[jarsbars]

The antidote for zoning: the "Coming to the Nuisance" doctrine

By David Wilens
web posted May 8, 2000

Real estate developers have good reason to feel cannibalized when they attempt to develop something today. Building permits for their projects are often exceedingly difficult to secure, requiring thousands of dollars in architect's and attorney's fees, and months (if not years) of submitting plans to boards and commissions, sometimes a repeat number of times. Many projects end up abandoned because the developers simply run out of money for the holding costs involved, not to mention spiritual energy to fight the psychological battles. Even if the developer is lucky enough to eventually get the project built, the costs to sell or lease the space end up far higher than they should be due to all of the red tape involved. This in turn means needlessly higher rents and prices for homes, apartments, and commercial space. (For the sordid details of the land development approval process, read Dr. Gary Hull's article "The Collapse of Building" in The Intellectual Activist, Summer 1989.) The cause of this mess is, in a word, zoning.

Zoning creates the problem by subjecting development to the arbitrary whim of government, which can virtually make or break a project on any basis the bureaucrats wish. Zoning operates as follows: a local government, either a city or county, breaks its jurisdiction up into zoning districts. The government then drafts an ordinance stating which types of land uses are allowed in each district. For example, a city may have an ordinance which has several zoning districts, some of which allow only residential uses, a few more allowing only commercial uses (i.e., stores, offices, etc.), a couple which allow industrial uses, etc. But zoning involves more than merely the specific use to which the property may be put; considerations such as the size, height, and architectural style of the development, setback distances from the lot lines, the amount of ground it covers, how much parking is required, and a myriad of other aspects of a project's design are also among the arbitrary rules found in zoning ordinances.

When a developer proposes a project and applies for a building permit, before he can build he must first obtain approval from the local government in whose jurisdiction the project is planned, which comes only if the project conforms to the local zoning ordinance. If it does not, then he must change the project to conform or receive the government's permission to deviate from the ordinance; if he can not do either of these, he must then try to persuade the public, in an open hearing, to allow him to change the ordinance. These moves are subject to political pressure from constituents (such as competing real estate developers) of the elected officials from whom approval must be sought; if local politics are against him, the developer may have to give up on the project altogether.

Zoning is an evil because it is a violation of the property owner's right to develop and use his property for purposes of his choosing. It is a gun pointed at the head of anyone who wants to develop his land in any way, before such a person has used any force himself against anyone else-i.e., before he has used his property in any way, constructed anything, or harmed anyone through his use; and, it is being wielded by an entity which has no ownership interest in the property and thus no right to set the terms of its use. If someone wants to develop his property, thanks to zoning he no longer has any real right to do so. With zoning a developer may only develop by the government's permission, which, though it may not be de jure withheld arbitrarily under the law, may still be de facto withheld for so long through stonewalling and political maneuvering that the developer may run out of money merely trying to get the permit.

The proponents of zoning claim that such initiation of force is necessary against developers to prevent the occurrence of nuisances. A ‘nuisance' is defined as the effect from an activity on others which unreasonably interferes with another's lawful use of property, or causes undue inconvenience, hardship, or discomfort to another person. Examples aren't hard to visualize. For example, a factory which emits harmful fumes that cause breathing problems for nearby residents is a nuisance, as is a restaurant which does nothing to prevent bad odors emanating from its dumpster to the properties nearby. A college fraternity house near a residential neighborhood which plays loud music late into the evenings might also be considered a nuisance, if it affects the ability of neighboring residents to sleep. But nuisances may work the other way as well: for example, a house in a noisy industrial district may be a nuisance there-if the residents' desires to sleep affect the ability of the factory owners to operate their businesses.

Because one has a right to use his property, and because nuisances unreasonably interfere with one's use of property, it follows that nuisances are a violation property rights and, as such, must be addressed objectively by a proper legal system. While the need to do this hasn't escaped western intellectuals, unfortunately the means of doing this for the most part has.

What has thrown thinkers for centuries regarding nuisances is that they are different from other forms of force because there is nothing inherently unlawful about the acts which constitute the nuisance; all that is unlawful is their effect on other property owners. In contrast, almost all other forms of force have some act associated with them which, because the act itself represents a forcing of the arbitrary on another person, is clearly unlawful. For example, consider the physical attacks or threats associated with assault, battery, or manslaughter. Then consider whether it is unlawful merely to use one's house to sleep, or to play loud music. Both activities, by themselves, would be legally fine, so long as they do not affect anyone else's ability to use property.

Because the acts which contribute to nuisances are not in themselves unlawful the way acts constituting other forms of force are, there is confusion about the principles regarding whom to hold accountable for the creation of a nuisance. The proponents of zoning claim that there are no objective principles for doing so and that, without the initiation of force, there would be no means in the event of a nuisance to determine which of the two contributing uses would have the right to continue and which would have to yield. Nuisances would therefore proliferate everywhere, with the government powerless to enjoin them.

The zoning proponents, however, are wrong. There is an objective means by which the rights of two property owners can be determined in the event of a nuisance, without the initiation of physical force against anyone: by means of a doctrine called Coming to the Nuisance.

‘Coming to the Nuisance' means exactly what it sounds like: if a property owner is using his property so as to cause a nuisance to another property owner, then the property owner who was the earlier to start his particular use is the one who has the right to continue his use. The other property owner, who started his use subsequently on his own property, has lower priority and thus must either yield or quit complaining, since he came to the nuisance and therefore could have stayed away. For example: if a farmer has on his property a feedlot for his animals that is being properly operated [1] and yet which still causes bad odors, a developer who later constructs single-family residences on a nearby parcel can't complain about the feedlot's odor, effluent, or other negative attributes (nor can the purchasers of the residences); if he does, he won't prevail in a nuisance action against the farmer because of Coming to the Nuisance-i.e., because the feedlot was there first.

It is important to emphasize that the Coming to the Nuisance Doctrine does not give a property owner priority to engage in any and all uses of his property; it only gives him priority to engage in particular uses of property-namely, only those uses which one starts prior to the uses made by other property owners. For example, if I purchase a piece of land and use it solely as a residence, I have a right to continue using it as a residence as against the rights of all newcomers. Let's assume that, subsequent to my purchase and commencement of use as a residence, someone moves in next door to me on a vacant piece of land and uses it as his residence. Then, subsequent to that, I open a hog farm on my land which causes a nuisance to my neighbor. I do have the right to use my property as a residence as against the rights of my neighbor, since my residence was there first, before his residence was. However, I do not have the right to use my property as a hog farm as against the rights of my neighbor if doing so causes him a nuisance, since his residence was there before my hog farm was. When I opened the hog farm, I started a new use-and thus my hog farm has lower priority than the uses of other property owners which commenced before my hog farm. (Other factors, such as when I bought my property, etc., are for the most part irrelevant. It is when I started my particular use which matters.)

‘Coming to the Nuisance' is a corollary of the right to keep and use property. One must have the ability, without permission from others, to use property indefinitely (unless, of course, one voluntarily agrees to use it only for a specific time period, such as with a lease). If one does not have such an ability – meaning, in essence, that someone can come along at any time and arbitrarily demand that one no longer may use his property – then all use of property in effect ends up being by permission of those who have the power to stop its use, and the right to property in effect vaporizes. For example, if the government decides to stop a particular owner's use of his property simply because a majority of people in the area find it offensive for one reason or another, then ultimately everyone's use of property is no longer by right but rather by permission.

Because the right to property means the right to use it indefinitely, it follows that, once a property owner has started using his property in a particular fashion, he has the right to stop others from interfering with that particular use. This is the rationale behind the Coming to the Nuisance doctrine's requirement that, when uses of two properties conflict with each other, the use which has priority is the one started first, and the owner has the right to stop others from interfering with this prior use (the ‘first in time, first in right' rule).

Since the right to property necessarily implies the right to use it indefinitely, and since the right to use property indefinitely implies the first in time, first in right rule, it follows that respecting property rights ultimately means respecting the Coming to the Nuisance doctrine too. The two are inseparable. Also, because the only objective means by which men can properly deal with one another is for them to respect each other's rights, then in the appropriate context the Coming to the Nuisance doctrine is the only objective means for men to deal with one another as well. To summarize: the Coming to the Nuisance Doctrine is the only objective means of determining who has the right to continue using his property in the event of a nuisance. If zoning is to be replaced, therefore, it must be replaced with the Coming to the Nuisance doctrine. And, since it is the only objective means of determining who has the right to continue using property in the event of a nuisance, the Coming to the Nuisance doctrine must be regarded as an absolute in all nuisance cases where it is at issue, determining the rights of the parties without being watered down by less important doctrines.

Unfortunately, this is not the present state of American law. Although it is still used in nuisance cases, Coming to the Nuisance is not regarded as an absolute, but rather as merely "one factor among many" by the courts. For example, courts today very often determine the rights of property owners in nuisance cases not solely by who started his use first, but rather by factors such as the "trend of development in an area"-meaning that, if there is a farm or factory in an area that previously was agricultural or industrial but which is becoming residential, the government will force the farmer or factory owner to shut down. [2] This opens the door to unjust decisions in nuisance cases, and provides an excuse for government intrusions on property rights such as zoning.

Replacing zoning with the Coming to the Nuisance doctrine as an absolute would mean the end of the government's initiation of physical force in the land development process due to zoning. This is because the government would not be able to tell anyone how to use his land prior to the creation of a nuisance. Once a nuisance occurs, however, the government may use force to stop it, as the result of a lawsuit. The government is justified in doing this because it is the nuisance (rather than the government's remedial actions) which, since it is a violation of the right to use property, constitutes the initiation of force-and the government's remedial measures are simply force used in retaliation.

Ending the initiation of force brought about by zoning will greatly help to restore objectivity to the land development process. This is because decisions regarding land use will no longer be in the hands of the government but rather will be handled by the owners of the property to be developed. Instead of being forced to design projects to conform to the whims of bureaucrats, developers will be free to design their projects to conform to reality-in this context, to the rights of other property owners who started using their properties previously, and who might be adversely affected by the developer's proposed project. This would necessarily involve figuring out which property owners might be affected by a proposed project and what uses these owners are already making of their properties, so that the developer can design his project to be compatible with these uses. (Unfortunately there isn't space to go into the mechanics of this here; it will have to be the subject of future work.)

Finally, replacing zoning with the Coming to the Nuisance Doctrine should bring the prices of homes and building space down dramatically because the design criteria for development projects will be objective rather than arbitrary, and development costs will thus become more predictable and manageable.

In conclusion, because property rights are a necessity if men are to live together, it follows that they must be respected in every area of one's life, including land development. Humans must develop land; we can not live, as the environmentalists insist we do, in the world ‘as it is' without creating the buildings, roads, and utility systems we need in order to live. But these must be built with total respect for everyone's rights. This means ending zoning-and its only antidote is the Coming to the Nuisance doctrine.

Copyright ©2000 by David Wilens Mr. Wilens is a real estate attorney in South Florida.

[1] If a nuisance results solely because a use is being improperly operated, then there is no Coming to the Nuisance issue and the doctrine doesn't apply. For example: if the feedlot caused odors only because of improper operation, and proper operation would end the odors and thus the nuisance, a court would simply order the owner of the feedlot to take measures to end the odors, and would not apply Coming to the Nuisance.

[2] See Hadacheck v Sebastian, 239 U.S. 394; Spur Industries, Inc. v. Del E. Webb Dev. Co., 494 P.2d 700.

http://www.enterstageright.com/archi...0500zoning.htm

[tsaaapla]

Something that appears like logic can be found within all those words ^^^

However, the writer assumes that (for the most part) people behave in a way that is in the best interest of others. Life experience for anyone over the age of 13 proves otherwise.

And anyone with a knowledge of NYC Zoning history is aware that NYC Zoning Regulations came about because one particular building (the Equitable Building) was built in such a way that, had development been allowed to continue in that fashion, adequate light and air for existing (and subsequent smaller buildings) would be put in jeopardy.

While Zoning Regulations -- both in NYC and elsewhere -- are clearly not perfect, to label them "evil" -- as the writer here does -- is wrongheaded.

[ptolerezort]

‘Coming to the Nuisance' means exactly what it sounds like: if a property owner is using his property so as to cause a nuisance to another property owner, then the property owner who was the earlier to start his particular use is the one who has the right to continue his use. The other property owner, who started his use subsequently on his own property, has lower priority and thus must either yield or quit complaining, since he came to the nuisance and therefore could have stayed away. For example: if a farmer has on his property a feedlot for his animals that is being properly operated [1] and yet which still causes bad odors, a developer who later constructs single-family residences on a nearby parcel can't complain about the feedlot's odor, effluent, or other negative attributes (nor can the purchasers of the residences); if he does, he won't prevail in a nuisance action against the farmer because of Coming to the Nuisance-i.e., because the feedlot was there first. The author is arguing a case for zoning. If the area was properly zoned for farming/manufacturing, the developer would not have been permitted to build the residence, and the problem would not have occurred.

Zoning is an evil because it is a violation of the property owner's right to develop and use his property for purposes of his choosing. It is a gun pointed at the head of anyone who wants to develop his land in any way, before such a person has used any force himself against anyone else-i.e., before he has used his property in any way, constructed anything, or harmed anyone through his use; and, it is being wielded by an entity which has no ownership interest in the property and thus no right to set the terms of its use. The gun lobby uses the same argument of immutable rights.

The author assumes that all cases are as clear-cut as the hog farm. As an attorney, he should know that the real world is more complicated. Before long, as cases come before the court, a body of rules would develop - zoning.

[Aleksis]

It is my hope that by bringing this topic to debate, we take the time to examine the merits and drawbacks of zoning, and really question its necessity. Among one of the many drawbacks is the simple reality that zoning, by its nature, is restrictive - and thus inhibits the market from making critical demand and supply decisions. Studies have been done that link zoning with a decrease in affordability of housing. As one of the most heavily regulated zoned cities, New York is no exception to that.

The following is the "conclusion" section of an empirical study done by a couple Harvard economists several years ago. It summarizes their findings:

America is not facing a nationwide affordable housing crisis. In most of the country, home prices appear to be fairly close to the physical costs of construction. In some of the country, home prices are even far below the physical costs of construction. Only in particular areas, especially New York City and California, do housing prices diverge substantially from the costs of new construction.

In the areas where houses are expensive, the classic urban model fares relatively poorly. These areas are not generally characterized by substantially higher marginal costs of land as estimated by a hedonic model. The hedonic results imply that the cost of a house on 10,000 square feet is usually pretty close in value to a house on 15,000 square feet. In addition, these high pricesoften are not associated with extremely high densities. For example, there is as much land per household in San Diego (a high price area) as there is in Cleveland (a low price area).

The bulk of the evidence marshaled in this paper suggests that zoning, and other land use controls, are more responsible for high prices where we see them. There is a huge gap between the price of land implied by the gap between home prices and construction costs and the price of land implied by the price differences between homes on 10,000 square feet and homes on 15,000 square feet. Measures of zoning strictness are highly correlated with high prices. While all of our evidence is suggestive, not definitive, it seems to suggest that this form of government regulation is responsible for high housing
costs where they exist.

We have not considered the benefits from zoning which could certainly outweigh these costs. However, if policy advocates are interested in reducing housing costs, they would do well to start with zoning reform. Building small numbers of subsidized on housing units is likely to have a trivial impact on average housing prices (given any reasonable demand elasticity), even if well targeted towards deserving poor households. However, reducing the implied zoning tax on new construction could well have a massive impact
on housing prices.

Of course, it may well be that the positive impact of zoning on housing prices is zoning’s strongest appeal. If we move to a regime with weaker zoning rules, then current homeowners in high cost areas are likely to lose substantially. To make this politically feasible, it is crucial that any political reform also try to compensate the losers for this change. For anyone interested in reading the entire study, which includes some mathematical models, here is the link for the pdf:

http://post.economics.harvard.edu/hi...s/HIER1948.pdf

[wantedLOX]

However, the writer assumes that (for the most part) people behave in a way that is in the best interest of others. Life experience for anyone over the age of 13 proves otherwise.

It's not necessarily that they have the best interest of others in mind; I think it has more to do with the belief that rational self-interest, when left unpressured by restrictions such as zoning, has a way of benefitting all parties involved. It's all very theoretical and philosophical, I know, but there isn't a lot of recent precedent for us to know whether it would work or not. For the past 100 years or so, America as a whole, and especially places like New York City, have developed more regulation for everything.

And anyone with a knowledge of NYC Zoning history is aware that NYC Zoning Regulations came about because one particular building (the Equitable Building) was built in such a way that, had development been allowed to continue in that fashion, adequate light and air for existing (and subsequent smaller buildings) would be put in jeopardy. True. However, one has to wonder just how development would have proceeded without the very reactionary zoning regulations were put in place. Somehow, before 1916, the city got along without zoning. I don't know, it just seems somewhat unjust for such pervasive regulations to be set up for all future developers in response to a single event.

And that brings up another example of the pros and cons of zoning: surely, a lot of us here appreciate the classic "setback" NYC skyscraper, which developed in direct response to those regulations requiring sunlight to reach down into the street. But a few decades later, when Modernism arrived, look what happened: we started gaining all those dreaded plazas, with their accompanying un-setbacked boxes. The reason for doing so was the same: allow light to reach the street. The result, however, was much different and much less favorable.

While Zoning Regulations -- both in NYC and elsewhere -- are clearly not perfect, to label them "evil" -- as the writer here does -- is wrongheaded. I think he uses the label, again, purely on philosophical grounds, and not necessarily as something that suggests zoning "produces" evil.

It is thought-provoking, though, because it is an issue that affects so many people. (Last time I checked, I believe Houston is the only major American city that does not have any zoning regulations in place). For something that has such wide applications, and whose roots we can trace back to a single event 90 years ago, it can't be "wrongheaded" to question its merits/purpose and think about changing it.

[RokgroofeTeme]

Another study done by those Harvard guys addressed specifically the issue of housing prices in Manhattan. Here's what that analysis concluded:

Home building is an enormously competitive industry with virtually no natural barriers to entry. Therefore, price markups over construction costs are a strong indication of artificial barriers to new construction. In the bulk of the United States, the costs of producing housing are hard to estimate because of the lack of reliable data on the cost of land. Nevertheless, available data indicate that especially in expensive coastal areas, there often is a substantial gap between the price of housing and construction costs. This gap suggests the power of land use controls in limiting new construction.

Even stronger evidence of a regulatory impact can be found in the borough of Manhattan. Since the marginal cost of bringing a new apartment to market is well approximated by the cost of building up, construction costs for apartments are much easier to estimate. After examining several sources, we find that $300 per square foot is about the maximumconceivable value of those construction costs in Manhattan. Although this level is high, condominium prices in Manhattan are now routinely two times that amount, implying that one half or more of the value a condominiums can be thought of as arising fromsome type of regulatory constraint preventing the construction of new housing. Other evidence also supports the importance of regulation. For example, over the past 40 years in Manhattan, we have seen a substantial contraction in the number of residential building permits, a decline in the share of new units in tall buildings, and substantial heterogeneity in the height of what does get built.

In principle, regulations limiting building need not be economically inefficient. However, we can find no externality associated with new housing units in Manhattan that is remotely large enough to warrant a development tax that would make up for the current gap between construction costs and apartment prices.

Why is the construction environment so restrictive and why has it become worse over time? Our view is that there has been a re-allocation of property rights over the past 30 years. In the 1960s, land-owners were generally free to develop their property in the manner they desired. However, neighbors have become increasingly effective in opposing new construction in more recent decades. As illustrated by the Battle of Carnegie Hill, media-savvy local residents have become adept at using every means possible to restrict new construction. The result has been a reassignment of property rights from developers to local homeowners.

Of course, the Coase theorem tells us that this reassignment need not be inefficient. However, the reassignment of property rights appears to have resulted in rights that are both diffuse and poorly defined. The large amount of real estate litigation suggests that ownership is hard to clearly establish. Moreover, that politics is frequently involved in property rights may be more closely linked to the ability to generate votes than any pre-ordained legal right. These poorly defined, widely diffused property rights help explain why sensible mechanisms have not come about to allow developers to efficiently compensate existing homeowners for any losses due to new construction. Furthermore, existing residents will always have an incentive to behave like monopolists, and to attempt to reduce supply in order to boost the value of their own home.51In future work, we hope to explore why the impediments to new construction in Manhattan and certain other markets have grown to be so high. Full version available here

[Khurlxgq]

"It's all very theoretical and philosophical, I know, but there isn't a lot of recent precedent for us to know whether it would work or not."

Pianoman, oh yes there is. Why dont you take a trip to some third world countries?.... pehaps Eastern Europe, a hell hole like Albania comes to mind. Or you could even come here to Italy, to see Mafia governed areas in the South where zoning is ignored.

"Somehow, before 1916, the city got along without zoning."

No it did not. Thats why zoning laws were created. That article was written for those will a superficial Disney-fied view of the past.

[Green_Monkey23]

Pianoman, oh yes there is. Why dont you take a trip to some third world countries?.... pehaps Eastern Europe, a hell hole like Albania comes to mind. Or you could even come here to Italy, to see Mafia governed areas in the South where zoning is ignored.

I won't pretend to know what kinds of policies are used in places like Albania or Southern Italy. I don't think, however, that those are appropriate examples to raise. In both instances, in fact, people were/are in charge of making decisions about development, but it was not within the context of an open market. Albania was socialist, and Southern Italy is, as you say, ruled by mafiosos. Surely you must know that socialism or a small, powerful group of crime families would be the last alternatives to our American system of zoning that I would recommend. In both cases, the resulting "hell holes" are undoubtedly bleaker still because of other factors, such as the civil wars in Albania and inept government rule that maintained a depressed economy. Let's try to stick to examples that are easily applicable to things as they are here.

No it did not. Thats why zoning laws were created. That article was written for those will a superficial Disney-fied view of the past. What do you mean by "it did not"? Things didn't get built, the city didn't thrive? Please elaborate on this. And if you aren't familiar with it, the idea of zoning and the eventual laws created were in direct response to a single building.

[JesikaFclq]

Pianoman: there is at least one major city in the US without zoning and thats lovely Houston Texas.

http://en.wikipedia.org/wiki/Image:Greenway_Plaza.jpg

[DF9sLGSU]

That's correct. I also mentioned that in one of my earlier posts.

I take your usage of "lovely" to imply that the lack of zoning in Houston is responsible for its poor aesthetic appearance. The picture you used is just one of many images of Houston. In fact, from the same Wikipedia article comes this image:



That would be the MetroRail system in the downtown area.

But even going aside from that, do I need to point out the rather obvious fact that there are so many other cities that look similar, and in many cases, much worse, than Houston? All of those cities have zoning. Does that make zoning responsible for the unappealing parts of Phoenix, Detroit, New Orleans, St. Louis, Los Angeles (I could go on and on here) that we so often criticize on this forum?

Let's say those cities aesthetics were a nonissue, and that we're only talking about Houston here. What exactly does Houston do so much worse than zoned cities? If you read that Wikipedia article, you'd see that apparently, it does a lot of things pretty well:

Houston is internationally known for its energy (particularly oil) and aeronautics industries, and for its ship channel. The Port of Houston ranks first in the country in international commerce and is the sixth-largest port in the world. Second only to New York City in Fortune 500 headquarters, Houston is the seat of the Texas Medical Center, which contains the world's largest concentration of research and healthcare institutions.

Houston is ranked as one of 11 U.S. world-class cities by the Globalization and World Cities Study Group & Network. The city has an active visual and performing arts scene as Houston is one of the few U.S. cities that offer year-round resident companies in all major performing arts. In addition, the Houston Theater District is ranked second in the country for the number of theatre seats in a concentrated downtown area per capita.

[...]

Locations in Houston are generally classified as either being inside or outside Interstate 610, known as the "610 Loop" or "the Loop." Inside the loop encompasses the central business district and many residential neighborhoods that pre-date World War II. More recently, new higher-density residential development has resulted in an urban lifestyle and state of mind. The appellation “inner loop Houston” carries with it the expectations of cosmopolitan-style city life.

[...]

Houston, being the largest city in the United States without zoning laws, has grown in an unusual manner. Rather than a single "downtown" as the center of the city's employment, five additional business districts have grown throughout the city—they are Uptown, Texas Medical Center, Greenway Plaza, Westchase, and Greenspoint. If these business districts were combined, they would form the third-largest downtown in the United States.

Houston ranks second in employment growth rate and fourth in nominal employment growth among the 10 most populous metro areas. In 2006, the Houston metropolitan area ranked first in Texas and third in the U.S. within the category of "Best Places for Business and Careers" by Forbes.

[...]

Having an active visual and performing arts scene, Houston's Theater District has the second largest number of theatre seats in a concentrated downtown area in the United States, with 12,948 seats for live performances and 1,480 movie seats. The Theater District is located in the center of downtown and is home to nine of Houston's performing arts organizations and six performance halls. Houston is one of only five cities in the United States with permanent professional resident companies in all of the major performing arts disciplines: opera (Houston Grand Opera), ballet (Houston Ballet), music (Houston Symphony Orchestra), and theatre (The Alley Theatre). In addition to its visual and performing arts organizations, the city is host to local folk art such as its art cars. Houston is recognized as an important city for contemporary visual arts. The city is a prime stop for touring companies from Broadway, concerts, shows, and exhibitions for a variety of interests, ranging from the nation's largest quilting show to auto, boat, home, and gun shows.

[...]

Houston's skyline has been ranked fourth-most impressive in the United States when ranked primarily by height, being the country's third-tallest skyline (after Chicago and New York City) and one of the top 10 in the world; however, because it is spread over a few miles, most pictures of the city show only the main downtown area. Houston has a system of tunnels and skywalks linking buildings in downtown. The tunnel system also includes shops, restaurants, and convenience stores. Is any of this sounding bad yet? And should I assume we've moved on from your points about Albania/South Italy?

[blankostaroe]

Let' take it one step further ...

Do away with all zoning regulations -- too "restrictive" upon the free commerce to which all property owners are entitled.

Do away with all building codes -- similarly "restrictive" upon property owners.

Where does it end?

IMHO a "free market" is only free to those with capital. Unfettered it leads to dog-eat-dog and trickle-down BS.

Besides the USA is not a true free market. Rather the economy here is regulated / subsidized in numerous ways, shapes and forms.

The idea that a pure "free market" is workable for society as large and complex as ours is as fanciful as anything produced by Walt and the Disney Studios.

[inofindy]

Fun Facts about Houston and freedom from those darned restrictive regulations ...

Study: Urgent action needed to cut air toxics

Carlos Antonio Rios: Chronicle
The Houston area's air quality suffers from a dense
concentration of industrial plants and traffic.

Risk is higher in Houston area than in other big cities, new report says

Houston Chronicle
September 28, 2006

Concentrations of some carcinogens and respiratory irritants are much higher in Houston's air than in other major U.S. cities', suggesting that federal and state regulations have not curbed the risk posed by toxic air contaminants locally, a study released Wednesday concluded.

The study's authors, a group of eight scientists from five local universities, called for the immediate reduction of the four chemicals in the most contaminated areas of Harris County — neighborhoods along the Houston Ship Channel, downtown and at major highway intersections. They also called on the state to establish stricter and more enforceable standards for the 189 compounds known as hazardous air pollutants.

''These are real numbers. These are concentrations where people are living," said Matt Fraser, associate professor at Rice University and the principal investigator behind the report, which was funded by a $250,000 grant from the Houston Endowment.

''The level of air toxics concentration that we're seeing in the Houston area indicates a high risk to community health," he said ...

[casinobonyanes]

I could take the opposite stance just as easily and say: let's regulate everything. But we all know what that leads to, right?

Here's a question: do you think zoning, as it exists now, is good? Would you change certain things about it? Make it more restrictive, less restrictive? I'm just trying to elicit some opinions here, which are more founded than "look at Houston" or "look at Albania".

Here's my opinion: I think zoning is too restrictive, plain and simple. I think a lot of the rules put in place are misguided, and unjustified on moral and rational grounds. We see the results of this in the increased costs and inefficiencies associated with dealing with zoning restrictions.

Contrary to what might first come to mind, I am not taking a purely pro-developer stance. This is easily realized once you consider that certain developers, namely the ones who have friends high up in city/state governments, will cease gaining favors for certain things such as use of public land, because there'd be no more need for approval. You'd also find a lot more smaller developers entering the market, because costs are now lowered, which means more competition for existing, larger developers.

Don't get me wrong, I think there is a place for government regulation. At some point, a third party needs to step in to protect property rights. But looking at the way it is now, especially in places like NYC, makes me think there's a lot of room for improvement. A lot of us share the opinion that government management of industries - like airlines, energy, healthcare - is inefficient and better left to the private sector. Why not extend the logic to development?

[ViaplyVuple]

Fun Facts about Houston and freedom from those darned restrictive regulations

Correlation=causation? I don't think so. Houston became a mecca for energy companies because of its early role in domestic oil production and an eventual shipping/refinery hub for the massive Gulf of Mexico oil reserves. Pollution is an equally big problem in all other heavy industrial areas, like the Brooklyn and Jersey waterfronts, or the Mississippi River delta.

More importantly though, pollution is recognized as an easily identifiable harm that people need to be protected from. It's a whole different ballpark than trying to decide whether you can build 10 stories higher or whether it can be a hotel-condo.

[Meerenuch]

The author is advocating abolishing zoning (a boon to real-estate developers), but he is arguing against regulatory document filings.

True. However, one has to wonder just how development would have proceeded without the very reactionary zoning regulations were put in place. Somehow, before 1916, the city got along without zoning.

It didn't.

In the half century before zoning, the city (Manhattan) did a poor job of providing housing stock, unless you had money. Opponents of zoning argue that its existence drives up housing costs, but look at the city and its outer boroughs (at that time separate municipalities) before zoning.

Manhattan real estate was always at a premium. The best neighborhoods were just ahead of the advancing city, and north of the city, poor people lived (shanty towns at what is now Central Park). As the city advanced north, rich people moved with it, and poor people repopulated the downtown neighborhoods that were abandoned, the resulting squalor right out of a Dickens novel.

In the outer boroughs, there was less pressure on real-estate prices, and a more stable housing stock was developed. Just look at the incredible variety and amount of housing that exists in Brooklyn. Both areas had no zoning, and then zoning. The difference was the cost of real estate.

Today, real estate value is high throughout the city. no one is much interested in providing affordable housing, and eliminating zoning won't change that.

If I own a vacant lot in Manhattan that I'm willing to sell to a developer, what do you think will happen to my asking price if zoning is removed?

[JediReturns84]

Two points to consider:

1. Houston: I'm guessing the lack of zoning is the result of pressure from the oil & gas industry. They actually drill for oil in the city center, I believe. Can't imagine other cities will ever replicate this. Houston is first and foremost an oil town, asthetics have nothing to do with it.

2. NYC: Glaeser is absolutely right about restrictive zoning in Manhattan driving up prices citywide. Economists usually divide these types of distortions into "income" and "substitution" effects. The "income" part has been repeated often on this board: raising the cost of building housing results in less housing built, which then results in higher prices as there are more bids on the existing homes. This is certainly what is happening in NYC (to some extent) and in California (almost entirely). Look at Boston and San Francisco: why in hell are apartment prices so high there? Yeah, the economy is pretty good, but no Wall Street jobs like New York. But they both have super-restrictive zoning.

The substitution effect, on the other hand, might be a positive for New York. Namely, restictive zoning and higher prices in Manhattan leads to the gentrification of the outer boroughs. Put another way, if there were no zoning in Manhattan, the borough's population would eventually mushroom to something like 3 million, and the outer boroughs would be drained of middle class residents, who could now live in the old Manhattan apartments vacated by rich people (who just moved into the shiny new supertall apartment towers). Not so sure this would be a good thing.

[Abraham]

Zoning laws are not arbitrary. The developer knows going in what the rules are. If his project conforms to zoning, he can build it as-of-right.

It's not that zoning is an arbitrary decision-of-the-moment. As you say, the rules are established before the developer enters the picture. However, those rules themselves are often arbitrary. City planners regularly carve up swaths of land and denote uses; often times, entire districts will be rezoned to respond to changing market conditions.

But there's another arbitrary dimension to it all: the granting of zoning variances. How often do we see certain developers get preferential treatment to build something closer to what they want, while others get turned away? It happened just recently with Trump's project in SoHo.

What does not go away if you eliminate zoning are building codes, and other regulatory procedures. A federal EIS is mandated throughout the country, and various states have EIS procedures of their own. Right - there are certain regulations and laws that must be in effect, and enforced. These almost always have to do with safety, either structural or health-related. It is within the government's interest, and responsibility, to protect citizens from threats. Easy example is the airline industry: still private enterprise, but the government spends money to reduce the likelihood of another hijacking or terrorist attack.

These document filings and approvals are what escalate development costs, and I think they should be combined and streamlined. But the zoning rules tell the developer what is allowed, and it is up to him to determine if he can complete his project within the guidelines. If not, he can either walk away, or request a variance. But how much do we actually know about the developer's ability to "complete the project within the guidelines"? If there must be document filings and approvals to get a building off the ground, then there's also a point at which the developer realizes a return on investment. The thing is, if zoning is restricting the size, shape, or use of your building, you're less likely to turn a profit, and your motivation for development is gone.

In the half century before zoning, the city (Manhattan) did a poor job of providing housing stock, unless you had money. Opponents of zoning argue that its existence drives up housing costs, but look at the city and its outer boroughs (at that time separate municipalities) before zoning. And yet the one thing we keep hearing about the city's housing market today is its lack of affordability.

Manhattan real estate was always at a premium. The best neighborhoods were just ahead of the advancing city, and north of the city, poor people lived (shanty towns at what is now Central Park). As the city advanced north, rich people moved with it, and poor people repopulated the downtown neighborhoods that were abandoned, the resulting squalor right out of a Dickens novel. Right. John Jacob Astor made his fortune by buying up parcels of land north of the population center, then selling them off at premiums when the city expanded. But how much of the squalor was because of a lack of zoning? Buildings and districts that had exceedingly high population densities had to be that way because thousands of new immigrants were streaming into the city every day. The market could not possibly have met the demand that quickly, especially when the majority was too poor to afford a single room, not to say anything of a one bedroom.

Another question is: did squalor start going down right after zoning was put in place? If it did, you have to take into account natural increases in prosperity, which automatically leads to lower housing densities. Jane Jacobs described this process as "unslumming" - previously crowded, filthy slums losing residents as wealthier families move out, while the existing ones spread out and fix up their homes.

(Something else she talked about is diversity of uses, and its implicit benefits for city life. Once you stop dictating what kind of buildings can go where, you can gain a much more vibrant urban environment. Just another thing to think about.)

Today, real estate value is high throughout the city. no one is much interested in providing affordable housing, and eliminating zoning won't change that. And real estate will continue to be expensive in areas that are desirable places to live in, and are in high demand. But if you take a look at some of the empirical findings in that study, you'll see that heavily-zoned areas do have higher per-square-foot marginal costs of construction. Cataclismic shifts in the market won't occur, but if there's an opportunity to reduce costs, it should be explored.

If I own a vacant lot in Manhattan that I'm willing to sell to a developer, what do you think will happen to my asking price if zoning is removed? You'll increase it. However, in a place where building up is much more common than building out, a developer's marginal cost per unit, or per square foot, will go down if you ease zoning restrictions. Suddenly, more developers will see an opportunity to make a profit, and more will end up taking advantage of that opportunity.

Price for land is only one element of the equation. But sticking with it, just think of how much publicly-owned land the city is sitting on, all kinds of reclaimed vacant lots that are left over from the 70s. Suddenly, if all that land is put up for sale at the same time, and developers can themselves determine what the optimal FAR will be, and what kind of uses their buildings will have to take full advantage of market conditions, instead of accepting the city's determination of it, then you simply have a lot more land that is developable. And, because there are more developers, competition will be greater, and prices will naturally go down.

[Toivaluadiora]

I guess you'd toss out Landmarking restrictions along with all the Zoning regulations ...

Bye bye Greenwich Village. Bye bye Chelsea. Bye bye Brooklyn Heights ...

Who wants to live in that version of NYC?

(ps: If that's the plan then please wait about 30 years before you put it into effect -- I'll be dead and gone by then )

[ingeneensueva]

But how much do we actually know about the developer's ability to "complete the project within the guidelines"? If there must be document filings and approvals to get a building off the ground, then there's also a point at which the developer realizes a return on investment. The thing is, if zoning is restricting the size, shape, or use of your building, you're less likely to turn a profit, and your motivation for development is gone

You've missed the point of my criticism of the article.

In the first paragraph, he mentions building permits, years of submitting plans, and long running battles. Then he states a project can be made or broken "on any basis the bureaucrats wish." None of this has anything to do with zoning, and as a real estate attorney, he should know this.

That zoning restricts the size, shape and use of the building is a known, fixed commodity. The variables that cause delays and escalating costs that the developer cannot anticipate are the other things I mentioned.

A perfect example of this is Atlantic Yards. Ratner designed a project to comply with zoning. No one has changed the zoning on him; no bureaucrat has reinterpreted the existing rules to state he is in violation. The delays have come from the EIS, Eminent Domain, lawsuits, and his continual downsizing to appease politicians and the local community.

As far as the Dept of City Planning is concerned, Ratner's original design is in compliance with their regulations.

The only instance in NYC where zoning requires the developer to submit plans that could be subjectively rejected is in historic districts.

(Something else she talked about is diversity of uses, and its implicit benefits for city life. Once you stop dictating what kind of buildings can go where, you can gain a much more vibrant urban environment. Just another thing to think about.)

If you removed zoning, you would, in all probability, get the opposite. All Manhattan would look the same.

But how much of the squalor was because of a lack of zoning?

I never said it was. You said the city got along well before zoning; I said it didn't.

But there's another arbitrary dimension to it all: the granting of zoning variances. How often do we see certain developers get preferential treatment to build something closer to what they want, while others get turned away? It happened just recently with Trump's project in SoHo.

It wasn't a variance.

[LoveTTatall]

It's not necessarily that they [people] have the best interest of others in mind; I think it has more to do with the belief that rational self-interest, when left unpressured by restrictions such as zoning, has a way of benefitting all parties involved. It's all very theoretical and philosophical, I know, but there isn't a lot of recent precedent for us to know whether it would work or not.

I wish that rational self-interest existed, but at least in my neighborhood, it does not. My neighborhood, consisting of houses only, can be one "recent precedent":

The town zoning board says that it is tough on zoning variances, the reality does not appear to be so. Almost inevitably, when a homeowner gets a variance, what ensues is of benefit to the homeowner and not at all a benefit to the neighbors.

There's the woman four houses down from me who paved a freak-show driveway on her front lawn. Down the block, a man with a walker had a gigantic handicapped ramp installed on his front lawn, only to flip the real estate at a large profit right after its installation.

Driveways are doubled to allow for boats. Underground swimming pools draw parties and loud noise from June to September. Ugly boxy monster houses are an epidemic -- being erected all over the neighborhood. All of the above obtained by zoning variances.

Zoning laws are the saviour of my neighborhood. Just enough people like me show up at zoning hearings where residents ask for variances. No neighbor too near me has ever succeeded in getting a zoning variance; needless to say, I am not very popular. If they just wanted to build a house extension, I would give them my blessing, but the variances they have asked for would lower my quality of life.

And they KNOW they're doing something that won't benefit their neighbors! Last summer, my neighbor tried to quickly obtain a zoning variance while I was recovering from major surgery and was out-of-action. So much for rational self-interest.