Zoned Out of House and Home

Zoning: Its Costs and Relevance for the 1980s, by Michael Goldberg and Peter Horwood, Vancouver: Fraser Institute, 1980, 133 pp., $4.95 paper.

Zoning, that once-unquestioned complement of the American dream, has been taking some licks of late. Even so, not even enough attention is being paid to what zoning is: a phenomenon in which the State is given the right to impose prior restraints on the use of land.

Ostensibly, such restraints are deemed necessary if incompatible land uses are to be separated and environmental needs protected. But whatever its rationale, zoning does restrict the use of land. Thus, genuine monopoly effects are generated and given legitimacy: less production of housing and prices influenced upward. Worse still, because the monopoly power resides in the State, relief is unlikely; and because zoning is constitutionally protected, only its abuses are subject to judicial scrutiny.

It is the zoning, however, and not simply the abuse, that produces the distorting effects. The failure to distinguish between them, and the tendency to focus on the abuse, has kept us from discerning the basic problem created by the zoning ordinance: a shrinking supply of housing relative to a strong and growing demand.

In this country, there are no intrinsic or technical barriers that limit the construction of housing—only land use regulations. What is regrettable is that, under the law, such regulations need not be justified. Courts uphold them simply by not examining them. For many, and especially for those on the lower end of the income scale, there is an arbitrary denial of access to the housing market, and this denial is government-sponsored.

Zoning: Its Costs and Relevance for the 1980s is an excellent study that explains and analyzes land-use controls and then provides an abundance of empirical data demonstrating that it is the simple, nondramatic zoning law—the one presumed reasonable and, therefore, automatically accepted as valid—that does the real mischief. To the question, "Is zoning necessary?" the answer, based on the evidence provided, is that zoning, at the least, ought to be presumptively invalid. To the municipality would then go the burden of showing necessity. Only if that burden were discharged would the zoning law be upheld.

The authors make clear that in terms of cost/benefit analysis and its stated purpose, zoning has been inefficient, ineffective, and counterproductive. For those zoned out, it "has not worked very well."

In other respects, though, it has been both efficient and effective for those zoned in. This is particularly true in smaller communities that are relatively homogeneous. Through the enactment of restrictive controls, such communities have conferred on property owners significant capital gains. In addition, land-use controls encourage discrimination against the nonpreferred at virtually no cost to existing owners.

There is today an enormous amount of literature dealing with zoning and its progeny. Almost all of it presumes the necessary existence of land-use controls. Its message is, "Get rid of the abuses and make the laws fair." These authors persuasively argue that the abuses are not the problem, that "fair zoning" is, at least for those zoned out, oxymoronic.

Norman Karlin is a professor of law at Southwestern University.