from PRFAs Twelfth Annual National Conference on Private Property Rights
October 18, 2008

WELCOME

ZONING AND BUILDING CODES:
RULES BEYOND REASON

By Carol W. LaGrasse
President
Property Rights Foundation of America, Inc.

Twelfth Annual National Conference on
Private Property Rights
October 18, 2008
Holiday Inn Wolf Road, Albany, New York

Welcome.

Greetings! Welcome to the Twelfth Annual National Conference on Private Property Rights! I hope that you enjoy the theme of our event: “The Other Side of Zoning and Building Codes.” I appreciate your presence this year more than ever. We face difficult economic circumstances and it may have involved sacrifice for you to join us. I appreciate that you would take your precious weekend to come to focus on private property rights.

Distant Travelers.

In addition, it is a special honor that some of you have traveled from a great distance. I’d like to applaud especially Ed Navin and his son Darren, who have come from Montreal. Please stand and remain standing as other names are called. Jane and Holt Hogan have made the conference their way station between Maine and Virginia. Please stand. Kurt Christensen has traveled from Virginia. Kelsey Zahourek, representing the Property Rights Working Group of Americans for Tax Reform, has come from Washington D.C. If you all could stand and take a round of applause, that would be great. Thank you for joining us today!

Co-sponsors

In spite of the losses that many groups experienced with their income and investments this fall, our generous Co-Sponsors continued to support this event. Before and after the conference we received generous Co-Sponsor donations from the Competitive Enterprise Institute; Homeowners Against Rent Kontrols (HARK), whose president Adrian Tiemann many of you know; National Center for Public Policy Research; New York State Farm Bureau; Rent Stabilization Association of N.Y.C.; and The JM Foundation (founded by Jeremiah Milbank). Gardiner Residents for Individual Property Rights (GRIP) became an official Co-Sponsor. The loyalty of these individuals and their organizations is a great practical help, in addition to being an honor. We thank them heartily.

Introduction

At our conference today, I hope that you’ll gain a deeper understanding of the perversity of much of what passes today for conscientious government — the expansive dominion of zoning and building codes. At the same time, it is the intention of calling together these speakers to address you that you’ll think of changes in directions, reforms, and solutions that can indeed make personal life and business prosperity less constricted by the unjustified hand of government. The third sub-theme that I’d like to ask you to keep in mind is one of working together. At each of our conferences I am so happy to see that people are meeting each other, both the attendees and the speakers and forming acquaintances and friendships, and even on occasion working on issues related to private property rights together. Please do not miss this opportunity. In addition, please think of how each of us, and our organizations can work together on the issues that come before us today. No one organization can bring about the degree of change that we seek. Many of us must ingeniously work together. Your contributions, ideas, and leadership are the heart and strength that we so greatly need.

Rules Beyond Reason

The Urban Experience

It has been so many years ago that I repeatedly observed the malfunction and negative results of zoning and building codes, and my reservations have been reinforced for so many decades, that today I am unabashedly opposed to all but the most rudimentary statutory permit systems for siting and building. As a young civil engineer in New York City, I learned that the building permit requirement was a surrogate for a system of magnifying the salary of permit officials several times, with schedules of bribes efficiently communicated. I saw how pre-zoning industrial and residential construction were functional and resulted in pride-worthy neighborhoods, but zoning didn’t protect the little neighborhoods and the life-ways in the face of big moneyed development, coupled with big-city planning goals. It was an easy lesson to see that disorderly conduct and vandalism was more effective in defeating destruction of multigenerational neighborhoods than polite participation in public hearings as good citizens. It took a little longer to realize that public hearings weren’t intended to provide for consideration of opposition viewpoints, but to create a record for the validation of interest groups who controlled the process from the inside.

The Rural Extremism

The Adirondack Park Agency and New York State Department of Environmental Conservation honed my hate for regional zoning, that is, a zoning agency appointed by the state governor. It is hard to imagine the open-heartedness and faith in intelligent and ethical considerations with which I spoke at one of the first hearings of the Adirondack Park Agency, back in early 1973, a few months before we moved to the little town of Stony Creek in the southeast corner of the Adirondacks. But it was a formative experience for me. I did not fully understand what I was witnessing at the time, but I remember parts of the event 35 years later as though I were there. Plus, I took notes.

The hearing was held in the purple velvet and gold hearing room of the Chamber of Commerce in Manhattan. Richard Lawrence, who became the first chairman of the Adirondack Park Agency Commission, presided. The moment that taught me the reality of the APA, as it is known up north, was when he stood behind the podium and introduced himself. The podium was a classical wooden structure and movable. He picked it up and walked about ten feet to his right and set it down. Then he looked over his shoulder at one of the many very large gilt-framed oil paintings of dignified men whose portraits covered the walls of the hall. He turned back to the audience and said, “I feel much more better with my granddaddy behind me.”

Over the years, it was demonstrated countless times to me that the great territory of the Adirondack North Country was governed by wealthy families in Manhattan, with the environmental groups as their public face.

That day began my perfect record making many, many statements at Adirondack Park Agency and Department of Environmental Conservation hearings. Not one of my remarks ever inspired any change in any land use plan or regulation.

One aspect of zoning that people do not understand is that it always gets worse. For instance, the Adirondack Park Agency has 42 acre and 8 acre zoning for 87 percent of the 3 million acres of private land. In 1990, the agency sought legislation to change the zoning of these lands to 2,000 acres per house. A great outcry and mass effort blocked this legislation. However, the APA and DEC are accomplishing even more harsh land use controls, by working with The Nature Conservancy and the Conservation Fund to buy conservation easements in land where absolutely no development will be allowed. The state has now added 700,000 acres of conservation easements to its 3 million acres of Adirondack land owned outright.

Building Codes - Urban and Rural

Just as with zoning, building codes have their urban and rural manifestations. One of the greatest public health improvements of the ages was the sewering of New York City and urban areas. In Chicago, the Sanitary Canal was built to direct waste water to the Mississippi watershed and eliminate the cholera that swept through the city because the Lake Michigan water intake was too close to the sewer outlets. In the days when my grandfather was a little child living with his mother during the Civil War while his immigrant father served out his war conscription in the South, his mother and his sister both died of typhoid. His father came home to the flat with his family almost gone. The Germans were succeeded by Jewish immigrants twenty to thirty years later, but conditions improved for the new immigrant wave. They had flush toilets and sewers, rather than shoveled out privies in the basement shared by five or ten families.

Sanitation codes saved lives. Early building codes protected people’s lives also. The requirement for fire escapes from three family houses and tenements, the requirement for brick fire walls, and the like were hallmarks of early twentieth century humane regulation that made congested city life far safer.

Rural New York had no state-mandated building code until well into the 1980s. A fire in a Westchester hotel that claimed many lives resulted in the Legislature taking up the cause of requiring a uniform building code for every square inch of rural New York. It was impossible to stop. The groups who were concerned with housing justice were offended by the idea that a building code was anti-housing. A typical response from such a group was, “We want to put people into good quality housing.” Homeownership and independence did not matter to potential allies to stop the code; nor did the irrelevance of the literally volumes of requirements to safety and health. The only effect that Peter’s and my pitifully weak opposition effort had was to see certain clauses removed, mainly one that would have retroactively made every one of the hundreds of thousands of railroad flats in New York City illegal. The Code Council officials were amazed to find a clause in the code making it retroactively illegal to live in a dwelling where one room had to be walked through to reach another room, and there were and are hundreds of thousands of apartments and houses with this arrangement.

The New York State Uniform Building Code went into effect on January 1, 1984. It effected all new construction. Until the new code went into effect last year, a building permit was required for significant alteration such as structural changes. The code that the state currently imposes, a modified version of the International Building Code, requires a building permit if the owner makes any repair to the building. This includes new roofing and siding. It goes beyond changes to the layout of windows and includes the installation of new windows in the same structural frame.

The Uniform Building Code was already impossible to enforce, just as enforcement of New York City’s then-new building code was impossible decades ago, with its interminable layers of inscrutable requirements. It took the fairness and practicality of the best rural building inspectors to use the code where it could be helpful to the homeowner and look past the details of the code that had no practical application to the class of home that the family lived in and could afford. If there were ever a practical intention to apply the new code to rural and small town homeowners, the cost to municipalities to inspect the amount of details involved would be insurmountable. New York City has just put in place its own new building code.

Building codes have had a century of extension beyond public health and safety into countless quality requirements. Simple, structurally sound rural homes, such as geodesic domes that would cost less than a thousand dollars, are illegal. Individual houses for the homeless are illegal. Dweller-built rural homes are illegal but are often allowed, especially those that are enlargements to second-hand trailers. However, often these houses cannot get certificates of occupancy. Zoning rules outlaw most cheap rural houses, anyway.

Building codes obstruct rebuilding after disasters. This has been heart-wrenchingly demonstrated after the Hurricane Katrina devastation in New Orleans. Building codes obstruct the use of professional fire suppression assistance, where wood-burning stoves exist because rural people who burn wood for heat use inexpensive, perfectly safe, but uncertified, stoves and (quite reasonably) won’t call for help when they have a chimney fire.

On the other hand, stricter code requirements are sometimes justified. But even here, the right outcome is not guaranteed. Where the Uniform Building Code could be used after 9-11 to improve chances of surviving a major fire in a skyscraper over 40 stories, federal officials and interest groups are active to gut improvements to improve fire safety and add a hardened exit stair. Another irony is that over two decades after the State of New York imposed a uniform building code on its homeowners because of a hotel fire where people were entrapped, the retroactive requirements for safe egress from public buildings such as churches are not uniformly enforced.

When I think of zoning and building codes, I reflect that it is only natural that corruption and influence creep in and infest the implementation of such elite, impractical, pervasive laws. The corrupt exploitation of building and zoning laws is opportunistic, whether it is NIMBY (not in my back yard) groups obstructing the rights of neighboring property owners or city officials using the building permit system to extort exorbitant fees that make up for deficiencies of real estate tax receipts.

You’ve probably noticed that the issues that our speakers will address today are of significant current interest. You may also notice opportunities for our involvement. Keeping in mind that private property rights are a unifying factor in every one of these themes, I welcome your comments today and urge your future participation.

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