Alternatives to Zoning: Nuisance
Defenders of exclusionary zoning argue that if that institution is eliminated, neighborhoods will be overrun with multi-family housing. Children will no longer be able to ride their bikes because of increased traffic, denser housing, and a myriad of other ills. Zoning, they claim, is necessary to have the kind of neighborhood that they desire. Non-coercive nuisance laws can address these issues.
Many individuals may not want to live near apartment buildings, condominiums, and other multi-family housing, and that is understandable. But this can be accomplished without the coercive measures that are an inherent part of zoning. Non-coercive means are regularly used to create and protect neighborhoods.
Nuisance law has its roots in common law, and it holds that a property owner has the right to the peaceful use of his property. A neighbor who blasts loud music at midnight or sends noxious smoke into a neighbor’s yard is preventing others from peacefully using their property. But loud music and noxious smoke are not, in and of themselves, a nuisance. Context matters.
An action may constitute a nuisance in one context but not another. For example, if you use your grill in your back yard, you will likely generate some smoke. But the amount of smoke is unlikely to impact your neighbors. However, if you build a fire that sends plumes of smoke into your neighbors’ yards, you have created a nuisance. That same bonfire in the middle of 1,000 acre ranch will not negatively impact anyone.
In each of these examples, the same action occurs—generating smoke. But in two instances, the smoke does not prevent others from using their property and is not a nuisance. Nuisance laws allow individuals to use their property as they choose, so long as they respect the freedom of others to use their property as they choose.
In contrast, zoning prohibits certain types of land use regardless of the context. Indeed, zoning was first presented as a way to eliminate nuisances while ignoring the contextual nature of nuisance. Zoning became a blanket condemnation of certain types of land uses. Commercial activities, for example, are prohibited by single-family zoning, even though such uses are often unobtrusive and even welcomed by nearby residents. Many homeowners would welcome a veterinary clinic, dentist, or mechanic within walking distance. Exclusionary zoning makes this impossible.
To illustrate the potential benefits of commercial activities near neighborhoods, my mechanic has a shop less than 100 yards from my front door. The shop opens at 8 and closes at 5, so it is not disturbing nearby homeowners at night. For me, the location is very convenient. I can drop off my truck in the morning, walk home, and then walk to get it later in the day. I spend about ten minutes on the entire process. On the rare occasions that I must take my truck to the dealership, I spend a lot more time and have to arrange for a ride from the dealership or Uber.
Commercial activities, like my mechanic, do not necessarily create a nuisance or violate anyone’s rights. Short-term rentals (STRs), such as Airbnb, are an example. Many homeowners object to STRs, claiming that they are nothing but “party houses.” They want to ban or severely restrict STRs, often via zoning laws.
If the tenants of an STR play loud music late at night, throw trash around the neighborhood, or disrupt neighbors’ right to the peaceful use of their property, then a nuisance has been created. The tenants should be prosecuted. If an STR owner repeatedly allows his property to serve as a party house, then he too should be prosecuted. However, if the tenants are quiet and respectful of the neighbors, there is no nuisance and no rights have been violated.
Unlike zoning, nuisance laws respect property rights. Unlike zoning, nuisance laws are non-coercive. They recognize a property owner’s right to use his land as he chooses, so long as he doesn’t disturb others. When property owners are free, they can and will find innovative ways land uses that uses deemed “incompatible.”
When the demand for housing in a neighborhood increases, but the supply is artificially restricted by zoning, prices will rise. But if the supply can keep pace with the demand, prices will moderate. Freed of the arbitrary restrictions imposed by zoning, housing producers will find innovative ways to build unobtrusive housing where people want to live.
Nuisance laws don’t prevent individuals from playing loud music or generating obnoxious smoke. But they do provide an objective way to prosecute those who do not respect the rights of others.
Many don’t want to live near any form of multi-family housing or commercial activity. They want to live in a single-family neighborhood. There is a non-coercive way to achieve this.