In Gundy v. United States, the Supreme Court wasted the opportunity to restore the Constitution’s prohibition on delegation of legislative power.
I just got back from the fight for freedom in Ukraine. Of the one hundred and one impressions made, the standout was this: while helping others defend their God-given liberties, it became starkly evident that our own have slipped terribly—and that it is our own fault, not a convenient bogeyman like “The Russians.”
One bright morning on a Ukrainian shooting range, while discoursing on the finer points of lethal defense against an invading army, I got an unexpected call from my wife who tearfully relayed some bad news: our local county planning department had delivered a “Zoning Violation Stop Order” for a small wooden deck and “glamping” tent we had built a month earlier to supplement an overly-modest income. We had, the notice announced somewhat incredulously, not even sought, let alone received, proper permission from the authorities to do such a thing. Imagine the impertinence. Imagine believing that as mere private citizens we could build what we liked on our own land and offer it for rent on the free market! Laughable.
Existential threats to freedom, I must say, are much clearer when they come in the form of artillery and marauding tanks. But it is the subtler threats—like the strangling extension of government into all aspects of citizen life—that are perhaps even more dire. When a citizen cannot so much as erect a tent on their own land without first seeking government approval, something is deeply, troublingly amiss. Freedom, especially in property rights, has lost its traditional meaning in America and, like the proverbial slow-boiling frogs, it’s time we recognized the fact.
Article 1, Section 400.90
You can guess where this is going—I will come across as the cranky noncompliant sort, made all the more irascible by the stark contrast between abstractions of “liberty” promoted in the news about Ukraine and the reality of “liberty” at home. And yes, I’m a little disjointed, but allow me a moment to make the case that this tetchiness is about more than just my personal case—that it stems from a morally and philosophically defensible position that applies to us all.
I’ll start by admitting that yes, mea culpa, I was naïve. My wife (who is Dutch) and I had scrimped and saved, eventually buying a few acres out of town as an investment against rampant inflation (but that’s another topic). In a fog of delusion, verging perhaps on willful negligence, we convinced ourselves that in a free country (“like America,” she said) we could do more-or-less whatever we wished on our private land as long as it didn’t impact the liberties of our fellow citizens. We were wrong. The idea that you can do “more-or-less” what you wish on your own property translates as “less” in today’s code-enforced America.
According to the ordinances of our very rural, very midwestern Platte County, our tent falls under the “Bed and Breakfast” statute (ARTICLE 1, SECTION 400.90 for the morbidly curious), and is not a “permitted right” under the “agricultural zoning” we fall under. Moreover, we are required to obtain a building permit for “any structure built for the support, shelter or enclosure of persons, animals, chattels or movable property of any kind.” Before this permit can be applied for, however, we must first be approved for a Special Use Permit which requires “submittal of a Site Development Plan” which, among other onerous things, requires a detailed description submitted on ten copies of a 24” x 36” sheet (?!) which includes every light fixture, the location of “all adjacent unplatted land with name of the property owners and approximate acreage,” “type of existing surface on all existing streets and roads which abut, touch upon, or extend through the site plan,” and so on—there are six pages of these stipulations. To his credit, the county representative seems nice enough and has crossed out, without any explanation or discernible authority, something like half of the requirements on the form. It’s a good thing we’re apparently in his good graces: I can only imagine trying to comply with these requirements if I were, for example, an undesirable sort of landowner.
The whole exercise, I have to say, after speaking with my Ukrainian colleagues, feels so decidedly Soviet—the all-encompassing, yet ludicrously inept bureaucracy: Farmer Pavel begging the local apparatchik for permission to have a chicken coop while party functionaries deliberate whether “eggs” constitute bourgeoisie-production. “Fill out this form, Pavel, and come back again in two weeks and we’ll see what we can do.” Wink wink. Ukraine still suffers from an excessive, deeply engrained bureaucratic culture—vestige of a bygone era when the State was supreme. Yet as we jokingly tag “Wolverines!” on destroyed Russian BMPs, one can’t help but wonder whether the “defeat of Communism” was in fact the crowning triumph of liberty we’ve been trained to assume.
Our local county—and it is in no way unique I’m afraid—has claimed the purview of the state to dictate how citizens shall use their property to an astonishing degree. There is no element of construction or land alteration that cannot be forcibly prohibited on the grounds that it might not fit the dictates of a bureaucracy that presumes to know better.
When did our private property rights become so effectively bound in red tape? It’s not as if it was always this way: In the early 1900s, the first zoning laws (motivated, more often than not, by racism) were passed in large cities like Los Angeles and New York, but it wasn’t until much later that the idea went national. In Missouri, it wasn’t until 1945 that the idea entered the Statute books, probably when the war effort had lulled the population into greater comfort with central authority. Even then, it was not until the late 1970s that zoning rules, through county commissions, really began to be so all-encompassing. Since then, nation-wide we have more or less unwittingly accepted a vast set of property restrictions that curtail our rights before they can be reasonably said to pose any threat. The loss of our private property rights, in short, is within living memory and under our very noses.
Our specific case, while perhaps more egregious than some, nevertheless highlights the extremity of the issue. Of the eight entities required to sign off on our Special Permit Application, six scribbled their approval with a yawn. The highway department has not responded to five phone messages and two emails (and that’s after worming the correct contact out of an outdated website which directs people to an inoperable phone number). The local rural water district, meanwhile, is even worse. When we dutifully approached them for their signature, noting that it was probably a solid “Not Applicable” (no water needed in a tent, after all), they said they would need to “bring it up at next month’s board meeting.” Not a good sign.
Sure enough, some weeks later (while I was again in Ukraine, of course), we received a letter explaining that the Board of Directors “voted unanimously to deny” our application. The “Rules and Regulations of the District” state that we are “prohibited from sharing, reselling, or sub-metering any water to any other consumer.” This, despite the fact that we repeatedly had explained that no water was to be used in the tent in the first place. Even if it were, we reasoned, wouldn’t the district appreciate the extra usage since they are, after all, in the business of selling water?
The letter went on, rather offensively: “While you have stated that water will not be utilized for this primitive camping area, the Board felt that this condition could change at any time. It was suggested that you might possibly consider applying for an additional water meter in order to provide water when needed.” Hmmm… was this the catch all along? Just install a $5,000 water meter so they can monitor non-existent water use to a tent that “might possibly” use it in the future? Friends, Americans, Countrymen: this is insane.
We have reached a stage in the lifetime of our democracy which Alexis de Tocqueville, master observer of the democratic experiment, termed “Administrative Despotism.” Writing roughly a century before zoning laws were adopted wholesale in America, he predicted a situation in which the regulatory state:
…extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through… it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.
This might seem a little over the top, but our little tent-pitching example seems rather to corroborate than refute it. We have not been forced, gulag-style, to do the will of the state but we have been quietly, constantly, firmly told what we may not do, which, frankly, amounts to the same thing.
We’ve tried to play by the rules. We took our listing off the internet. We dutifully printed off the 10 copies of the Site Development Plan. We carefully labeled and annotated the giant rendering of our tiny little tent site. But the joy is gone. We are at a standstill with the highway department which appears to be unresponsive. The water district is getting snottier. The cats knocked a water glass over our plans and where the hell do you find giant paper and a giant printer? The Prosecutor’s office has sent us another threatening note.
The state hasn’t exactly destroyed our little business venture, but it has very effectively prevented its birth. Seeking signature approval from eight local agencies before you’re allowed to even applyfor a Special Use Permit from the county authorities is exhausting. Even then, the county only might grant permission, assuming the required Site Development Plan (all 10 copies, don’t forget), meets their demonstrably fickle approval. And even then, they only might grant a building permit which would allow you to move ahead. At any one of these ten critical junctures, any individual bureaucrat can halt or delay the process, no matter how unjustifable their objection. I’m sorry, but we feel like quitting. And I’m not alone.
I know. There will be those who will tell us to stop complaining and “get involved”—join the local planning commission, run for office, and so on. But let’s be honest—who has the time or inclination? And even if we did, the damage is already done. Our little tent, which had been eagerly booked by a great number of happy campers charmed by the opportunity to avoid a hotel room, is now on ice. As it currently stands, it appears impossible to follow the rules—far easier to just go do something else. We have lost a fun little side-business, the local community has lost tourist dollars, the county has lost tax-base. Everyone has suffered and nobody has gained (even the county, which is frantically understaffed, gets no satisfaction from this—maybe the water meter vendor comes out ahead?).
A Way Out?
Luckily, zoning laws are coming under increasing fire. M. Nolan Gray, writing in The Atlantic, joins others in proposing a “canceling” of zoning laws. A growing number of communities and states have responded to the clamor to reduce the stifling rules written by an earlier generation for an earlier set of perceived problems. Unfortunately, most of these efforts are basically urban, demanding the opportunity to creatively engage in things like pedestrian-friendly in-fill development. And that’s great. Unfortunately, if history is any guide, rural legal changes are about a half-century behind.
For those who fear change or are worried that lessening the restrictive fetters of the state will lead to chaos and tears, recall that these codes have been in effect for less than a generation. Does anyone recall the landscape of rural America in, say, 1960, as a horrible wasteland of wildcat development and “incompatible” uses? Some folks remember goats and chickens in town back then, but was that really so very awful? Now even the cool towns allow livestock. Yes, populations have risen, and rural areas have filled, but do the highly zoned landscapes meet some artful standard for perfect land use? Things like semi-urban sprawl are a result of zoning, not proof of its magical effectiveness.
Houston, the nation’s fourth largest city, has never been zoned and has not descended into a hellscape of chaotic uses (or at least no more than other cities.) And for those worried about neighborly relations if we “just allow people to do what they want with their land” we have a robust and effective system of common law to restrict and adjudicate the more obnoxious trespasses of our fellow man. When informal codes of common neighborly civility fail (and they do sometimes, though not as often as supposed) we can safely rely on our age-old legal system to deal with it. If a landowner does something on his or her land that is genuinely harmful, we can (and do anyway) deal with that through regular statute enforcement.
Sometimes you have to step away from the forest to see the trees. Ukraine, with its liberty under direct assault, was an especially good vantage point to see the growing threat to our own freedoms. It’s embarrassing almost: the rest of the world sincerely believes we’re the land of the free, but the truth is less romantic. My comrades-in-arms were stunned to hear the level of state control over our property—rightfully noting that in many ways they were freer in the former Soviet Socialist Republic of Ukraine.
The fact is administrative despotism—exemplified by zoning laws—has made a serious inroad into our rights as free citizens to dispose of our property how we see fit. They have proven to be intrusive and stifling, leading to costs that their (maybe) well-intentioned promulgators never foresaw. Abraham Lincoln is said to have remarked that “…the best way to get a bad law repealed is to enforce it strictly.” Let us hope this is true—that as zoning codes continue to strangle American enterprise, enough of us will begin to stand up and vigorously push back. Ukraine can be our inspiration.