Land-use Regulations and the Ashby High Rise

The following was submitted to the Houston Chronicle by Brian Phillips. It was not published.

Recent events, such as the release of Stephen Klineberg’s newest survey and the controversy over the Ashby High Rise, have provoked a renewed discussion over land use restrictions in Houston. While such discussions are important, they are meaningless unless they address fundamental principles.

Klineberg’s survey found that majority of Houstonians favor increased government control of land use. Politicians and pundits alike are citing this as justification for expanding City Hall’s powers. (See the May 4 Chronicle article, “Zoning’s not the issue for Houston” for the latest example.)

The premise underlying this position is that if the majority agrees to a particular policy, it must be right and proper. And therefore, the dictates of the majority may rightfully be imposed upon the rest of the city.

Some may argue that this is the democratic way. However, America was not founded as a democracy, but a constitutional republic. James Madison wrote, “There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong”.

Thomas Jefferson echoed this sentiment:  “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”  Our Founders understood that democracy was nothing more than a tyranny of the masses.

The Founders sought to protect the rights of the minority from the passions and whims of the majority. They understood that the individual is the smallest minority, and thus they sought to protect the rights of individuals.

The right to property—the right to own, use, and dispose of material values—is one of the most fundamental rights. The right to property means the right to use your property as you choose, free from the dictates of others. (You may not use your property to violate the mutual rights of others.)

Land use restrictions—not matter what they are called, how they are justified, or the number of supporters—are a violation of property rights. They force the property owner to abide by the dictates of government in the use of his property. He may act, not by right, but by permission.

The current discussion of land use controls has focused on the need for greater planning in Houston’s development. The implication of such calls is that Houston’s growth has been unplanned. Apparently, the demagogues pushing this idea have not heard of New Territory, Cinco Ranch, and many other planned communities around Houston.

In the early 1990s zoning advocates pointed to such communities as evidence that Houstonians want planning. They ignored the fact that there is a fundamental difference between planned communities and zoning. Today’s current advocates of land use restrictions ignore the same fact.

Planned communities involve the voluntary consent of the property owners. Such communities use deed restrictions—i.e., contractual agreements. Zoning and similar land use controls use government power—i.e., coercion. There is a fundamental difference between the voluntary and the coerced.

Advocates of land use controls object to the planning conducted by individuals, and seek to replace it with central planning. They object to the choices make by some individuals (such as the Ashby High Rise), and seek to usurp individual choice with group choice.

The debate over land use restrictions involves much more than dirt and steel. It is about the rights of individuals. It is about the proper role of government.

Houston has traditionally respected property rights. Houston has grown and prospered because it has protected the right its citizens to use their property as they choose. Houston has protected the rights and freedoms of individuals.

Houstonians have an opportunity to retain that proud heritage. Houstonians again have an opportunity to assert their freedom. The debate over land use controls will be prolonged and heated. It is a debate that must focus on fundamental principles. Houstonians deserve nothing less.