In 1992 The Muffler Shop in Midland was sued by Homer Township for violating an
ordinance outlawing more than two unlicensed, nonworking vehicles.
Zoning lawslocal rules and regulations that control how private property can be
used within a municipal areaoften trample property rights. Across Michigan, citizens
are going toe-to-toe with their local governments over property rights, individual
liberty, and the seeming capriciousness of some zoning laws and enforcement personnel.
Could privatization provide answers to these zoning problems?
Groups such as Citizens Against Repressive Zoning (CARZ), a Meridian Township-based
non-profit organization, are taking up the cause of private property rights.
Consider these cases cited by CARZ as examples of zoning abuses:
In early 1999, Meridian Township cited Tom Beauvais, owner of "The
Breadsmith," a retail bakery, for flying the Michigan State University flag during
football games. Apparently, local officials viewed this as a type of advertising that
stands outside the purview of local rules. Beauvais, upset that he might be denied the
freedom to express his school spirit, defied orders to take down the flag. He was ticketed
four times and eventually arraigned in court. Had a local judge not dismissed the first
charges and the Township refused to pursue the last of its citations, Beauvais might have
gone to jail.
In Pinegrove Township, CARZ worked to help a Korean War veteran who used his
three-acre parcel to store seven cars, a bus, a trailer with a boat, hundreds of hubcaps,
and aluminum cans. Despite the fact that everything was hidden from public view by an
eight-foot-high fence, the man still was served with "nuisance" papers by local
officials and his cars and other property were seized and hauled away.
CARZ President Jack Downalso a landlordwas cited by the village of
Haslett because a car in the parking lot of his apartment complex did not display a
license plate. Down did not even own the car. It belonged to his tenant, who had scraped
together enough money to buy a car that wasnt running, with the intention of fixing
it when spring arrived. The tenant concealed the car, so the local code enforcer had to
have trespassed in order to ticket Downs.
The problem inherent in having public officials decide how private property will be
used is that lack of ownership discourages a careful, measured exercise of power and
authority. Politicians and government bureaucrats may not suffer the consequences of their
decisions, and may therefore feel more inclined to regulate land use in mind-numbing
But doesnt there have to be some impartial authority that decides which areas may
be commercialized and which may not; which areas can tolerate a particular level of noise
and which cannot? Well, lets think about that. Could such a thing as
"privatized zoning" work?
It could. Already, developers use "deed restrictions"extensive land-use
controls written into their contractsto ensure that their customers get exactly what
they want in terms of building design, automobile use, parking, open space, and other
amenities that make up a neighborhood. These deed restrictions represent a contractual
obligation that can be enforced either through courts or homeowners associations.
People are willing to pay a premium for this legal clarity, because it ensures that the
neighborhood will maintain a certain look. Theres no reason such a mechanism
couldnt provide a private alternative to land use decisions by edict of local
Interestingly, the deed restrictions in many developments are more extensive and
self-limiting than those found in public ordinances. But instead of representing arbitrary
power, they represent voluntary choices made by individuals in competitive markets. Under
privatized zoning, residents and businesses would be the decision-makers. And because they
would be the ones who live with the choices they make, they would be far less likely to
impose unrealistic or silly rules upon themselves or their neighbors.
Unlike municipal ordinances, deed restrictions cannot be forced on people throughout a
community. This would allow "niche" markets to flourishone neighborhood
might not allow dogs; two streets over, another might allow them only on leashes,
etc.where everyone stands a decent chance of finding the type of neighborhood that
best suits their preferences.
Of course, it is easy to see how this might work in new neighborhoods, but what about
older neighborhoods where no such privately instituted restrictions exist? In such cases,
behavior could be controlled through common-law doctrines of trespass and nuisance. In
general, a nuisance is defined as something that interferes with another persons
right to use his own property in a reasonable manner. The advantage of this common-law
approach is that it allows flexibility in determining what constitutes a nuisance.
A common-law approach to land-use disputes (through arbitration, not local courts)
would be superior to municipal zoning in that it focuses on the effects of a
particular land use, rather than the use itself. For example, rather than imposing an
outright ban on businesses in residential areas, the common law would focus on whether the
business caused extra traffic, destroyed the natural beauty, or disrupted the family
atmosphere of a neighborhood. More than likely, the result would be that home-based
businesses run over the computer and the telephone would be allowed. Instead of deciding
which land uses to exclude, people could focus their energies on how to achieve the
maximum freedom while mitigating any nuisances that might be caused.
As zoning rules become more onerous, citizen resistance is creating pressure for an
alternative. The idea of privatization is to transfer assets and services from the
bureaucratic and politicized public domain to the more dynamic private sector. Deed
restrictions and common-law dispute resolution offer two ways this idea can be applied to
zoning and solve a problem that has plagued villages, townships, and cities for far too