Zoning, Privatization, and Liberty

Muffler Shop

In 1992 The Muffler Shop in Midland was sued by Homer Township for violating an ordinance outlawing more than two unlicensed, nonworking vehicles.

Zoning laws–local rules and regulations that control how private property can be used within a municipal area–often 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 Down–also a landlord–was 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 wasn’t 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 detail.

But doesn’t 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, let’s 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 contracts–to 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. There’s no reason such a mechanism couldn’t provide a private alternative to land use decisions by edict of local officials.

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 flourish–one 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 person’s 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 long.