Arbitrary enforcement of tenuous nuisance claims is no way to plan a city.

The editorial concludes by calling for “incentives” to “help guide construction without the burdens of full-fledged zoning.”

The editorial doesn’t tell us what constitutes “proper development.” Nor does it explain why development requires predictability or guidance. Such explanations are unnecessary because most Houstonians embrace the underlying premises.

For decades, we have been told that Houston needs more planning. Planning, we have been told, will allow the city to develop in an orderly fashion, will promote a better quality of life, and cure an assortment of social ills. While many zoning advocates deny it, planning has become the politically acceptable term for land-use regulations.

A plan is a guide to action. A development plan determines what may be built and where, which is precisely what zoning does. To claim otherwise is disingenuous at best.

The advocates of city planning would have us believe that Houston has developed without any planning. They conveniently ignore the planning undertaken by builders, developers, and entrepreneurs, which occurs in response to the demands of the marketplace. They ignore such planning because it occurs by private individuals pursuing their own self-interest, rather than by civic-minded politicians and bureaucrats pursuing the “public interest.”

When the Chronicle speaks of “proper development,” it doesn’t mean the development that occurs as a result of the voluntary choices of businessmen and consumers. Indeed, the paper decries the proliferation of townhomes in the Fourth Ward, stating that they “fit the neighborhood no better than the Ashby high-rise.” That those townhomes provide housing for thousands of Houstonians who want to live close to downtown apparently isn’t “proper development.”

The Chronicle doesn’t want individuals making decisions about their own lives and then acting accordingly. Instead, the paper wants government officials to decide what is best for the collective—the city or the neighborhood. And those decisions will then be forced upon the entire community.

Of course, those government officials will seek the input of citizens impacted by their decisions. They will try to develop a consensus. But we’ve seen where that leads. We’ve seen it during the Ashby high-rise affair. We saw it during the last debate over zoning, when neighbor fought neighbor over zoning designations for property neither owned. And it happens in every city with zoning. No matter what grandstanding occurs, the decisions and plans of the property owner will be subordinated to the decisions and plans of government officials.

The Chronicle won’t admit that it advocates using government coercion to impose the values of some individuals upon others. Instead, it calls for “incentives” to “help guide construction.” It wants City Hall to dangle a carrot in front of developers. But behind every dangling carrot is a stick, and city officials have shown no hesitancy to use that stick to beat on developers. The endless delays forced upon the developers of the Ashby high-rise are but one recent example.

While denouncing the “arbitrary enforcement of tenuous nuisance claims” in the Ashby lawsuit, the Chronicle ignores the arbitrary nature of many of the delays imposed on Ashby’s developers. For example, the city initially approved a traffic study submitted by the developers, but withdrew that approval several days later, supposedly under pressure from then-Mayor Bill White, who had vowed to stop the project.

The proper response to a flawed ruling is to denounce that ruling. Instead, the paper calls for a wholesale expansion of government power. The Chronicle wants us to believe that the rulings in a courtroom are arbitrary, but the decrees of a planning commission aren’t.

I have not studied the lawsuit against the Ashby developers, so I can’t comment on whether the nuisance claims were tenuous. Regardless, that issue is irrelevant. The Chronicle’s position is an attack on objective law.

Under the regime proposed by the paper, a property owner will be forced to abide by the edicts of the planning commission, regardless of the owner’s desires, values, and plans.

As evidenced by every debate over land-use regulations in Houston, the planning commission will be a magnet for noisy gangs seeking to influence the decisions of the commission. While this occurs, the property owner will sit helplessly while others debate his future. His voice will be drowned in the cacophony of activists seeking to impose their plans upon him.

For nearly a century, zoning advocates have claimed that a variety of social ills would befall Houston if zoning were not adopted. And for more than a century, the city’s vibrant economy has proven them wrong. But that hasn’t stopped the chorus. What will stop it is to defend property rights on moral grounds.

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