Tuesday, February 28, 2012

A Modest Proposal for Zoning in Tennessee

Just a week after I wrote about Nashville's new downtown zoning ordinance, news has come in that Tennessee's General Assembly is considering a law that would have a dramatic impact on zoning at the city and county levels.  Among proposed changes that would strengthen protections for non-conforming uses is this brief provision:
"No private property shall be rezoned by any local government without the express written consent of the property owner or owners." (S.B. 1272.)
The bill's prospects are uncertain, but it has Nashville's city government worried enough to issue a recent memorandum noting that the law "would essentially prohibit any large or overlay zoning (including a county-wide comprehensive rezoning) unless all property owners agree."

That may be an understatement. The practical difficulties in obtaining written consent from more than a handful of owners would probably put an end to almost all rezonings, not only those of large areas. Selective rezoning would be a certain path to lawsuits and allegations of favoritism and spot zoning. To the extent that any rezoning would be possible, it would be far easier in exurban greenfield sites than in built-up areas.

It would be interesting to see how Tennessee courts would react to this law were it enacted. An Arizona law similarly requiring landowner consent for downzonings was struck down by an Arizona Court of Appeals in 2002, which wrote:
"[T]he [law] affirmatively grants property owners the ability to prevent counties from initiating downzoning of the owners' property ... , thereby effectively delegating to those property owners the downzoning authority that formerly reposed in counties. However, it is a well established theory that a legislature may not delegate its authority to private persons over whom the legislature has no supervision or control." McLoughlin Realty, Inc. v. Pima County (2002).
The court also noted that "a county's planning power is not merely ancillary to its ability to rezone; the two powers are interdependent. Only with the authority to rezone property can a county effectively make the extensive planning determinations required of it."  In effect, the zoning power, deprived of the authority to rezone, is no power at all.  The legislature can withdraw it altogether, the court held, but it cannot delegate it to private citizens.   (Arizona has since adopted a new consent law, § 11-814, which has not yet, as far as I can tell, been challenged in court).

Oddly, the idea of selectively or fully repealing zoning  – a perfectly legal course of action – seems not to have gained any traction even in such ostensibly pro-property rights states as Arizona or Tennessee.  Arizona's libertarian-supported Proposition 207 focused on declines in property value resulting from rezonings, while avoiding the broader point that it is zoning itself that serves as the greatest suppressant of
both property values and the free use of land.

Why is this alternative (not that I am necessarily advocating it) so infrequently raised by property rights advocates? Do libertarian principles perhaps yield to a strong personal preference for low-density, use-segregated single-family zoning and fears of change? Are restrictive covenants, in spite of the example of Houston, seen as an inadequate stand-in? And why cast the language of these statutes in terms of landowner objections to city rezonings, rather than granting owners the right to obtain rezonings on their own terms?

I'm not sure of the answers to any of these questions, but regardless of the motivation, the approach pursued by Tennessee and Arizona lawmakers threatens to bring about the worst of both worlds: a system that has all the rigidity of Euclidean zoning but none of the adaptability.

 Related posts:
 Did Zoning Ever Preserve Property Values?


  1. 1) The title of this post is really great.

    2) I think that the strong correlation between libertarian (or perhaps more accurately conservative) principles and low-density development comes from most property rights supporters living in low population-density parts of the country and their status quo bias. Also, while I don't think that cities require big governments, it's very hard to find a small government city, so maybe those against dense development are afraid that allowing more development will bring city qualities that they don't like such as higher taxes.

    1. That's a good point -- consent-based rezoning really is the embodiment of status quo bias more so than property rights advocacy (the purported motivation). Since zoning itself is a product of status quo bias, but justified, for sake of legality, in terms of health, safety and welfare, I think that a law like this only makes explicit what zoning has always been implicitly.

  2. Why would a homeowner oppose the idea of his property getting rezoned though? It gives the homeowner more options for what to do with his property, and as long as he owns it, nothing will be built on his property that he doesn't want. Upzoning might increase property values too. Or do I misunderstand and would homeowners have a say in the zoning of their neighbours' properties?

    1. Nicolas -- I suppose the fear is not of the upzoning of one's own property, but of the neighbors'. I doubt that most people would object to a selective rezoning of their own property for greater density or wider range of uses, but a rezoning of that kind generally will not pass muster in the courts (since it appears arbitrary).

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  4. The purpose of zoning was to chase heavy industrial activities "somewhere else".

    It's since been abused to chase other things away. That has been nothing but bad.

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