Property Rights Foundation of America®
Founded 1994


A Threat to Private Property Rights

By Carol W. LaGrasse
January 2002


Comments on the "Public Notice" by Town of Ischua Alleging "Confusion" about Implementation of a Planning Board and Zoning Board

Part I a- Planning Board - Introduction

The introduction in the Town of Ischua's public notice claims that the purpose of a planning board is to plan for the future needs of the town for parks, recreation, senior citizens' needs, and industrial development, and to obtain grants, which will have "no impact" on the tax base.

Parks. The town does not need an all-powerful planning board for all aspects of the town, especially the private land use, in order to plan for public parks. This type of planning can be done by a town board committee or joint committee of the town board and a citizen advisory board on an issue by-issue-basis, confined to parks issues.

Recreation. Recreational needs can also be addressed without creating an all-powerful master planning board. A committee for parks and recreation already exists on many town boards. The addition of a citizen advisory board would bring in volunteer expertise and citizen commitment without generating an all-powerful regulatory bureaucracy.

Senior Citizens' Needs. A special town board committee to address the needs of senior citizens, also with the possible assistance of a volunteer advisory committee, would completely defuse this excuse being used to argue for an all-powerful general planning board. There is no logical reason to create an agency whose central purpose is to create the master background map and plan for government control of all land use in the entire town just to address senior citizen needs.

This reason is a ploy of people who want more government control over the population and their private property.

Professional surveys of the needs of senior citizens can be taken without the existence of a general town planning board.

Senior citizen needs, such as for additional transportation, moderately priced living space, and other common needs, might require planning on a town-wide basis. Private or government entities could become involved, but care should be taken that government does not structure "solutions" that compete unfairly with the private sector. Municipal transportation for the disabled and elderly is inexpensive, in the context of a town budget, and can easily be established. Housing, on the other hand, can be expensive for taxpayers and can unfairly compete with the private sector. Housing vouchers, paid for by government or a charitable agency, but usable across-the-board toward rental of existing or new private apartments, can serve to stimulate new rental construction without unfairly favoring quasi-government agencies to the detriment of private rentals.

Industrial Development. A powerful planning board for the entire town is irrelevant to industrial development. One useful step toward industrial development, a survey of businesses for their ideas of current impediments to industrial development, would discover in many towns that regulation and taxation impede industrial development.

Both of these factors argue against a new regulatory agency—because it adds regulation and because it costs money.

To attract new industry, a planning board is the wrong agency. A committee of the town board, joined with civic leaders who are genuinely concerned about the future of the town, to form an effective working group, meeting with promising industries, and promising the benefits of low regulation, low real estate taxation, and a willing labor force, is more promising than a new regulatory agency. The members of the committee should have a proven track record in establishing new business or attracting new business. The committee, whether a government one or a private civic committee, can engage a professional consultant with a proven track record in attracting new industry to localities.

Funding. The town notice states that, without a planning board, none of the funding from numerous state and federal grants is available. It is true that without a planning board, funding for the work of a planning board is unavailable. But for the actual activities of developing parks, recreation, senior facilities, industrial development, when the thinking processes of any official committee reach the stage for the need for professional level presentations, consulting professionals would be called for, whether to assist a master regulatory planning board or a working, non-regulatory committee, and could effectively make presentations just as professionally as would be the case if hired by a planning board.

I b. The Supposedly Benign Planning Board

The town board's public notice makes the point that the planning board would be appointed by the town board, as though this is an attribute, and would work voluntarily. The planning board would have no ability to enact laws, says the notice, and it's only purpose would be to "suggest ideas" to the town.

An Appointive Board. The town board's notice probably means to imply that the planning board is trustworthy because it is responsive to the local town board, which would appoint it. The fact that a planning board is appointed, however, makes it less responsive to the citizens than if it were elected directly by the citizens. Planning and zoning came into the state's legal system when a philosophy of keeping the voters out of directly selecting town officers came into vogue. In the older parts of the state's system of town government, councilmen, supervisors, assessors, judges, town clerks, tax collectors, highway superintendents, and even judges are elected, to this day. The State is trying to eliminate the office of elected local assessors, with various contrived inequities to discredit it, however.

One of the deficiencies in the system of town government in New York is that the offices of planning and zoning boards, zoning and building officers, which are newer, have been appointive. This should be changed in the state law. Meanwhile, it is hardly an argument in favor of having a planning board that it is appointive, even if by the town board. Who else were the citizens to fear would appoint the planning board? The State?

Statewide, a major problem that citizens complain about is that planning boards and zoning agencies are appointed and that is very hard to get them out of office because their terms are generally relatively long. They become an elite ruling group. It is easier to replace town board members than to replace planning board members.

Voluntary Members. The selection of the word "voluntary" implies two aspects, that such individuals will work only in a kindly way, to the good of all the citizens, and that the planning board costs the taxpayers little or nothing.

Both inferences are of little merit or false. Planning boards may not be kindly. They lay out onerous regulations for land-use by conceiving of and formally drawing up maps and conceptual land-use controls that cause ordinary property owners and businesses losses and trouble.

Planning boards cost money. They cost the town money for paper work, especially for planning and landscape design consultants, for lawyers on retainer or as consultants to advise them, and, of course, for all the projects of the planning board, which never turn out to be one hundred percent free to the taxpayer because of grants. Lastly, when the plans are codified into official maps and rules, the town board has to pay lawyers to defend the lawsuits brought by the people whose property suffers regulatory takings.

Furthermore, when their planning instruments become part of the codified body of law in the town, planning boards cost the property owners money, to comply with all of the submissions that must be professionally prepared, to add additional costs to the actual construction, to pay for mitigations and exactions, and, ultimately, at times, for lawsuits.

"Suggest Ideas. The town board's public notice claims that the planning board is there only to "suggest ideas."

Would that this were so. "Suggest" is a misleading word, to say the least. So is the word "ideas." A map of the entire town which embodies the restrictions on land use that are to be enacted in each zone, officially commissioned and funded (with or without grants) by the town board, to be presented to the town board by an official body appointed by the town board for that purpose, will hardly be a "suggestion." Likewise, a detailed map of the entire town, officially proposed to control all land use into the future, to be backed up with detailed regulations, is hardly a mere "idea."

Instead of the word "suggest," the words "propose officially" would be accurate. A planning board proposes, at the town board's official request, an official map of the town to be accompanied by a voluminous set of regulations of land-use for a township. These are not mere "ideas." The proposals by a planning board for a town plan, including town-wide zoning, are to be explicable by 50 to 100 pages of detailed laws requiring the expertise of a lawyer to understand.

To say that the purpose of a planning board is only to "suggest ideas" is such a distortion that it raises the question of whether the author of this public statement designed it to deliberately deceive the trusting public. "Suggest" and give "ideas" are what the public will be able to do when the planning board and town board hold hearings on the onerous zoning map and rules to be developed by the planning board and town board (in conjunction with the zoning board mentioned in the second part of the public notice). By the time public hearings arrive, the town zoning plan will have so much invested in it that it will become very hard for the citizens to "suggest" their "ideas" for less regulation and less taxation.

Part II a. The public notice claims that a zoning board of a temporary nature, to develop the rules and regulations, will be separate from the planning board.

The town board has apparently decided to appoint a committee called a zoning board to develop the zoning law for the town board's deliberations and passage into law after a public hearing. The town board could have itself taken on this task of writing the rules, perhaps by assigning it to the attorney, or it could jointly create the body of law with the planning board. The planning board will probably be part of the deliberative process. It doesn't really matter whether the "zoning board," as the public notice calls it, is temporary or permanent. The final regulatory structure to enforce the zoning law is what matters. In any case, in the end the structure created by the town board will be roughly as follows:

Final regulatory structure: The town will have a planning board, which is an entity that keeps the town plan, which ultimately, perhaps through a process of redesign into a regulatory document, becomes a regulatory zoning map, up to date and may do other projects for the town of a planning nature. A new permanent employee called perhaps a zoning enforcement officer, will enforce the new zoning law. Appeals from the decisions of the zoning compliance officer will be either to the town board or to a new body, the zoning board of appeals, if the town board establishes such an agency in the new zoning law.

Public Health and Safety. A seemingly slight, but important, distortion in the town board's announcement claims that the first goal of the zoning law will be to protect the "public health and safety."

The public health and safety can be protected by health laws and by the building code, both already in effect as exhaustive state-wide laws. The ordinary citizen can easily be misled by the term "public health and safety," because in reality this phrase is expanded to include "public health, safety, and welfare." The term "welfare" brings in the government power to bring in land-use regulation of every nature, such as prohibiting home businesses, stopping farmers from selling housing lots after their land is zoned "open space," and even stopping a person from living in the same building as his business establishment. Business signs are usually restricted in non-commercial zones. "Grandfathering" of existing land-uses will ordinarily be promised, but zoning law often has the limitation that the expansion of the use in a non-conforming area will be prohibited. Non-conforming uses can be "amortized" by the zoning agency, to be phased out after, say, ten or twenty years.

The way to estimate the impact of just the home business aspect of zoning is to take the draft map and drive down the streets zoned residential or another category that prohibits business and record the number of businesses of every nature in the zones.

But there will be countless aspects of the impact of zoning that will infringe on the property owner's use of private property. Another obvious example is that house plot sizes will be mandated that are too expensive for the average buyer, such as a young couple, to afford. Although mobile homes are the main style of housing for young married couples in rural New York, zoning laws often prohibit them outside of mobile home parks, where the young family would not be able to own the land or share in the use of family-owned property. (A publication "Zoning and Building Codes," of the Property Rights Foundation of America is available for more details, and the Property Rights Foundation also has much of information about zoning on its web site:

Protection of Individual Property Owners. This claimed zoning virtue promises trouble to the individual property owners whose plans for their land do not please the type of property owners sanctioned by the zoning law.

Actually, this promise is a ploy because zoning provides little protection for the ordinary property owner. Town government is one of the biggest violators of zoning, often manipulating zoning rules for its own purposes. In a scandal unfolding during 2001 on Long Island, the Town of East Hampton reportedly condemned residentially zoned land adjoining the town dump and acquired it for $20,000 per half acre, then rezoned it as light industry, making it worth $150,000 to $200,00 per half acre.

Government may change zoning at any time to suit powerful or connected interests. At the same time, the ordinary owner has an uglier form of "protection." He cannot use his land for the intended purposes! But hiring a lawyer is expensive and often would cost more than the land is worth. Zoning agencies know this, so they routinely violate the property rights of land owners, even when the United States Supreme Court issues clear rulings stating that zoning practices are unconstitutional.

Encourage and stimulate logical, controlled growth. This claim sounds better than real experience. It falsely assumes that central planning by bureaucrats and professionals is more functional and desirable than the planning that many landowners, operating for the good of their interests, combined with their own civic sensibility, will do on their own. One obvious fault of zoning can be found in the denouncements of the zoning advocates who cry "urban sprawl." They never concede that the lot size requirements that made suburbia sprawl out are the product of zoning. The old-fashioned village centers with their closely spaced one- and two-family houses, and stores with residential apartments overhead, are all illegal under modern zoning.

But it is unnecessary to evaluate every nuance of the failure of central planning. Another solution is available— voluntary zoning; this is being practiced across America with "gated communities." The well-to-do property owners who would like to have strict zoning can simply buy into a gated community, without having to restrict the rest of the population. In fact, gated communities are one of the biggest areas of real estate construction growth. Other means of voluntary zoning, such as compacts between neighboring property owners, have a long tradition, as do enforceable easements accompanying subdivision plots created by developers.

Not Designed to Infringe upon Individual Rights or Freedoms. In one respect, this outrageous claim for zoning should be appreciated because it should serve as a warning by flagging the real truth in the course of protesting the opposite. The docket lists in many courts of law reveal how property owners would react to the claim that zoning does not infringe on their individual rights and freedoms! Zoning drives property owners crazy! One nationally respected property rights activist, Jack Down, Ph.D., in East Lansing, Michigan, keeps a tally of stories of "death by zoning," people who committed suicide or murder because of zoning.

Speaking of the zoning board, the town's notice says, "The Board is not designed to infringe upon individual rights or freedoms but rather to provide assistance in developing a better community."

If the zoning is enacted, starting with the planning board in phase I, many property owners will discover the hard way that exactly the opposite of this empty reassurance is true.

The way to defeat zoning is to start by defeating the proposals for the planning board and the zoning board.


The Town of Ischua's Public Notice

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