Zoning - Smart Growth - Land Preservation vs. Property Rights - Part 2 -

Written By: Jerry Hanson  |  Posted: Tuesday, May 11th, 2010

In the previous article I wrote that I would show that zoning is unconstitutional. I suppose it is a moot point in that the Supreme Court ruled in Euclid v Ambler Realty that zoning is not a "taking" and is therefore constitutional. But keep in mind that the lower court did rule that zoning in this case was unconstitutional and three of the nine justices of the Supreme Court dissented. We have to live with the courts decision until it is overturned but that doesn't mean zoning is constitutional. A different set of circumstances and a good constitutional lawyer arguing on different grounds may one day see that ruling reversed.
My point in showing that zoning is unconstitutional is for us to see that it is a government intrusion into our liberties where it has no authority. When enough of us are awakened to these intrusions and we begin to inform our neighbors, voice our opposition, and challenge our local government officials we can mitigate or even stop these violations of our property rights.
On almost every hand we see our government trampling the limitations placed upon it by our federal and state constitutions. Our founding fathers knew that without property rights, true liberty was not possible. Some have suggested that because our founding fathers did not specify property rights in our constitution they fell short of protecting them. Property rights, according to the founding fathers were inviolable and as sacred as life itself. John Adams wrote "The moment the idea is admitted into society that property is not as sacred as the laws of God and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If 'Thou shalt not covet, ' and 'Thou shalt not steal, ' were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free."
The laws of God are just as applicable to government as they are to men and women. If I cannot seize my neighbors property to build a house for myself or forbid him to build a house on his land for himself, the government cannot either, for that is stealing. If I make life difficult for my neighbor in hopes that he'll sell his land to me so I can have it, that is covetousness. When the government does that it is "zoning" or "land preservation" or a "conservation easement." No, it is covetousness. If you think the current government doesn't covet your land, you better open your eyes. More on that in future issues.
If property rights were an oversight by the framers of of the U.S. Constitution, they were not of those who framed our state constitutions. Two examples will suffice. Article 1 Section 35 of the Constitution of the State of Alabama reads, "That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty and property, and when the government assumes other functions it is usurpation and oppression." Article 1 Section 14 of the Constitution of the State of Wisconsin reads, "All lands within the state are declared to be allodial, and feudal tenures are prohibited...." I have asked several Wisconsin legislators and county officials to explain this phrase, none of them could even begin to explain it, and most didn't even know it was in the Wisconsin constitution. The word "allodial" means "Held in absolute ownership." What is "absolute ownership?" Absolute means, "Free from restriction, qualification, or condition >absolute ownership>." (Black's Law Dictionary 7th Edition).
Zoning does indeed cut out the heart of liberty. Zoning ordinances have been used to deny Christians the liberty to hold Bible studies in their homes. Zoning has been used to prohibit a local man from building a house on a scenic knoll of his property. Zoning ordinances are used to ban pick-up trucks from being parked in driveways. Zoning regulations in some cities prohibit homeowners from having a home offices, or there is a home-office code that requires the homeowner to pay a hefty permit each year. These examples are just the tip of the iceberg. In one community zoning regulations stopped a church from offering classes in Bible that would go toward credits for a degree in ministry. Zoning regulations routinely take away one persons liberty to inflate another persons property value. To one degree or another, the politically well connected can get zoning ordinances enacted prohibiting almost anything, and mandating almost everything. This is the slippery slope foreseen by Supreme Court Justice Willis Van Devanter in his dissent to the Euclid v Aambler Realty, decision "The plain truth is that the true object of the ordinance in question is to place all property in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit [the community]."
Zoning opens the door for bureaucrats to manipulate land and home values thus increasing their tax revenue while minimizing the need for additional infrastructure. This produces distortions in the housing market and creates perverse incentives.
Zoning laws are an affront to human dignity and charity. Zoning laws presume that a man will not act in the best interest of himself and his neighbors. It presumes that a man is too stupid to know how best to use his property. With zoning ordinances, if your neighbor's house is in need of repair or his lawn hasn't been mowed, you just have to call the local bureaucrat and he will issue a citation and fine your neighbor to force him to paint his house and mow his lawn. Wouldn't the Christian thing to do, be to offer your neighbor a few hours of your time to help him get those things done, or is that regulated now too? Whoops! If your not a licensed painter you might be in trouble if you help paint your neighbor's house. Licenses and permits abound. Is there anything you can do without needing permission from the government to do it? Not much!
With zoning regulations a land owner must grovel before the zoning officer like a feudal slave and plead his case to get a land use permit to build a home for his family. You have to beg, bribe, or know someone to get permission even to use your property in a reasonable way that could not possibly adversely affect your neighbors, and even then you can be denied permission. Ultimately, with zoning laws, everyone has control over how you use your land except you.

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