Property Rights Foundation of America®

Carol W. LaGrasse, from Positions on Property, Vol. 3, No. 2, May 1996

The Better Way

Defeating and Repealing Zoning, Building Codes and Unconstitutional "Nuisance" Rules Before They Affect You Personally

"I wish I had been paying attention when the law was passed," has been said to me many times by people calling for help after they get hit by a zoning ordinance.

The hardest way to fight is when one is personally threatened. The next most difficult way is to get a law repealed after it is already passed. The least difficult, but hardly easy, task is to stop a law from passing.

Naturally, the tactics a person can use in defense of an enforcement can bring in a full array of efforts to repeal the law on which the enforcement is based. This broadening of an individual's outlook has precipitated the involvement of citizens in private property rights work all over the country.

Just as typically, people who are fighting unjust laws are involved in the problems others are already experiencing in their implementation in the same locality or state and elsewhere.

This overlap between a personal defense from unjust law and enforcements and a more issue-oriented, preventative approach directed at stopping a law's passage or repealing a law already in effect means that the material in this issue of Positions which appears to be neatly divided between the personal and the broad is really quite flexible in its application. The categorizations are not meant to be confining but to precipitate strategic thinking. The work for governmental change should involve the full realm from the specific application to the work in the legislative body. And local citizens organizations should remember that if a law has even one unjust application it needs to be repealed or modified. The person who is the victim needs the support of idealistic, organized citizens.

As long as citizens can keep questions of zoning and other codes on a local level, they can control the passage, content and even the repeal of these laws.

How to begin
The citizen who hears about a law slated for passage or who is concerned about a law that has been implemented must go to work immediately and find out exactly what's up.

Ordinarily, the citizen will ask a member of the local government who should be knowledgeable for information. Rather often, the citizen will be misinformed, either because the government official is ignorant, even of he law he voted or will vote on, or is trying to keep things quiet, in order to hide what's going on, usually so that the law will pass without opposition.

Instead of running around in circles with partial information and losing time for important deadlines, it is essential that the citizen obtain all necessary legal documents by asserting his right to see them and obtain copies.

At the same time, the citizen must learn enough about government, by studying law or reading books and by going to government meetings, to be knowledgeable enough about the general processes of government to function intelligently.

The citizen must also keep abreast of the deadlines involved in the passage of laws he in concerned about.

The citizen must apprise himself of the elected and appointed political players, their positions and record, their personal interests and their terms of office. In a rare instance, he may be able to stop a new law by simply apprising a single elected official of the problems and that person will carry on and a bill will die gracefully.

But the latter is so rare that the citizen can usually only hope, if at all, to only gain one or two good elected board members to work closely with him and the citizens' group for passage or repeal of a law.

The most important thing the citizen must do to take back government is to work with others in an organized way using many flexible tactics and carefully chosen weapons toward the goal of repealing, disempowering, or stopping zoning.

Weapons
These are often obvious and familiar. Part of a larger strategy, they work. People win by using the arsenal to its fullest. The order is of course interchangeable, and many steps repeat themselves. Flexibility is at the core of all choices.

1. Freedom of Information Law (FOIL) — Documents
Write letters to obtain copies of all proposals at every draft and final stage, and to obtain all relevant documents. FOIL applies in all states and to the federal government. The federal government agencies must waive charges if you meet certain requirements. Press will often join your campaign as it relates to open government. In New York and perhaps other states, open government law violations are prosecutable.

Use one of your organization's meetings solely for the purpose of studying Sunshine, or open government, law including both freedom of information and open meetings law. One way to focus the meeting is to go over the past few Town, Village, City or County Board meetings or your (planned or perhaps failed) requests for information and discuss how the law applies to these. At the same time, analyze the way the official meetings could be improved.

Do not use open government law as a means of harassment or disruption. In fact, one of the biggest problems at local meetings is discourtesy by governing officials toward the public and toward a minority member, which includes using members of the public for harassment. (This admonition does not mean that you should not be perfectly assertive, even forceful, in your efforts, calling for resignations, driving a board to resigning, forcing them out of office in court and the like.)

(FOIL is discussed in more depth under "Face To Face" on page 12.)

2. Open Government Law — Meetings
Attend yourself or have one or two members of your citizens alliance attend every town or county meeting that may be relevant to your cause. Don't allow yourself to be excluded from any government meeting. "Workshops," committee meetings, even banquets at restaurants, can be monitored by citizens when a quorum is present. You may even request an appointment to tour an agency.

3. Study
Analyze and understand the laws or proposals. Analyze exactly which clauses will be troublesome and why. The easiest approach is to take the few most important features and focus your efforts to reach the public on these, so that people can hear something they remember.

If you are involved before the code is formulated, learn who is behind it (always do this anyway) and get a copy of a code they've enacted somewhere else.

The list of zoning abuses in this issue are meant as a guide to help you study your proposed code and make a formal presentation in criticism of it, as well as to make a flyer for the public. It is a list of what to look for to predict future trouble and to explain current difficulties.
If you already have zoning, you will be able to see how abuses under your code fit these categories and explain what is up with a written analysis, speeches and perhaps a flyer.

4. Get the word around
Select a group of people who will be affected as your first contacts, such as small business people whose establishments are located in a proposed historic district, or business people and home industries who will be "non-conforming" uses if a residential zone in a new zoning plan is enacted. Contact them. This could be to gather a core for a planning group or for your group's first big meeting.

5. Make a good, short flyer with honest information
This flyer can be used to contact people for a first meeting. It has to be clear, honest and powerful enough to bring people out.

6. Organize a group
Your group can be your husband or wife and another friend or couple to start with!

7. Get people together
Get people to town meetings and to meetings of committees where the issue will be discussed. Make prepared statements.

Get people to your meeting. Have an important, packed meeting. Be sure to have a sign-up sheet (and later use this to contact these people personally). Plan the meeting very carefully. Be open but do not lose control by letting a potential hostile Question and Answer period drag on too long so that disrupters take over.

Introduce your leaders. Make people welcome. Have informative, exciting speakers or one excellent, even powerful, speaker. Learn to convey important information to the group. Good leadership and a good meeting can change the course of events.

Tour potentially affected businesses and property.

How to get people out
Flyers, press-releases, billboards, posters, personal calls, calls from their friends, invitations to officials, letters to the editor, good speakers and topics that effect people clearly are important. Serve free, home-made refreshments. Do not charge for them or for the meeting. Have a table for donations and membership near the door or pass the plate half way through the meeting to help meet expenses.

8. Reach the media
Letters to the editor can be used to discuss issues and help announce meetings

Use press releases and personal calls to invite media to your meetings, to court hearings, and to cover events and human interest stories. A press release must have genuine, new, factual information the media would not otherwise know such as your meeting or rally notice, the notice of a lawsuit you are bringing, the results of your study.

Learn how to write a press release professionally. Contact PRFA for guidelines or send $5.00 to Alan Caruba (P.O. Box 40, Maplewood, NJ 07040) or to The National Center for Public Policy Research (300 Eye St., NE, Ste. 3, Washington, DC 20002).

Give documentary information to members of the press.

Continue to keep members of the media you get to know personally apprised every few weeks. Follow prosecutions of zoning violations and give the press updates.

Piggybacking on another or someone else's event

If your group hasn't got much membership or influence yet, or even if it does, you can get nearly free publicity for your ideas by staging a press conference, or a protest, when a noted speaker such as a governor who is ignoring you, is at a location, or when another, opposing group, has an event. In October 1995, a few bedraggled members of the $43 million, 553,000 member Sierra Club staged a disruptive underdog-style protest right inside the hotel where the Property Rights Foundation of America held its First Annual New York Conference on Private Property Rights. The $37 million, 600,000 member National Audubon Society issued a press release "warning" about the conference. Their piggyback tactics actually backfired because they caused this organization, which is relatively small, to get unrivaled publicity. But the Sierra Club protest and National Audubon's press release are good illustrations of how to bounce these publicity methods off someone else's events.

9. Bring in good "outside" speakers
Well-publicized meetings with a special invited speaker can give your cause a great lift and increased credibility. Your group can learn new information and ideas. The speaker need not be famous but is likely to get more attention if he has special credentials and is from outside the area or the state.

10. Get documented tales of woe locally
Carefully written background pieces about local prosecutions of zoning violations should be used at meetings and shared with media. Have the individuals speak at one of your meetings. Bring them to town board meetings to speak and use their documentation.

11. Hold rallies, protests, civil disobediences, disruptions, parades, motorcades
When dangerous, unconstitutional plans are coming in force immediately and your region's power in the Legislature, the Congress or even in local government is next to nil, it is essential that you convey your message. Defend yourself against tyranny without hurting anyone. Protest. Saul Alinsky's classic Rules for Radicals, available at libraries and easy to read, conveys an attitude that helped poor people exploit their own unrecognized strong points to be heard.

The most important rule is that the protest has to reach the people you want to be heard by. If you are trying to reach your neighbors with a protest, which seems unlikely as their are easier ways to reach them, do the protest in your own backyard or on main street. In early 1990 none of the news about the anger of the people of the Adirondacks was getting out of the "Blue Line" which borders the region. Therefore, the new Adirondack Solidarity Alliance led by Dale and Jeris French led the people on a slow motorcade of pickup trucks, ordinary cars, junkers, logging trucks, floats, and even a "honey wagon" along the federal interstate linking the New York State capitol of Albany with the Canadian city of Montreal. Stopping interstate and international traffic not only caused arrests of people of all ages (subsequently dismissed on the basis of freedom of speech), but brought TV coverage and headlines in major dailies.

The second rule is that extremely big protests and rallies are generally good for only one shot. After the first event, your group is like to have to put its energies toward more sustained effort. This long-lived effort should include a crowd at your meetings and the most important government meetings, always keeping in mind critical votes, decisions, or speeches by leaders.

12. No trespassing sign campaigns have been an effective way to get attention. Signs have some legal clout. To find out how to obtain a powerful "no trespassing" sign against government officials, inquire with Bill Rzadko (1245 S. Lapeer Rd., Oxford, MI 48371).

13. Petitions
Petitions are effective if a large number of signatures are gathered quickly and the petitions are presented to an important government official with plenty of press and fanfare. It is important to realize that, unless the petition is part of an official legal referendum process, it must be just one part of a thought-out political strategy. When officials vote against the petition of an overwhelming number of citizens, the resulting anger can turn them out of office.

14. Public hearings
Often at committee hearings held by legislatures and Congress, genuine input is sought from experts and the public to help members frame legislative policy. But when zoning and building codes come down and regulations to implement state laws are being promulgated, hearing are mainly to fulfill the formal requirements of administrative procedure law. These hearings are hard to use to have input into the final product because the officials are appointed at a state or even federal level.

When County, Village and Town bodies hold hearings, the officials are usually not looking for serious input. But these officials are indeed susceptible to opposition and ideas for revisions, because the people speaking up are the ones that elect them. Therefore, it is important to have large crowds at hearings called by local elective bodies and to make articulate statements.

Public hearings are not informational meetings for the public to hear from government. They are for the government to hear from people.
Citizens must insist on being heard during prime time, so that the press covers their speeches and all of the public are still present. If government officials refuse to turn over the floor after 15 minutes or so, citizens can take over or walk out en masse.

Citizens must make presentations at public hearings that speak in a useful, practical and inspiring way to the other citizens present and to the press. Unless a situation arrives when a majority of any officials conducting any public hearing are genuinely committed to killing any measure that infringes on the responsible freedoms of citizens, hearings remain hostile situations: the citizen before enemy government. Citizens should stop cowing and tiptoeing and speak out — to both government and each other. They should take back public hearings.

The best way for citizens groups to view public hearings is to appreciate that with no expense and effort they have been given a forum before the public, the press and recalcitrant government to speak clearly against further infringements and to rally more people to their cause. The hearing is a gift to the citizen, to use as a good weapon in spite of its evil purpose to validate repression.

15. Run for office
People are being elected to office at every level on uncompromising freedom platforms. In 1995 Concerned Citizens of Hector, New York elected two new members to the town board and in January 1996, as a result of the election, the town board voted down its proposed zoning.

In Durham, New York, Bud Slater led a movement against zoning. After successful elections turned the town board over, Slater's new town board abolished the zoning commission.

In 1996 Larry and Vickie Connelly and Bob Lamoy formed the Coxsackie Awareness Group to successfully defeat an excessive zoning plan for their town on the Hudson River. The zoning plan was precipitated by the federal Coastal Zone Management Act of 1972, being implemented over many years by the New York State Department of State.

Nathan Lapp led a citizen's effort in 1995 that held off all zoning in the western New York town of Charlotte for the third time since the 1960's.

Gary Vegliante led a homeowners' association to form a separate village of Westhampton Dunes on Long Island so that tax revenue could be used to defend private property from other government levels. The new Westhampton Dunes building department grants permits in two weeks.

One town in New York State, Argyle, has repealed its zoning law. The rural Washington County town had enacted zoning in 1991 after a long drawn-out effort by local citizens to stop a solid waste dump planned by Browning Ferris Industries. Later that year, the farming community elected a new supervisor, Glenn Jones, and two new councilmen on a platform of eliminating zoning.

"Remember, (the supervisor and new councilmen) were elected to get rid of zoning. That's what people put me in office for," Jones told the meeting of the town board early in 1992. "I'm sitting here to get rid of it."(1)

The town went through the same elaborate environmental review procedure to eliminate zoning as is required to pass it, and repealed its zoning law in 1994. Glenn Jones remains supervisor of Argyle six years after being elected on the repeal-zoning platform.

Even a single member of a town board can be an effective vehicle to open up government, keep the citizens informed and bring about reforms. But once a lone citizen gets elected, the more common result is that he quickly assumes the governing mindset and loses all rapport with the concerns that put him in office.

The most successful efforts to reform government through the elective process involve a local citizens committee with a whole-hearted, principled effort to elect one or more of their committee to government and continue working after elections for the reforms they seek.

16. Seek removal of corrupt officials
In New York State, citizens can go directly to the State's second highest court, the Appellate Division of the Supreme Court, to petition for the removal from office of any elected or appointed town official who is guilty of malfeasance, graft, extortion and serious conflict of interest. In the procedure, the citizen acts as prosecutor before a court referee. All of the usual civil court procedures such as examination before trial and presentation of evidence apply. The court fee is minimal.

Joe DeFalco of Baldwin, Long Island, who was trying to develop land upstate, won the removal of the entire Town Board of the Town of Delaware in Sullivan County. DeFalco secured the removal of tax assessor Richard Ferbe in 1993, who had tripled his taxes in five years. In December 1996, he won a federal racketeering case against local officials for bribery and extortion. Treble damages under RICO brought a total award of $2.5 million to $7.5 million against the Delaware Supervisor William Dirie, former Delaware Planning Board Chairman Edward Curtis and former Sullivan County Administrator Paul Rouis, as well as contractor John Bernas.

Some people who are angry with graft, incompetence and unequal treatment unwisely suggest eliminating local control of zoning in favor of state government control. They miss the point that state-level government is just as corrupt as local but less scrutinizable, less accessible and less responsive to the electorate.

17. Use environmental review law against zoning laws
New York State's SEQRA (State Environmental Quality Act) and Federal environmental review requirements under NEPA (The National Environmental Policy Act) require consideration of long-term economic and community impacts of all significant state government acts or federal government environmental acts. Projects cannot be "segmented," which should mean that a zoning law cannot be viewed in parts. Citizens have an exceptionally broad right to be in court (standing) to sue under the environmental review laws, including where they seek to protect the economic and cultural heritage of people.

18. Propose new laws to protect freedoms, modify existing laws
When it appears that a clear defeat of a law is impossible or that a law cannot be repealed, it may be possible to modify the law. Limitless possibilities present themselves to modify zoning, building code and nuisance laws that already exist as well as new laws being passed. It may even be possible to pass compensation laws and takings impact study requirements that apply to existing zoning, building and nuisance codes. These possibilities are fundamental contradictions when a restrictive bill is being weighed, however, and can only be used for monkey wrenching a freedom-infringing bill which has majority support. With existing laws it is worthwhile to tackle reforms piecemeal and gradually eliminate many onerous clauses such as mobile home laws, home maintenance laws, junk and unlicensed vehicle laws, non-grandfathering of non-conforming structures, and home-industry prohibitions.

(1) Don Lehrman, "Argyle law may soon be repealed" Glens Falls Post-Star Feb. 13, 1992

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