The New Approach to Planning—Nonzoning

An interview with Bernard H. Siegan

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Opposition to zoning grows daily. Two years ago, the Pennsylvania Supreme court ruled unconstitutional a zoning ordinance banning apartment construction in a Philadelphia suburb. Charges of racial discrimination in the use of zoning ordinances has led to increasing questioning by federal courts of the objectives of zoning, if not the principles. It is likely that the U.S. Supreme Court, which has not ruled on zoning since it ruled the device was constitutional in 1926, will reconsider the issue in light of current opposition.

A leading opponent of zoningand whose popularity is a litmus test of the public sentiment against zoningis Chicago attorney Bernard Siegan. Siegan, who has practiced law in Chicago since 1950, studied zoning while a research fellow in Law and Economics at the University of Chicago Law School. In speeches before such groups as the National Association of Home Builders (at its annual convention last year) and in his published works (examples: "Non-Zoning in Houston," in the JOURNAL OF LAW AND ECONOMICS; "The Houston Solution: The Case for Removing Public Land-Use Controls," in LAND USE CONTROLS QUARTERLY) he has become a fountainhead of capitalism amidst the planners' rhetoric. Mr. Siegan coined the term "nonzoning" to describe his position, and this is now standard currency among those who believe in or wish to describe the free enterprise position on land use.

Siegan's "case" is that market mechanisms are more rational and efficient arbiters of land use than zoning. By citing the examples of Houston and other nonzoned communities, he demonstrates in clear, practical applications how free market forces such as simple economics and restrictive covenants (voluntary legal agreements) determine land use patterns in a civilized manner. Zoning, he says, cuts the tax base by holding down the number of multiple family dwellings, contributes to the housing shortage, adds paperwork and years to land use changes, and is used to exclude "undesirables."

Siegan is more than a theorist. Communities like Kalamazoo, Mich. and Pensacola, Fla. have invited him to speak when changes in or new zoning ordinances are being considered. Last year, he urged an Escambia County Commission in Pensacola to restrain from passing a countywide zoning ordinance. After explaining the serious consequences of such an ordinance and the advantages of the marketplace, Mr. Siegan helped persuade the commissioners to allow the proposal to be decided by straw vote. The result was as Siegan anticipated: three months later the zoning proposal was defeated by almost 2-1.

The history of zoning in the United States is briefer than most people think. The big push by cities and states for zoning ordinances occurred about 50-years ago, and the initial push came in 1916 as merchants on New York's posh Fifth Avenue plumped for legislation to protect themselves from what they thought was an onrush of factories. But the legislation contemplated was moderate compared to today's ambitious ordinances, and no one thought zoning would ever encompass vacant land. "It just gathered momentum," says Siegan. However, zoning is so taken for granted in America today, that many people find it difficult to believe that a city the size of Houston has never had any zoning code.

We are at a critical juncture with regard to land use in general, and zoning in particular. A May 1970 HOUSE & HOME editorial points out that zoning prevents "orderly growth" and is "housing's single biggest cost booster." The editorial notes: "With fewer and fewer new households able to buy $30,000-plus houses, the need for higher density land use is greater than ever, and it will increase throughout most of the 1970s."

Many pamphlets which Mr. Siegan has authored are required reading in university classes. His first book, LAND USE WITHOUT ZONING, was published by D.C. Heath (Lexington, Mass.) last September and has provoked controversy among planners from coast to coast. REASON's interview with Mr. Siegan, conducted by contributing editor Dennis J. Chase, was the author's first such extended session (he has been much in demand since the publication of LAND USE).

REASON: Mr. Siegan, land use is suddenly a hot topic. According to the WALL STREET JOURNAL there's a quiet revolution going on and I wonder if this is just the planners squabbling among themselves or if there are any fundamental change taking place in land use.

SIEGAN: The most consistent element that I have observed about planners is the inconsistency of their views. There are a lot of different approaches on land use and most everybody who has made any study of local zoning has found it unsatisfactory for various reasons. And what is happening now is that the conservationists and environmentalists are saying that local zoning is not exclusionary enough, and the land developers and development interests are saying that local zoning is too exclusionary. These two interest groups have united on the one thing and that is that local zoning has failed as far as their objectives are concerned.

However, something may happen which is major: There is before Congress national land use legislation, and that might make a major difference in what's going on in the states as far as land use is concerned. One purpose of that bill is to remove some of the land use control powers of municipalities and give them to the states. It also creates a strong federal presence in land use. However, it's being sold on the basis of the federal government simply seeing to it that states set up land control systems that will remove some of the powers from the municipalities.

REASON: All right. so we'll have states doing what municipalities formerly did. Will that make a major difference?

SIEGAN: No. I think in time it will come out roughly the same way. However, at the present time, because of all of the ecological pressures that are going on and the fact that most states are suburban-rural dominated, the result may be a more exclusionary overall result.

REASON: I would like you to summarize your position with regard to land use.

SIEGAN: I would like to see the government removed as far as possible from control of land usethat is I want the municipality, the state and the federal government removed as far as possible. I'm talking very largely about zoning. There are a lot of other controls. There are building codes, there are subdivision controls, there are traffic ordinances, there are minimum housing ordinancesI think those have to be examined in detail to see the failures on those levels. We already know that on many levels those have failed, in many ways even more grievously than zoning.

REASON: You're not for the abolition of those things however.

SIEGAN: At this point I certainly would like to see them looked into and perhaps some of the serious governmental abuses removed, and whether that requires getting rid of it or not I really can't say at this point.

REASON: What are your major objections to zoning?

SIEGAN: When you give control to government you find that the process that's used by government is a process that really has nothing to do with the use of a valuable resource like land. In the case of land use, what you do is subject the use of land to the political process and political pressures, and when you do that the land will be used for reasons that have nothing to do with the optimum use of the land, with good planning (if I may use that term), and with any rational criteria for use of that land. Use will be determined by who has the political power, who has the graft, who has the influence, who has the multitude of things that causes the political powers to act as they do. I think that is counterproductive to the use of a very valuable resource.

It's not necessary for land use to be controlled by government. It can be controlled by the market quite effectively and accomplish all the zoning objectives. When people say to me that there are bad things happening to the land when private people handle it, it seems to me that the obvious response is to point out the great and enormous waste of land that occurs when political forces which have no relationship to any rational criteria for use of the land are given control.

REASON: Can you cite examples of some undesirable effects of the current land use policy?

SIEGAN: Well, one easy example is density restrictiongo out in many suburbs northwest of Chicago and you find that if you want to build apartment buildings, you will be restricted to fourteen units to the acre, eighteen units to the acre. That's totally absurd. There's absolutely no reason for it. You have that land being wasted for no reason. There are various restrictions but one of the restrictions that's an obvious abuse and waste of land is where a builder is told by a municipality that on this acre of ground you can only put fourteen units. That means that there's very very little usage of that land. In Chicago there are some areas where you can put 400 units per acre. There's no problem at all and there's no harm that can possibly result when you put more than fourteen units to the acre. Such magic numbers have nothing to do with the use of the land. The real reason is that these suburbs don't want apartments, so they do it by density restrictions.

REASON: Go onI'd like to hear some other examples.

SIEGAN: There is the broader subject of multiple family dwellings. Through the zoning process, people get a chance to decide what's going to go into a community and what's not going to go into a community. And people are deciding what is good planning and what is not good planning. These people, the local residents, have no basis for any of their decisions except what they personally want. One thing that happens is that the suburbs are restricted insofar as apartment use is concerned. That's a major problem because there is and there's going to be a lot of demand for apartments. When I say apartment use, I'm not only referring to apartments as we know themgarden apartmentsI'm also referring to townhouses, quadrominiums, other dense aggregations of housing accommodations. Single family dwellings are also treated adversely. Again, local residents get an opportunity to say who will be their neighborswho will live in the community. And they usually make a decision in their own self interest. We want people who are as nice as we are, who are as wealthy as we are, who won't create any problems, who won't be poor. We want to have a nice affluent area. The result is they put restrictions on homes. Certain areas must have big lots and others have smaller lots.

REASON: Has this led to the imbalance between urban growth and suburban growththe so-called crowding in the cities as opposed to the wide expanses in the suburbs?

SIEGAN:, Yes. I would say it has to. Because what this has meant is restriction upon development in the suburbs and we've learned that when the suburbs restrict a unit they not only affect the suburbs but they affect other areas. The filtering process is involved. We now know from a survey that's been made by the University of Michigan that the filtering process works quite well, and filtering means this: When one unit is built in a suburb of Chicago someone has to move into that from some other place and the latter in turn vacates his unit, and so on. The University of Michigan study indicated that these moves went all the way to the inner city. That when a rich fellow got an apartment in the suburbs, the fact that he got an apartment helped someone in the inner city. So you have something that isn't isolated. This effect is quite diverse. It goes throughout the housing market of which the suburb is part. Specifically survey found that for every new unit that was built approximately three and one-half moves resulted.

That included the move into the new unit, as well as two and one-half moves down the line. They also found that more than one-third of the people who moved were in the moderate and low income categories. And these are the categoriesthe moderate and low income categories, where we're spending millions of dollars on presently to try and better their housing conditions. Their conditions can be considerably helped simply by allowing the market to function, by having people go out and produce housing. And we may be doing more good for people at the lower end of the economic spectrum by building that unit in the suburbs than can be done by actually building subsidized housing for those people.

Now for very wealthy people it really doesn't make much difference if you keep out gas stations or you keep out supermarkets, because they can travel the fifteen miles or the ten miles to get to these places, and they would just as soon prefer it that way. But for people with lower income it's quite desirable to have shopping very close, especially if your car doesn't function that well, if the cost of gas is important, if there is only one car for the family. The great tendency of the suburbs is to keep out many convenience facilities. Franchises, you may see a great deal of but there are certain suburbs where you'll see very very little of them.

REASON: What about the fears that both people in the suburbs and the cities have, that they don't want to live next to a factory?

SIEGAN: I think the factory these days is as interested in staying away from people as the people are from factories. When the big industry moves these days their moves are very very carefully studied and they recognize that in this day and ageand what I'm saying is also probably true for past days and agesbeing next to people is not good for a factory. It may make noise. It may lead to employees riding over residential streets. It may have some smoke and odorlawsuits, demonstrations and bad publicity can result. But that's one reason. The basic reason comes from inspecting the land use maps of the nonzoned areas. Look at the land use maps of Baytown, Texas; Wichita Falls, Texas; Pasadena, Texas; Laredo, Texas; all of these communities are not zoned. They range in population from 45,000 to over 100,000. If you look at their land use maps, you'll find that industry has separated itself from residentialand no zoning board has said to industry you've got to go there or you've got to go here. They did it themselves. The normal forces of the market place have separated industry from residential uses. There are economies in being near a railroad, near a major thoroughfare, and so forth. There are great costs in locating in the midst of or adjoining homes. You find that this process has occurred without any regulations. In fact, when people insist, come on now, who did it, I usually insist it's the Great Pumpkin. If you read Peanuts you know Linus is always looking for the Great Pumpkin and I feel that if you really have to have an answer as to why this has happened, he's as responsible as anybody.

REASON: What has been the effect of zoning on race relations?

SIEGAN: By impeding the filtering process, zoning has certainly not been helpful. People in the ghetto have less opportunity to move out of the ghetto when there's less production and less opportunity for that movement to be made. On that basis I would say that race relationsI don't know if "race relations" is really the termbut the opportunity to move outto have greater opportunity for going elsewhereis much better when there's more production than when there's less production.

REASON: What has been the effect of zoning on land values and taxesand I'm thinking specifically of whether zoning accomplished the objective of maintaining a stable land value and a stable community.

SIEGAN: No. I would say it probably does the reverse. The optimum allocation of resources would occur much better in the absence of zoning than when politicians and local citizens and planners come around. The zoning process is a political process. It has no relationship whatever to looking at each land use and making a prudent decision on it, whether it's good for taxes or whether it's not good for taxeswhether it's good legally or good this wayit's a political process. People gather, make compromises and whoever screams the loudest has his way. How can we possibly then come to the conclusion that this erratic, irrational process can result in an optimum use of land or in a use of land that can result in the best collection of taxes.

REASON: Do you think communities also are hurting themselves taxwise under zoning?

SIEGAN: Yes. I think there's no question there. Let's take the suburbsthat's the easy one. Single family homes never pay their way. I think the figures in Chicago suburbsnorthwest suburbsare that it now costs about $1,000 to educate a child in grade school for one year. I figured out that you have to have a $70,000 home just to meet that one objective. And many people don't have $70,000 homes. The result of that is that the more and more you build homes, unless they are $70,000 homes and unless you make sure that there's no more than one child in the family, your taxes aren't going to be helped. Number two is the question of apartments. Apartments, by every study I have seenand there have been some very thorough studiesapartments, garden apartments, more than pay their way for the school district. Well, apartments are kept out of the suburbs. Not only are apartments kept out but also one of the things the apartments bring in is commercialnow commercial no one can argue about, it's very good for the tax base.

REASON: What kinds of private controls over land use do you think would occur without zoning.

SIEGAN: In Houston, most home areas look exactly like they were zoned. And they have what is known as "restrictive covenants." When the developer develops a subdivision he controls the use that can go in that subdivision. Prior to World War II, he might have controlled it for specific periods, say, twenty years, thirty years, something like that. Now at least in Houston it's usually done on the basis where these covenants last for a certain length of timelet's say twenty-five or thirty yearsand they are automatically extended unless 51% of the people agree they don't want them extendedat the expiration of the original term or at every 10 year interval thereafter. But to get to your specific question of how this relates to zoning: In Houston covenants that were imposed perhaps twenty-five or thirty years ago are now in the process of expiring. Suddenly, there will be no restrictions whatever. When those covenants expire in the areas that are not zoned, that's virtually the end of all controls there and you can put your gas station or anything else in. What has happened in HoustonI think it would probably happen were zoning eliminatedis that people are getting together themselves to control their immediate areas. I have found a number of examples where the covenants are about to expire, or have expired years agothey didn't even know about themdidn't think about themand the residents are getting together and imposing brand new restrictions for a twenty year or twenty-five year period. It isn't such a serious situation because the gas station or the hot dog franchise or industrial plant is not about to locate in interior or residential streets. The very likelihood of anything commercial entering once the covenants have expired is rather remote in the upper income areas. In the lower income areas the likelihood is much greater for a grocery store coming in on a residential street or even an auto repair shop. But that will happen because the people actually want itthose things help people. The lesson from Houston is that in the middle and upper income areas, when the covenants expire or are about to expire, people on their own, without going to City Hall, without asking their alderman or paying their alderman, can get together and impose covenants. Sometimes it's a 100% effective, sometimes it may only be 75% or 60% effective. But you don't have to have it 100% effective, because if you have enough it's not too likely that any terrible things are going to happen. It means a more circumscribed area of control that won't really affect living styles for most people. At the same time a lot of other areas will have the opportunity to be utilized as market conditions warrant.

REASON: Tell me a little bit about the history of Houstonhow long has it been nonzoned?

SIEGAN: Houston has always been unzoned.

REASON: It's never had zoning?

SIEGAN: Never had zoning. It's had two elections on zoning and that's the reason Houston doesn't have zoning. And if there were more elections on zoning there would be less zoning.

REASON: Have most communities that do have zoning had it imposed upon them?

SIEGAN: With the exception of relatively few cities, most communities had zoning imposed without any election. In Texas, there was an election in Houston, Baytown, and Wichita Falls. Now Beaumont also had an election and the election went 70% against zoning but about six years later the City Council imposed zoning anyway. There have been elections in the counties around the country. I don't have a complete rundown on that, but most seem to go against zoning. In few counties in Missouri, voters voted for zoning and then turned around and voted zoning out. But the other major cities in the country never had an opportunity to vote on it. I don't have the percentages, but the Douglas Commission figure is that 90% of municipalities with 5,000 or more population in 1960 had zoning. That's about the only figure that I'm aware of.

REASON: Can restrictive covenants accomplish all of the alleged good that zoning is supposed to in the sense of allowing planners, those who plan for utility lines and municipal services, to know what's going to be in that community a year from thenor ten years from that point?

SIEGAN: I would say it helps. But it's really more than thatit's not just really the covenants. If you talk to people involved in schools in the nonzoned areas, you'll find that they really don't have many different problems than the people in the zoned areas. Most land is going to be used for average or less than average homesand the school district knows that whether it's zoned or not zoned.

REASON: Are there any areas without covenants that are just chaos, where people have decided that they'd prefer not having covenants and just let whatever happens happen.

SIEGAN: I use the Denver Harbor (Houston) example of no covenants. Denver Harbor is a lower income area northeast of the center of downtown Houston. It's a pre World War I subdivision. The only restrictions they ever had were racial restrictions. But no other restrictionsand the racial restrictions were killed many years ago. We wanted to find out what had happened in this area, and we surveyed it in 1969. On one side of the area surveyed there's heavy industrial, and on the corner of the area we surveyed there was also heavy industry. We surveyed ninety square blockson one side heavy industry and corner heavy industryno restrictions, most anything goes. Our survey indicates that on interior or local streets about 7% went for commercial and 1% for industrial and about 2% for multiple. And the rest was single family. On some blocks there was nothing except homes because there is no reason why commercial is going to go into these areas. There are no gas stations in thereyou can't find a gas station except on main thoroughfares which have heavy traffic. The two principal commercial uses that we found in the area surveyed were grocery stores, and auto repair shops. When you look at these auto repair shops you find that again the great planner, the Great Pumpkin, has decided where the auto repair shops go. You find one auto repair shop that will cover several blocks, another will cover another several blocks, there just isn't enough business for two together. So you have this great master designer putting the auto repair shops where they're most likely to be in a market oriented economy. That is where they serve people. Now the question is, perhaps these people really hate this kind of thing. How do I know that these people really wanted this sort of commercial development? I think if they really didn't want them they'd chase these stores offthey just couldn't exist every few blocks the way they do. And there's the Houston zoning election. When the people in this particular area had the opportunity to vote on zoning or no zoning, they voted five to one against zoning.

REASON: Is your immediate goal then to have zoning elections in as many communities as you can get them?

SIEGAN: In certain cases.

REASON: Is that the recommendation you would make to many communities?

SIEGAN: Yes.

REASON: Immediately, elections?

SIEGAN: Yes.

REASON: Now I'm wondering aloud if this is something that should be decided democraticallyif zoning is wrong or immoral and it should be wiped out?

SIEGAN: It seems to me that zoning is such an important issue that if you're going to subject anything to popular vote this is as good a candidate as any should be. There are other issues involved and these may be issues for the courts. There are very serious restrictions upon private property involved in zoningwhere people, your neighbors, are telling you how you can use your land, and that's something that perhaps is not subject to voting. That's a matter for the courts.

REASON: I'm wondering, Mr. Siegan, if you favor ending all zoning ordinances immediately? Or is there some kind of transition period that you favor?

SIEGAN: There has to be a transition period, because people have relied on zoning when they've erected their homes. If there was no zoning most areas unquestionably would have had restrictive covenants. But they have relied on the law and I think the law has an obligation to say to these people we're going to give you a reasonable period of time in which you can get your own restrictions or not get your restrictions or decide what you want to do.

REASON: You always point to Houston as the key example of successful nonzoning. Many, however, have called Houston a mess, and one architect has said that there's "visual chaos" in Houston, among other charges. Is Houston chaotic? Is it a mess in any way?

SIEGAN: I think it's very difficult to take 450 square miles of territory and say it's messy or not messy. That's an enormous amount of territory to make a determination that I feel is a meaningful determination. I can only tell you that there are many many people who feel that Houston is a very lovely city. But let's assume that Houston is a mess. Let's assume that. Now why would zoning make it any less of a mess? For one, I think that things have happened in Houston that couldn't possibly have happened, and this all goes within the question of messthere are more people provided for in Houston by and through the use of real estate than anyplace else. As far as messthis is the problem that comes with the zoning. Zoning leads to higher rent and prices and inconveniences—that's really a mess!

REASON: Are private developers generally taking advantage of the increased opportunities in Houston?

SIEGAN: Oh, I believe so.

REASON: Can you give me a specific example of a missed opportunity that may have occurred in another community that didn't occur in Houston?things that have happened in Houston that wouldn't have happened if it were zoned.

SIEGAN: The best example is Greenway Plaza. This was an office building complexnot too far from the downtown area of Houston. Adjoining it were three single family subdivisions. Greenway Plaza in 1968 purchased one entire subdivision and over 90% of another in the next year, leaving one subdivision. Of course once they purchased the subdivision it's their land, and they can do with it most anything they want to do. but if there were zoning, before they purchased they would have wanted to get City Council approval for rezoning that property from single family to what they proposed: high rise office and apartment buildings. This is the major change in zoning. It can take a long timethen it might require a 75% vote of the City Council. Everybody would have his two cents worth as to how it should be donethe newspapers would say this, the planners would say that, and it would be the usual political maneuvering where somehow the result comes out to please the political pressures. My guess is in a place like Houston or any city they would say OK we'll finally agree to it, but it may take a year, and they may exact all kinds of things which have nothing to do with developmentbut much to do with politics.

REASON: How important is Greenway Plaza to Houston?

SIEGAN: In time this will become a major development of Houston. I wrote and asked what present plans were for this area, and how much money was going to go into it. And the figure that came back was $500,000,000in other words they're taking 237 homes that now are in an area that should no longer be single family, and they're converting the 237 homes into a major commercial development. Even if they exaggerate they'd have to exaggerate a long way not to see that that's an extremely desirable development for Houston. It will help taxes, employment and business enormously. It will of course help people; there will be more shopping areathere will be more office building area. There will be apartments. It will be much better use of that land than exists now. It's highly unlikely, if not impossible, that this could have happened if there were zoning.

REASON There's one thing I'm not clear about in your argument. You said at some point that Houston and several other communities are better off without zoning or with the nonzoning policy. At other points you say there simply is no differenceif you take a look at a land use mapyou couldn't really tell the difference between a nonzoned community and a zoned one. Are you saying that what results from nonzoning is pretty much the same as what you would get with zoning…?

SIEGAN: When I talk about usewhen I talk about the fact that industry goes here and industry doesn't go there and residential goes hereI'm really talking about one thing and that's use separation. In terms of use separation, about the same thing has occurred under nonzoning as under zoning. In fact you could argue that there is probably greater separation under nonzoning than under zoning. That does not consider the quality or the quanity of the developments. Use separation is highly important. If you ask plannersor the historians of zoningor the proponents of zoningwhat's the most important accomplishment of zoningthe answer might well be use separation. When it comes to quantity and quality, that's where the points go much better for nonzoning because of the various things I've indicated. In other words if you can only put fourteen units to the acre you may have separated those fourteen units off completely but that is still a big waste of land. That will not happen under nonzoning.

REASON: How muchhas anybody computed how much zoning has cost this country?

SIEGAN: No. But it would be an interesting study. How apartments fare I think I referred to that, what happens with high rises, I don't know that you can go much further. I don't know how to compute whether there are six more office buildings because of nonzoning or are there seven more apartment buildings. The only thing I have computed is rents. Here's something that we can try and evaluate. Now that's a cost. If your rents are cheaper in Houston than they would be if there were zoningor in a comparable zoned city, that's a terrible cost.

REASON: What happens with rents?

SIEGAN: I compared two cities, Houston and Dallas. And Houston has very similar cost figuresthe cost of living is very very similar in Dallasthe cost of construction is also very similarincome breakdowns differ little. They have about the same amount of vacant landamazingly similar statistics between Houston and Dallas. However, when you look at rents, and our whole argument should tell us that with more production, with more competition, the rents should be less, you find very significant differences. The figures I can quote were compiled by the Bureau of Labor Statistics. The Bureau took a set of specifications for five room apartments and for two and three room apartments and they took that same specification around the country and priced it. Now there are a lot of limitations with doing it that way, and it's a small sample.

REASON: Well, can one just lead from that and say to the people who complain about the skyrocketing rents in New York and Chicago that one way to get around it is to do away with zoning?

SIEGAN: I think it would help. Whether it would end skyrocketing is something else. If tomorrow New York no longer had any zoning, it would still have rents that are higher than Dallas, because there are other factors involved. But all other things being equal, or very close to equal, between Houston and Dallas, then you can conclude zoning is responsible for the difference. There are other aspects of this particular question. The cost of construction in New York is exceedingly high compared to Houston and Dallas. The cost of construction in Chicago is exceedingly highthe labor unions in one place and no labor unions in the other place, and there are climactic differences, so, you know, there are other factors. I'm saying this: that a significant difference exists in rents in two cities that are otherwise very very similar. And that is largely, if not entirely, attributable to the absence of zoning.

REASON: Is zoning constitutional? You're a lawyer.

SIEGAN: Well, until the Supreme Court says otherwise, it is.

REASON: Is there any way to challenge it on the basis of unconstitutionality?

SIEGAN: A lotall you have to do is pick up a law review these days and you'll find someone has a new idea why local zoning's unconstitutional. The YALE LAW JOURNAL says zoning's unconstitutional, the HARVARD LAW REVIEW says most zoning's unconstitutional…

REASON: What do they use as the base?

SIEGAN: They use different arguments. The equal protection clause, that it discriminates, that it doesn't give equal treatment to people, that's one thing, that it discriminates against poor people in favor of wealthier people. The YALE LAW JOURNAL has an interesting argument that says these towns are making decisions that affect vitally other people and these other people have no voting power in the town that's making these decisions. I contend it's unconstitutional because it violates one's property rights. Your neighbors, other property owners, and the political process all are controlling the use of your land.

REASON: How about the courts? Are they reacting increasingly against zoning?

SIEGAN: There are two major forces in the country today affecting zoning. There's the prodevelopment force and the antidevelopment force, the people who are ecology minded, want to strengthen zoning. They want to make it stricter and stricter, and they're bound to get judges who are going to agree with that point of view. On the other side there have been some significant decisions. In New Jersey recently a lower court decision observed that zoning benefited the private rather than the public interest.

REASON: Are there important cases coming up that we ought to be aware of?

SIEGAN: There are some cases around the country that are taking a more prodevelopment approach. Pennsylvania has had some very important decisions against restrictive zoning practices. New Jersey's got a bunchthree lower courts have been very very rough on zoning. I consider zoning litigation, as practiced in Illinois and most states as a charadeit's a drama. You go to court and the issue is really just one and everybody knows what it is. A typical situation is that the neighbors with single family homes don't want an adjoining tract to be developed for townhouses. That's the issue. There's nothing else involved. And they have got the political power to make sure that they succeed in their objective. But then you go to court and the court starts talking about planning. Is there a reasonable basis for the local decision to deny rezoning for the townhouses? And then the court spends hours determining planning concepts. Now the court and everybody else, certainly the lawyers know that the only reason the use wasn't allowed is because the neighbors didn't want it. But if a planner comes along and says this is good planning it probably will be upheld, because the benefit of the doubt is given to the municipality, and if it can convince the court that there is some reasonably logical basis for its actions the court will uphold it. The controversy basically is some people want to keep other people out. It's basically between one group of people and another group of people. But not in court. In court it's between this group of planners and that group of planners. And this group of appraisers and that group of appraisers. It's a drama that has nothing to do with the reality of the situation.

REASON: Do you notice a left wing backlash against zoning?

SIEGAN: The cases in New Jersey, are being sponsored by groups and people who are civil rights-egalitarian oriented. The cases in Pennsylvania are not similarly sponsored but very much approved by this group.

REASON: Why has the left been so much more vigorous on this issue than the right?

SIEGAN: The left is always more vigorous on every issue than the right. I hate to give that response, but it's the way I see it.

REASON: Is there any way you can explain that?

SIEGAN: I don't know. I think that goes beyond the scope of thisit goes into psychology and what's involved…

REASON: Who are your principal supporters amongfirst among the professions?

SIEGAN: I would say the economists. I have found among economists that there is disenchantment with regulation and that one who criticizes regulation will get a pretty good hearing. Of course, they're not proposing to throw out all regulations. But I have found that there is more disenchantment with regulation among economists than with any other group that I have had anything to do with. Suprisingly, many builders, principally the largest ones, oppose my position.

REASON: They don't immediately support what you say?

SIEGAN: It's difficult to be specific. There's a lot of money in zoning. If you can take a piece of land that's worth $1,000 an acre and you can rezone it to something else you can make it worth $10,000 an acre. It's the closest thing to creating gold that I think the world has seen.

REASON: How about among the political ideologies.

SIEGAN: I'm surprised at the favorable response I get when I talk to student groups where it's very obvious that the orientation of the student group is left, or where it's Nader oriented, where it's obvious business is not held in high esteem.

REASON: Who are your chief critics, besides the planners?

SIEGAN: The original article in the JOURNAL OF LAW AND ECONOMICS, we thought, was going to get an enormous backlash. I remember I went through my footnotes many times and made sure that there were no mistakes, and I went through a lot of statistics backwards and forwards to make sure that they were accurate, and in fact left out certain things, because I thought that they bordered on the very controversial and I was going to have enough trouble defending the not-so-controversial aspects. Well it hasn't turned out that way. As it's turned out, I would say on the whole that it's been exceedingly well received, it's been written about and talked about all over the country and it's placed a brand new perspective on the issue for a large number of people.

REASON: How would you describe yourself politically?

SIEGAN: I really don't know how to reply to that in these terms. The candidate that espouses less government intervention in the economy is going to be the one that's going to appeal to me.

REASON: Well are youthere are certain tags that, you know, one puts on peopleare you a capitalist, or an anarchist, are you a libertarian?

SIEGAN: I find that difficult. I could be a capitalist, libertarian or conservative. I don't know where precisely the one definition stops and the other begins. I really cannot find a precise word that would suit me. I think others could define me much better probably than I can define myself, because I always find it difficult to use a label that isn't precise.

REASON: You book is out, LAND USE WITHOUT ZONING, what reaction do you expect to it?

SIEGAN: I don't know. I'm very anxious of course to see.

REASON: There are three possibilities, it could be denounced, supported or ignored. Which one of those three do you see?

SIEGAN: I don't think it will be ignored. If my position had come to public light in 1958 I think I would have been run off the stageoff of whatever stage I'm on. And it would have been condemned. That was the period when the Chicago zoning ordinance was adopted. Behind it was a feeling held by many that planners could decide the best use of land. The Chicago zoning ordinance goes very far in making a decision as to how every parcel of land should be used. I consider that approximate period of time as the high point of the planning-is-a-science kind of thinking. I think at that time the planners looking at what I have to say would have been very much opposed, and would reject or condemn it very vigorously. Well a lot of things have happened since 1958. And the planners know that they didn't have the answers in 1958 and they doubt very much in their heart of hearts that they have the answer now. And so when someone comes along with a reasonable explanation of zoning and what to do about zoning, they, by force of circumstances, and by force of history, have to listen, and even though they don't like the idea they're not going to get up on some soap box and say this man is dangerous, he's no good, he's crazy, or that kind of thing. That can't be the result any more because they've seen what's happened during this period of time.

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