Mr. Siegan is the author of Land Use Without Zoning and many articles on the subject. He practiced law for 20 years in Chicago before moving in 1973 to La Jolla, California where he is professor of law at the University of San Diego Law School.
No one I know would consult a tailor about personal surgery or a surgeon about suit tailoring, an architect about drafting a will or a lawyer about preparing house plans. In this age of specialization, few would choose to be operated on by a general practitioner rather than a surgeon. People tend to hire lawyers who specialize on the matters on which they need advice.
The modern world demands a high degree of expertise. Why then are we so willing to allow eminently unqualified people to have a voice in the development of land? The experts and authorities in this field are the builders and developers. While there are limits to their knowledge, they surely are far more expert at their business than those engaged in other pursuits. Yet more and more, paradoxically, zoning requires builders to submit their proposals, for final decision, to the public and its representatives.
Consider a situation that recently occurred in San Diego. One of the country’s leading shopping center developers sought since 1973 to build a major shopping and housing complex in a northern portion of the city. After substantial changes were made, the concept of the center was finally approved in early May by the City Council.
This approval, however, was subject to the requirement that the city’s planning commission, composed of private citizens appointed by the Mayor and council, make the final decision on the actual design and placement of buildings and other facets of the plan. The planning commission’s deliberations are open to the public, and residents of the city were assured that they would have a strong role in the planning of the center.
The idea is preposterous! If people have reservations about placing their cares and concerns in the hands of general practitioners instead of specialists, they should be outraged at the prospect of entrusting it to those who have virtually no understanding at all.
Some individuals in every community of course, do have specialized knowledge in architecture and design, but experience discloses that such persons stay away from zoning hearings. Or if they do participate, it will be to look after their own personal interests. Unfortunately, it will be those with an axe to grind, local busybodies and professional joiners who have the most time for involvement.
I have attended zoning hearings where homeowners, whose combined knowledge of development would easily fit on the head of a pin, condemned complex plans prepared by highly skilled specialists. Worst of all, the local authorities will probably weigh heavily such comments because they emanate from sources with powerful weapons: the opportunity to vote them out of office. It is likewise absurd to give an important role to those who have no stake in the success of a venture and possibly may even prefer its demise.
Almost invariably, it seems, city planners and councilmen try to upgrade proposed developments. One gets the impression that residents want only Taj Mahals to be built in "their" municipalities. Developers will seek to pass on the cost of upgrading by raising prices or rents. If market conditions do not allow for increases, the projects become economically unfeasible and will not be erected. Production will thereby be reduced, and this will also cause prices or rents to rise.
Another possibility is that the developer will compensate for the added expense by reducing the quantity or quality of other amenities. He may attempt to offset the cost of required park dedications, special architectural treatment or lower density by say, lessening the amount of insulation and soundproofing or the quality of the windows, doors, plumbing, heating, fixtures, and the like.
The developer may still proceed despite the fact that his horse has been turned into a camel and the market may not be as favorable for camels. At least one reason for making such a decision is to save the huge expenditures which probably were made in rezoning the property. These expenses as well as those incurred in holding or optioning the land would be lost if the project is abandoned.
The foregoing describes zoning in action and suggests the difference between the private and public planning process. The owners of any business have to conduct it with maximum efficiency; otherwise their profits will diminish or disappear. They must purchase and produce with minimal waste. And above all, they must create something consumers will buy at a price which includes a profit.
No such limitations confine the public regulators. They make decisions for a large variety of reasons; and efficiency is rarely a primary one, for there is little they can gain from encouraging it. As a result, zoning causes the waste of much land and resources.
Bernard H. Siegan
Bernard H. Siegan (1924-2006) was a longtime law professor at the University of San Diego School of Law, libertarian legal theorist and a former federal judicial nominee to the United States Court of Appeals for the Ninth Circuit.