This was originally posted on Live Oaks on November 17, 2009. Comments have not been migrated.
One of the primary justifications for zoning is to prevent “incompatible” land uses, such as keeping industrial facilities out of residential areas. Such “incompatible” uses are regarded as an inherent nuisance, and rather than wait for the nuisance to occur, the use is banned as a pre–emptive measure.
In Euclid v. Ambler, the Supreme Court case that found zoning constitutional, the court ruled:
The harmless may sometimes be brought within the regulation or prohibition in order to abate or destroy the harmful.
While acknowledging that zoning can sometimes harm the innocent, the court found this acceptable. After all, you must crack a few skulls to make an omelet.
Apparently, government officials found it too much trouble to address actual nuisances. That would require a careful analysis of the facts. They found it much easier to simply cast a wide net and lop off the head of whatever they happened to reel in.
Nuisance law is one of the least understood aspects of property rights. Derived from common law, nuisance laws are founded on the premise that an individual has the right to the peaceful enjoyment of his property. The actions that create a nuisance are not inherently a violation of property rights, but the time and place of their occurrence makes them such.
For example, playing loud music does not necessarily harm anyone. If you have a soundproof room in your basement, the volume of your music is unknown to anyone else. However, if you set up your stereo on your back porch and blast AC/DC at 130 decibels at 3 AM your neighbors will be negatively impacted. (Unless of course, your neighbor happens to be Angus Young, which is highly unlikely.)
To declare certain land uses an inherent nuisance is to ignore a multitude of facts:
- A nuisance is an actual event, not a potential event.
- Value judgments presuppose a valuer. To declare a particular land-use “incompatible” is to declare it bad or harmful. Bad or harmful to whom?
- Individual’s values are not monolithic. They make choices based on their personal interests, values, and desires. Sometimes–such as when they have a low income or no vehicle–they may make choices that others find questionable. They may choose to live in a commercial area because of cost or ease of access to shopping.
- When individuals are free, they find innovative solutions. Zoning officials for example, might find auto repair shops inherently “incompatible” with residential areas because of the noise and fumes they might generate. But a shop owner might limit his hours, or install barricades, or take other measures to eliminate a potential nuisance if he believes that the potential benefits justify the expenses.
- The owner of a parcel of property has a right to continue his use, even when the use of adjacent land changes and his use becomes a nuisance. This is the doctrine of “coming to the nuisance”. If I own a pig farm and you build a home next door, you cannot complain that the odor is a nuisance, for you “came to the nuisance”.
- The market is dynamic and the “best” use of a parcel of land can change over time. What seems appropriate for single-family homes today may be more economically beneficial as multi-family tomorrow.
By restricting land-use, zoning prevents individuals from making decisions regarding their own life–such as living in a commercial district–by limiting the options and choices available. New ideas–whether methods for preventing a potential nuisance or changing land-use–cannot be implemented.
While nobody is openly clamoring for zoning in Houston, there are plenty of busy-bodies who are pushing similar agendas. The entire “neighborhood protection” movement is founded on similar premises, and seeks to use government coercion to impose zoning-like controls on developers and property owners. As with zoning, such regulations punish the innocent by declaring certain types of land-use illegal, even when such use has and will not violate anybody’s rights.
Indeed, Mayor White has been using the cloak of nuisance laws in his rampage against sexually-oriented businesses. He has launched a war against apartment complex owners, subjecting all to more regulations because of the actions of a few. He has happily sacrificed the harmless in order to abate what he perceives as the harmful.
If such a principle is applied consistently, the actions of some individuals can be used to justify controls on all individuals. If it is proper to punish the innocent for the actions of the guilty, then virtue becomes one’s enemy. Virtue no longer serves to further one’s life, but becomes the source of one’s misery.