Category Archives: Zoning and Land-Use

A Victory For Property Rights In Maryland

Last year, a Judge in Montgomery County, Maryland ruled that Marianne and Marc Duffy, who had bought and renovated a home in Chevy Chase, would have to tear the house down because it violated county zoning laws, even though the house as constructed had been approved by the county.

This week, another judge in Maryland overruled that decision and said that the Duffy’s would not be required to tear down their home:

Marc and Marianne Duffy, cited last year for building violations in a high-profile case, will be able to resume work on their Chevy Chase home, a Montgomery County judge has ruled.

The decision by Circuit Court Judge Nelson W. Rupp Jr. overturned two rulings by a county board that said the Duffys improperly rebuilt their Thornapple Street house too close to the street and to neighbors. Those rulings had left the couple with a choice between tearing down the house or finding a way to move it a few feet.

“As far as we’re concerned, this is now over. . . . The Duffys can finish their home without the need for any more permits,” the couple’s attorney, Michele Rosenfeld, said in an e-mail statement.

What was more interesting about the case, though, is the fact that it pitted the Duffy’s against some very high-profile neighbors:

The case attracted attention because it pitted the Duffys, both securities lawyers, against a group of prominent opponents, who raised questions about how well the county was enforcing its building regulations.

The Duffys’ neighbors had watched with alarm as the early-20th-century house began to look drastically different after several months of work. They complained to county officials that the Duffys, who had obtained permission to renovate the house, were rebuilding it instead, which would require that it be sited differently on the lot.

The neighbors include two journalists who live next door — Jane Mayer, a writer for the New Yorker magazine, and her husband, William Hamilton, a Washington Post editor — lawyer Michael Eig and his wife, historic preservationist Emily Hotaling Eig, former ABC News reporter Jackie Judd and real estate agent Kristin Gerlach.

In other words, a few politically connected neighbors were trying to screw over the little guy.

This isn’t eminent domain, but it might as well be. Through zoning laws such as this, the government often restricts the ways in which property owners can use their property in manners which have a significant impact on their value, none of which is compensated. While we’re paying attention to the impact of Kelo, we shouldn’t forget that there are other laws that restrict property rights.

Thankfully, at least one judge in Maryland is on the right side of this.


Florida Repeals The Laws Of Economics

The Florida legislature overwhelmingly passed a bill today that supposedlyaddresses Florida’s insurance crisis. The solutions these Solons came up with are:

The biggest savings are expected to come from expanding insurers’ access to the state’s Hurricane Catastrophe Fund, which pays claims when insurers can’t. Insurance companies pay into the fund, but the coverage is cheaper than the private backup insurance most companies carry.

Why should the state be in the reinsurance business? The reason why insurance companies do not have enough money to pay out claims for hurricane damages along the coast is because too many damn people are living on the coast. Instead, the Florida legislature should pass a law telling insurance companies there are not forced to write homeowners policies in coastal areas. Hopefully, the insurance companies will drastically raise rates along coastal areas to cover the extra risk or mortage companies will stop writing mortgages for homes along the coast since they won’t get insurance.

The bill requires insurers to determine if they could save by purchasing more coverage from the fund – and if they do, to pass the savings on to consumers.

Not content with merely subsidizing the bad decisions of Floridians, the Florida legislature has enough hubris to make the financial decisions of insurance companies. The insurance companies have the right to set whatever rates the public is willing to pay.

The measure also has a mandatory rate rollback for customers of the state-created Citizens Property Insurance, Florida’s largest insurer.

Again, Citizens Property Insurance serves to subsidize the bad decisions of Floridians. When Citizens cannot payout its claims, Floridian and American taxpayers will be on the hook to make up the difference.

It also requires regulators to deny rate increases if they would lead to “excess profits,”

Who’s going to determine the defiinition of “excess profits”, a committee made up of Keith Olbermann, Alcee Hastings, Barney Frank, Ted Kennedy, and John Edwards? Maybe Hugo Chavez, Kim Jong Il, and Fidel Castro are available as advisors. Government has no business determining “excess profits” for any business in a capitalist system.

and allows consumers to choose much higher deductibles, or to go without wind coverage, as a way to reduce their premiums.

Wow, instead of repealing the price controls on deductibles that Florida has apparently imposed, the Florida Politburo is going to graciously allow you to choose to carry higher deductibles. How nice of them. How about making the determination of deductibles the sole concern of the insurance company, the policyholder, and the mortgage company or is that too much to ask?

Another section aims at trying to prevent insurance companies from dropping policies or leaving the state. It requires auto insurers to sell homeowners coverage in Florida if they cover property in any other state.

My guess is, many auto insurance companies are going to say adios.

If the Florida Politburo wanted to really lower homeowners insurance rates, they should have done the following:

1) Make it clear that insurance companies are not required to write homeowners policies along the coast. This, hopefully, will price out from living along the coast.

2) Abolish the Hurricane Catastrophe Fund and the Citizens Property Insurance company. These two entities also seek to subsidize the bad decision of living along the coast in a hurricane prone state.

3) Abolish all rate caps and government approval for rate increases. This will allow insurance companies to price policies according to the risk.

4) Tighten all statewide hurricane building codes to the Miami-Dade county standard. This will actually serve to decrease risk and again, make it more expensive to live along the coast.

Florida’s insurance crisis is the result of government subsidizing living along the coast in hurricane prone areas. Similiar crisises are developing in every East Coast and Gulf Coast state for the same reasons. Maybe we should try something like using the free market to limit coastal development in hurricane prone areas and using science and engineering to reduce the risk of hurricane and flood damage in areas already developed, instead of using the American taxpayer as a never ending ATM card for bailing out the bad decisions of others.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ and Rare. You can also find me over at the R Street Institute.

Who Makes Up “The Government”?

The refrain is common. “The government should provide X!” or “Why won’t the government do Y?”

There is an implicit assumption here, upon which the entire idea is predicated, which is and always has been flat wrong. That assumption is the idea that government is populated with selfless altruists, who happen to be philosopher-kings, able to discern correctly what should be done and execute it flawlessly. As we all know, nothing is further from the truth.

Over my Christmas vacation, I happened to be sitting with my wife and her grandparents. Her grandfather is retired now, but used to be in construction back in the days when the town was growing, and did quite a lot of building throughout the area. He was telling us of the backroom deals going on with the town currently, the graft and corruption, and the way that the rich and well-connected get projects rushed through the planning commission while everyone else languishes. Corporations push friendly politicians into power to ensure they get their projects through. When one politician’s pet projects look to be in jeopardy, they level charges against the politician standing in the way of being “on the take”. In this little local town, politics is driven by money, charges of corruption and shady dealings abound, and very few people have faith that they’re being treated fairly.

It must be a town controlled by heartless bastards, right? Here’s the kicker, though. I know some of these people. Quite a few of them are acquaintances of my wife’s parents. I’ve met them at parties. Several of them were invited to my wedding. I live 2000 miles away, so I don’t exactly interact with them on a “professional” level, but these aren’t monsters. They’re very nice people. They just know that government may give them the ability or keep them from the ability to do what they want, and thus they want to control government to get the benefits of government. And even more importantly, they’re no different from local politicians in any other town.

And as we’ve seen from our elected officials in Washington, they’re no different from most national politicians. They reward their friends (the people who help them get elected) and punish their enemies (the people who support their opposition in an election). It’s not personal, it’s just business. There’s a lot of money to be made controlling the levers of government, and thus it attracts the sort of people who are willing to use government to enrich themselves (or their friends). It’s only rarely that we have stories like that of William “Cold Cash” Jefferson, but none who watch government can realistically claim that slightly less egregious (and often completely legal) affairs don’t go on every day.

So when someone tells you about all that wonderful things they expect “the government” to take care of, ask who will really be the ones behind it? I’m no fan of Social Security, but I see “the government’s” designs of privatization to be a cure with problems worse than the disease itself. Why? Because I know that government’s solution will enrich the friends of the current administration, punish the enemies, and create unintended consequences where the rest of us get screwed. And that’s government in a nutshell. When people ask me why I don’t want the government to do anything for me, it’s not that I don’t think an ideal government could do it. It’s that I know that our government, and all governments, can never be ideal, because they’re led by people who pursue their own interests, not mine.

A Massive Denial Of Property Rights

The Board of Supervisors of Prince William County, Virginia, where I live, is threatening to put a halt to all new home construction in the county unless the State of Virginia gives it more money for transportation:

Prince William County supervisors, angry that the state government is not responding to residents tired of traffic congestion, say they will approve a radical plan Tuesday to halt construction of new homes in Virginia’s second-largest county.

In interviews, the seven board members said they will back a proposal by Supervisor W.S. Covington III (R-Brentsville) to freeze residential development as a way to spur Gov. Timothy M. Kaine (D) and the General Assembly to take action to improve Northern Virginia’s road network.

Whether Covington’s resolution can survive a possible legal challenge is uncertain. County attorneys and other officials have been working all week on the wording of the resolution in anticipation of legal action by the building industry or the legislature. Virginia law generally protects the right of landowners to develop their property.

“I am hearing a lot of support for this on the street,” Covington said. “This is not taking away anyone’s property rights. People are just fed up with not having any action on improving the transportation infrastructure, and they are hoping that the governor and the General Assembly listen to us.”

I’m sorry Supervisor Covington, but what you’re talking about doing is taking away property rights. You would be telling property owners that they couldn’t build on their land. And what you’re proposing would have a real impact not only on developers but on the citizens of Prince William County:

[Jim Williams, executive vice president of the Northern Virginia Building Industry Association] said the freeze would not only hurt builders and developers would also have a profound impact on regional employment and the economy. “I think we are going to see a high rate of impact in secondary markets,” he said, including employees of small businesses who depend on construction to survive, such as plumbers, electricians, carpet installers, dry wallers and painters. “If you clamp down on construction and are not creating that demand out there, everybody is going to be out of work.”

Well, if nothing else, that should clear up the traffic on the roads.

The Far Reach Of Zoning Laws

I’ve written before (here, here, and here) about the impact that zoning and land use laws can have on individual rights. In various parts of the country, they are used to keep undesirable businesses out of certain areas, or to restrict the types of business that can be conducted in a certain areas. And, in one New Jersey town, they are used as a form of criminal punishment:

FRANKLIN TOWNSHIP, N.J., Nov. 21 — The man identified in court documents as A. B. does not talk to his neighbors or tarry at the convenience store. Seventy-seven years old, soft-spoken and sometimes confused, he hardly ever leaves the little ranch house he bought in 1969. “People know what’s what with me,” he said.

What’s what with A. B. is that he moved back here last year after serving seven years in prison for sexually molesting two grandchildren and another youngster. And because his home is in a “child safety zone” drawn by the township, he may be forced to leave it.

Such regulations — more than 100 have been enacted in New Jersey municipalities — are popular around the nation. More than 20 states have broad laws keeping sex offenders from schools, churches, playgrounds and the like. This month 70 percent of California voters approved expanding statewide restrictions to include more sex offenders, and authorized towns to designate even stricter limits.

New Jersey is not the only state where such laws have passed, of course, and some states have already starting imposing limits on the ability of local jurisdictions to restrict where people can live based solely on the type of crime they may have committed in the past:

An Ohio court ruled in October that the state’s buffer-zone law could not be enforced against offenders who lived in such zones before it took effect. Citing several constitutional concerns, a federal judge in California issued a temporary restraining order barring enforcement of the residency restrictions set forth in the state’s recent ballot proposition.

In Georgia, plaintiffs in a class-action suit include several offenders who would seem to pose little further threat: an elderly man with Alzheimer’s disease and another living in a hospice, along with a woman whose long-ago conviction was for having consensual oral sex with a 15-year-old boy when she was 17.

“We’ve represented people on death row, we’ve represented what I thought were some pretty unpopular people,” said Stephen B. Bright, president of the Southern Center for Human Rights, which is handling the Georgia case. “I didn’t know what unpopular was until we started representing sex offenders.”

What’s even more troubling is the fact that these laws don’t really address the real source of most crimes against children, which exist right inside the home:

Experts say at least 90 percent of child molesters, like A. B., abuse relatives or family friends. Yet Charles Onley, a researcher at the Center for Sex Offender Management, a project of the federal Justice Department, said that “most of the laws are passed on the basis of the repulsive-stranger image, when in most cases the offender knows the victim.”

Still, parents’ demands for reassurance are hard to dismiss, especially as sex offenders are forced out of neighboring towns.

And given the new laws that are coming on the books, it’s hard to see where they are going to go:

On Tuesday the City Council in Jersey City enacted an ordinance that prohibits sex offenders from living within 2,500 feet of a school, park, sports facility, theater or convenience store, among other places. The measure exempts offenders who already have established residence in such zones, but bars newly released convicts who want to return home or move in with relatives. Taken together, the zones block out virtually the whole city.

Of course, once that happens, there won’t be any more abused children in Jersey City, right ? Yea, sure.

Zoning Laws And Religious Freedom

Last week, I wrote about a Fairfax County, Virginia zoning ordinance that was forcing a family to accept trees that they didn’t want on their property, today’s Washington Post, though, has an article showing how zoning and land use laws can interfere with more than just property rights.

McLean Bible Church, a Tysons Corner megachurch, has sued Fairfax County so it can continue to offer religion classes that officials say violate zoning rules.

In a 14-page suit filed July 3 in U.S. District Court in Alexandria, the 10,000-member church says the classes are a regular part of church life, which is protected under the freedom of religion.

Fairfax officials say the church can’t host the classes — which can help students get a master’s degree in theology or divinity at Lanham-based Capital Bible Seminary — without county permission to operate as a college.


The dispute over the classes began in 2004, when Fairfax officials found that the church violated zoning rules by holding the classes. The church says the classes fall under a provision that allows use of the campus for “groups or activities which are sponsored by the church and consistent with its ministry objectives.”

But county officials said the church needs permission to run a college. According to a March 2005 county report, zoning staff noted that Capital Bible Seminary had set up an office and library at the church and that the classes were “designed as part of a degree program which may lead to a graduate theological degree.”

At that point, the county report said, 40 of 130 students attending the classes were “associated with the church.”

McLean Bible appealed the ruling after limiting Capital Bible Seminary’s presence by doing away with the seminary’s office and library. According to the lawsuit, the church also offered to ensure that students would not be able to complete a degree solely by taking classes at the church. Fairfax denied the appeals.

Once again, though, the question is this: what right does the County of Fairfax have to tell McLean Bible Church what it can do on its property ? The question is even more important here, because we aren’t just talking about property right; for many religious denominations, education and evangelism are a part of their religious mission. McLean Bible Church appears to be one of those denominations.

Effectively, by saying that the Church cannot operate these classes on its property, Fairfax County is restricting the Church’s ability to practice its religious beliefs.

There is a reason, of course, that the County is doing this:

McLean Bible Church, which sits on a 43-acre campus on Route 7, has long had a tense relationship with some nearby residents, who have complained that the complex — which includes a bookstore, a 2,400-seat auditorium and a cafeteria — is too large for the suburban neighborhood. Neighbors have said the church brings too much traffic to the area’s clogged roads.

Last year, the McLean Citizens Association approved a resolution urging the county to uphold its decision to bar the classes.

“We’re concerned about the potential for unlimited and uncontrolled growth of the school project,” said Jim Robertson, an association member. “We don’t object to a school. All we asked is that they limit the number of students and the times of the classes. The bottom line is traffic.”

In the lawsuit, the church notes the “presence of vocal opposition to the church” and alleges that the zoning decision “appears to be based more upon political pressure than legal principal.”

Given the circumstances, and the degree to which the County appears to be micro-managing Church affairs in this decision, I think there’s good reason to believe that this is true.

Related Post:

Government Regulation And The Housing Market
Zoning Laws And Property Rights

Zoning Laws And Property Rights

This morning’s Washington Post carries a story that stands as yet another example of the ways that zoning laws and other land-use regulations interfere with our property rights.

Their seven-bedroom, $2.2 million dream home is in spotless, move-in condition. It’s an elegant hideaway on 1.6 acres in Oakton, set back from a winding, tree-lined road — a perfect place for their four youngest children to grow up.

But for 36 days, Karen and Joe Bartling and their children have been homeless. Along with their college-age son and the family’s Labrador retriever, they have been holed up in a tiny efficiency apartment in Chantilly with a pullout couch, all of their belongings in a storage locker.

The Bartlings can’t move in until their builder plants 20 to 80 trees on their property that Fairfax County says are required in part because the builder cut down too many mature trees during construction.

The thing of it is, the Bartlings don’t even want the trees:

[T]o the Bartlings, the trees are nothing but booby traps wrapped in wire and wooden stakes: Four of their five children — who were adopted from Korea, China and India — are blind. For them, trees are bumps and scrapes waiting to happen.

“I don’t want my kids having black eyes running into trees all day,” said Karen Bartling, 48. “These kids have enough obstacles in their lives. The last thing we want is trees in our yard.”

Unfortunately, they have little choice in the matter. Fairfax County is requiring the Bartlett’s builder, NV Homes to plant the trees after another neighbor complained when they removed trees during site clearing and construction.

Fairfax requires builders in residential developments like the Bartlings’ — four homes on 10 acres called the Estates at Oakton Hollow — to preserve trees on 20 percent of the property. The trees can be old or new, to replace those that were knocked down for construction. NV Homes planned to put a “significant portion” of the trees on the Bartlings’ lot, county spokeswoman Merni Fitzgerald said. This was partly because some of the other lots lie in a septic drain field that needs to be cleared, said Hugh Whitehead, a county urban forester.

The builder also recently cleared some trees on another lot it may develop in the subdivision, county officials said, prompting a new round of planning to replace them. In both cases, dozens of new trees are needed to make up for the old ones, Whitehead sai

When the builder told them the trees were going to be planted, and the Bartling’s objected, they were told that they didn’t have a choice in the matter. As a result, settlement has been delayed, they are living in a hotel, and the interest-rate lock on their mortgage is about to expire.

Now certainly some of the blame here lies with the builder. They cut down more trees than they should have under County laws. But, what about the Bartling’s right to have the house and the property they contracted for? Not only must they accept the trees if they go to settlement, but they are prevented by County law from cutting down any of the trees, even though they already had plans for the space:

The Bartlings said they planned to build a swimming pool and put a swing set, trampoline and barbecue in the back yard, leaving precious little room for a forest. The trees would be scattered around the property, making it impossible to fence them off.

Unfortunately, because Fairfax County now presumes to tell them they cant do with their property what they planned to do, they seem to have no choice in the matter.

Related Post:

Government Regulation And The Housing Market

Government Regulation And The Housing Market

The Washington Post has interesting article today about the almost complete lack of smaller-sized homes being bult for the Washington DC/Maryland/Virginia market.

There are several reasons that this is probably occurring. Land values are so high that it makes more sense for developers to build one large homes rather than two or three smaller homes. The result is a market where it is virtually impossible to find a single-family home for less than $ 500,000, and even townhomes are selling in the $ 400,000 price range. Consumer demand is also cited as a reason only larger homes are being built; homebuyers, so this argument goes, don’t want smaller homes, they want the 3,000, 4,000, and even 5,000 and more square foot homes being built all over the DC area today. There is one factor, though, that seems to me to have the biggest, and most distorting impact of all. Government regulation of land use.

Consider this quote from the article:

Architect Christian Lessard said he and the other developers of MetroWest, the 2,250-home project underway near the Vienna Metro station, would happily build a larger number of smaller homes, but community opposition limited the number of units they could build. To make back the cost of the land, he said, the builders designed the townhouses they were allowed to build to be as large and expensive as possible — about 2,500 square feet, a size that in similar developments sells for about $500,000.

Lessard acknowledged that the outcome was not ideal.

“We’re only designing for 20 percent of the population right now. That can’t last forever,” he said. “As a society, we’ll have a problem because eventually no one’s going to be able to afford this other stuff.”

Well, the problem is that government regulation of land use and house size is distorting the market place. If all the developers can build are larger homes, then thats all that people will be able to buy. And some people will be priced out of the market completely.

Even when people recognize the problem that the regulations are causing, though, the only solution they can seem to come up with is more regulation:

Local government planners say there is little they can do beyond measures in place, such as requiring builders to set aside some units as moderately priced. These policies produce only so many affordable units, and builders generally charge more for the market-rate units to make up the cost of building the set-asides


Fairfax planning director Fred Selden said the county is considering using incentives to ensure a mix of unit sizes in new condominium and apartment projects, but there are no plans to use cottage zoning or any other means to influence the size of townhouses or single-family homes. There’s no doubt, he said, that developers have an easier time getting approval for projects with fewer, larger townhouses because they produce less traffic and less competition for on-street parking, since bigger units come with more garage space

Here’s a radical idea. Stop telling developers what they can do with their property and let them build housing based on market demand rather than economic necessities created by your regulations. Maybe it just might work.

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