planning and zoning — VOICES for REASON

The zoning law for the City of Hermosa Beach, California, starts by stating that “no building shall be erected, reconstructed or structurally altered, nor shall any building or land be used for any purpose . . . .” Let’s pause and allow that to soak in. The logical starting point for this zoning code—which is typical of zoning laws nationwide—is that landowners have no right to use their land for any purpose at all.

Of course, that’s just the beginning. The ordinance then goes on, in excruciating detail, to list exceptions to the general ban on property use. But these uses are “permitted uses,” not rightful uses. And without political clout, owners wanting to put their property to an unpopular use—say, opening a tattoo parlor—will fail to garner enough votes. Result? The use will remain illegal under the initial, total ban.

Johnny Anderson, a successful tattoo artist in Los Angeles, wanted to open a parlor in Hermosa Beach, but the zoning code didn’t permit it, and so he sued. Four years (and many lawyers’ billable hours) later, the Ninth Circuit Court of Appeals has now ruled in Anderson’s favor, ordering the city to include tattoo parlors on its list of permitted uses.

This case is interesting for what it says about property rights in this country. The court did not rule that Anderson’s right to property includes the right to rent or buy a store and offer tattooing services on the premises. Far from it. The court ruled that tattoos are “purely expressive activity” and therefore protected by the First Amendment, just as a speaker on a soapbox is protected from a government ban.

Tattooing as speech? What’s going on here? If property rights were respected in this country, a tattoo parlor would not have to shoehorn itself into the First Amendment “speech” category in order to get the government off its back. It would have an absolute right to offer its services in any building it might own or rent (subject only to objective laws against nuisance, trespass, and the like). It would certainly not need permission from a zoning board.

I am neither criticizing nor endorsing the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach, which may well have applied the Supreme Court’s First Amendment precedents as required. My point is that the First Amendment cannot, and was never meant to, compensate for the collapse of property rights. Something is very wrong with a legal system that requires landowners to beg society’s permission to earn a living on their own property.

Image: Wikimedia Commons

Joseph Tanen operates a violin repair shop in Manhattan. His neighbors have not complained about noise (not surprising, since fixing violins is a delicate, quiet activity). Nobody has identified a fire hazard. Nobody has been bothered by a large amount of customer traffic in and out of his shop. Nobody has alleged that the shop is a nuisance. Nevertheless, zoning officials have shut it down. Why? Because the business is operated out of a residential apartment, and the New York City zoning law forbids that.

Have you ever actually read a zoning law? It’s essentially a long series of finely detailed permissions and prohibitions. Depending upon where your property is located, property owners are granted government permission to operate this type of business, but not that one. New York’s City’s zoning law comes in at 3,056 pages of picayune classifications and distinctions having no relation to whether a person’s use of his property physically interferes with someone else’s use.

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