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ARTICLE

Zoning Laws: The Case for Repeal

JULY 01, 1972 by DAVID MANDEL

Mr. Mandel is a practicing lawyer in New York City. This article is reprinted by permission from the December ¹97¹ issue of The Architectural Forum. Copyright ¹97¹ by Whitney Publications, Inc.

It is my argument that an analysis of our experience with zoning laws since the passage of New York City’s comprehensive zoning code of 1916, the model for most of the zoning codes of the United States, compels the conclusion that zoning laws do not accomplish what they were supposed to accomplish, that their premises are faulty, that zoning is an irredeemable failure, and therefore, that zoning laws ought to be repealed. The argument is made with special reference to New York City but without limitation to it or to metropolitan areas.

A proposal to repeal any 20th century social regulatory legislation is usually greeted with a sharp intake of breath and then the muttered pejorative, "laissez-faire." Zoning codes, an expression of our desire to act rationally and to use the tools of modern science to respond to human needs, have until quite recently been generally regarded as immune from fundamental attack. In the last few years even the most passion-ate admirers of the idea of zoning have noticed that zoning laws are not entirely benign. The time is ripe to consider afresh the premises of zoning and its effects.

A modern comprehensive zoning code draws a map dividing the area into separate use zones, commercial, residential and industrial, usually further broken down into subzones. (The latest New York City zoning code, 1960, establishes 41 types of commercial zones, 12 types of industrial zones, and 13 types of residential zones.) Besides establishing use zones, zoning codes set formulas regulating the bulk arid height of structures within each zone and subzone.

The social value of legislating separate use areas is open to serious question. To be sure, separation of land uses is a natural process that occurs in the absence of zoning. It is natural for businesses to cluster, for heavy industry to occupy certain terrain, for single-character residential areas to develop at certain places at certain times. To the extent that zoning simply recognizes the natural process, it changes nothing and causes no loss. Wherever zoning has operational effect it mandates a use that is not natural (i.e., one that would not occur in the absence of zoning) and perforce it mandates an unnatural allocation of resources that tends to impoverish the total community. In contemporary terms, it is bad ecology.

It is bad ecology partly because it regards the interest of some proximate land users as the equivalent of "the general interest." The entire organism, the total community, is thrown out of balance for what is presumed to be the interest of a local part. Assume, for instance, that an area is zoned for one-family homes, minimum lot size one-half acre, and that a builder proposes to build a high-rise apartment building on a part of that area. The proximate land users, or even only a majority of them, want zoning restriction as protection for their interest in maintaining "the character of their community." But protection of their interest means a loss to the owner of the land, an injury to his interest; it deprives workmen of jobs; it deprives the potential apartment dwellers of the opportunity to rent or buy quarters that they might want and be willing to pay for. It prevents concentrated use where concentrated use is indicated by the willingness of someone to risk his money and consequently condemns a greater quantity of land to development in order to house the same population.

Is It Fair?

One may also question the fundamental fairness of allowing the residents of subdivisions to use the political process to insure that their neighbors will not live in apartment houses or be less affluent than they, or will not construct homes appreciably smaller than theirs, or build a factory. In effect, zoning grants to a local majority the right to exclude which is the essence of ownership.

The rationale for allowing B to exercise rights of ownership over A’s land ought to be found in the impact to B of A’s proposed use of A’s land. Any use that A puts his land to will have some impact on B. On one end of the scale are those uses that palpably impact on B, those uses that may be thought of as "overflowing uses." When A creates noxious smells that waft over to B’s land or A creates noises that substantially disturb B, A is really using not his own land but B’s. The fairness of allowing B or a governmental agency as representative of B, to restrain A from overflowing use seems clear. Traditionally such conduct is controlled by the law of nuisance, civil and criminal.

The case is otherwise where A’s proposed use has "minimal" impact on B’s enjoyment of his land. Then the Common Law is neutral, confessing its inability to judge, absent overflowing use, whether there is greater merit in A’s proposed use or in B’s demand that it be restrained. Since in this example it is impossible to discern rationally whether there is more merit in one course or the other, the basis for zoning’s claim to fairness must rest elsewhere than in its ability to balance competing interests fairly.

Restraining the Majority

It is in the employment of the political process, the will of the majority as expressed by a fairly conducted vote, on which zoning’s claim to fairness must rest. But to equate "majority rule" with "fairness" or "democratic process" is terribly inexact. We may assume that "majority rule" is fair when applied to the political process (although its best justification is practicality, not fairness). But we are bound to conclude that the hallmark of the democratic state is its restraint in applying the political process to the activities of its citizens.

Since zoning is only one of a host of forces shaping land use it is difficult to measure its practical effects. There certainly is no evidence that the introduction of comprehensive zoning has improved the amenities of cities and substantial evidence that it has reduced them.

Changing Technology

The draftsmen of the 1916 zoning code of New York City began their work in 1913 and it lasted without substantial revision until 1939. Like all zoning plans it was drawn in the light of technology generally available some years earlier and it was addressed to problems set in motion decades or centuries earlier and then apparent. The decent motives of those draftsmen and their competence are unquestioned but their forward vision had to be small. Their image of the ideal city was heavily tinted by their memories of a more bucolic arid less populous city of their youth. They were constrained to project the future as a virtually straight-line extension of the past. They simply could not (nor could anybody else) anticipate and plan for the tumultuous events of the next 23 years: United States entry into World War I, the virtual cessation of immigration after 1924, the Great Depression, the ubiquitous and ferocious automobile, air-conditioning, the supermarket, penicillin.

Clouded Crystal Ball

The planners’ cloudy crystal ball, focused on the presumed unhealthiness of the towering office building, engendered the zoning ziggurats, the wedding-cake buildings that mar the horizon without lessening congestion in any meaningful way or adding to the comfort of office workers. The zoners’ fondness for and familiarity with row houses and their evident antipathy to tenements promoted the construction and the retention of smaller houses. Dwellings adequate according to the standards of 1919 or 1925 but decrepit and dilapidated 30 or 40 years later often cannot be restored to livability and economic usefulness because of zoning restrictions. Inner city areas are thus condemned to total devastation before rebuilding can begin. Neighborhoods that might have survived in changed but recognizable form are totally obliterated, their diversity and their humanity trucked away with the rubble.

Lack of Flexibility

The consequences of the inherent lack of flexibility of zoning are multifarious. Some land stays idle awaiting industrial use that never arrives. The assemblage of economically buildable parcels is made unnaturally expensive because builders must pay not only for the inherent value of land but also for the value conferred by zoning. Tax rolls are permanently maimed and the economic viability of the city endangered because tax concessions can be extracted for large scale development where small scale and piecemeal rebuilding is hampered by zoning restrictions. Long after neighborhoods have been thoroughly run down and all but abandoned they continue zoned for residential use, the nonresidents thereof protected from industrial incursion. Where zoning’s mortmain prevails, sound residences now too large for single-family occupancy will often decay to total uselessness before a new use as shop, store or multifamily residence is permitted by grant of variance or rezoning. The hub city stagnates while green areas at the city’s fringe or in the suburbs are paved over. Multitudes are condemned to commuter trains who, but for zoning, might have lived in comfort close to their work.

Freedom Encourages Excellence

One of the goals of zoning was a better-looking city. Sadly, the goal remains unrealized. Zoning provokes monumental errors. Dissatisfied with the wedding-cake structure induced by the previous code, misled by the fortuitous excellence of Lever House and the Seagram Building, the 1960 code draftsmen granted height premiums for deep, ground-level setbacks. The result: Sixth Avenue, lined with surly, remote towers disdaining mere commerce, without a drug store or a delicatessen, inhumanly neat, without shelter or human scale for three-quarters of a mile.

Repealing zoning is no guaranty of architectural excellence. One thing is certain, ugly buildings will continue to be built. But architectural excellence is encouraged by freedom not by conformity to stale committee judgment.

Variances and rezoning are insufficient remedies for zoning’s rigidity, its basic conservatism. Both do add some flexibility; both are objectionable. Proceedings for variances from zoning’s rigors, limited in scope to begin with, are expensive and time-consuming. They are a potent source of graft and neighborly extortion. Spot rezoning is so patently unfair it is unconstitutional. Comprehensive rezoning has to be so infrequent that it adds only minimal flexibility. "Discretionary zoning" is undisguised tyranny.

A Proper Blend of Uses

Has zoning increased the amenities of the city by legislating the separation of residential, commercial and industrial use zones? In much of New York City an observer uninformed of the existence of such zoning would be hard pressed to discover it for most areas exhibit a blend of uses. In much of Manhattan, for instance, the separation is a matter of a few feet, around the corner, across the street. Even so, Park Avenue between 59th Street and 95th Street is no more pleasant and a lot duller without stores and offices than Madison and Lexington with them. In mid-Manhattan and for certain people, at least, the quality of life is not diminished by proximity to commercial activities and may even be enhanced by it. Vertical separation is sufficient for comfort. Indeed, the City of New York has recently begun to encourage the construction of buildings with offices and stores below and apartments above, an arrangement that zoning restricted for 50 years.

The minimum conclusion is that a blend of commercial and residential uses does not by itself make for unpleasant living.

Residential and Industrial

The compatibility of residential and industrial use turns entirely on the question of overflowing or nuisance use. There is otherwise no categorical answer to the question of whether the operation of a factory at any spot on a map will diminish the amenities of a nearby residential area. Zoning treats the problem of overflowing use in the grossest terms, quarantining the patient instead of trying to cure the disease and coincidentally creating enormous traffic problems by confining factories to remote areas. To assert that this quarantine approach of zoning has contributed to the intensity of our present pollution problems is not wrong. Governmental coercion ought to be directed at compelling factories to confine their business to their own land so that they are unobjectionable neighbors wherever they are. The quality of life is not and ought not to be dependent upon legislative separation of residential and industrial areas.

Zoning’s bulk and height limitations turn out to be equally irrelevant to the quality of life. People can live and work in very large buildings in great comfort and in smaller ones in squalor; the contrary is also true.

Old Problems Remain; Zoning Brings New Ones

From these conclusions one further conclusion can be drawn. The unlovely city is not caused by a lack of zoning and is not helped by zoning. Zoning simply creates a new set of problems.

No zoning plan can be devised that does not exhibit the deadly defects of the zoning plans dealt with here. Zoning plans face the problems of the future with the full confidence that they can prevent 1915 or 1938 or 1959 from ever coming back. They are and have to be drawn in the light of old technology, old resources, old problems and old ideas. They are inherently inflexible, unable to adjust to new technology, new resources, new ideas, new needs. Zoning plans can confer order, but the order is the order of the cemetery or Williamsburg. Zoning, like all ecosystem modifications, itself produces effects unforeseeable when the plan is made. The greater zoning’s scope the greater the chance that these unforeseeable effects will cause monumental and persistent harm. To argue that the huge size and complexity of modern cities make imperative the imposition of zoning is quite untrue. The larger and more complex the ecosystem the less likely that it can be controlled by plans set years before.

After a half-century of comprehensive zoning in an era of increasing regulation it may be somewhat hard to accept the idea that places can flourish without zoning, but they always have and they do so now.’ For all these reasons I conclude that the most acceptable order of land use will arise without zoning just as the public press will have its most acceptable order without censorship.

 

¹ Though my grandfather warned me that "’for example’ is no proof," interested readers are directed to examine Houston, Texas, which has never been zoned and which is the subject of an admirable article by Bernard H. Siegan, "Non-Zoning in Houston," Journal of Law and Economics, April, 1970.

 

***

Incompatible Systems

By definition, zoning is an interference with the right of ownership. When an owner of a property may use such property, consume it, give it away, exchange it — all as he wishes — that is ownership. Zoning reduces his latitude of action by political restrictions that prevent certain possible uses and require others. Zoning and owning are different systems of determining land use. Either the land will be privately owned and its use determined by the owner to his greatest satisfaction from the choices available to him in the market place, or the land will be used as directed by government.

Zoning and owning are incompatible. Since the former is an interference with ownership, zoning at best is a "respectable" mid-twentieth century form of theft of an owner’s right to own. Whenever the right to own is removed, restricted, or eroded in any manner, society declines toward a lower level of economic goods that is matched by a lower level of spiritual and moral values.

From "Zoned or Owned?" by JOHN C. SPARKS

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July 1972

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