My town’s zoning board, the East Hampton Village Zoning Board of Appeals, met last week and heard several appeals. Two of them made headlines in the East Hampton Star—one involving Steven Spielberg of movie fame, the other Dylan’s Candy Bar. No doubt, ‘Steven Spielberg’ catches your eye, and I will get to that, but, for my purposes, the Dylan’s Candy Bar decision is more illuminating.
Dylan’s Candy Bar, on Main Street, would like to serve hand-scooped ice cream—ice cream in cones—but this required a variance in the zoning law. It was considered a ‘nonconforming use’ and there were concerns about litter outside on the sidewalk. Sticky ice cream spatters.
Dylan’s resorted to a time-honored tactic in politics. It hired an attorney with clout and connections. Handling the appeal was Andrew Goldstein, former chairman of…the Zoning Board. He argued that a prior tenant of the same store, Nuts about Chocolate, represented a ‘legal, pre-existing nonconforming use’ and operated till 2006.
The Town of East Hampton Zoning Law (or ‘Code’) has a section on ‘nonconforming’ use, mostly addressing ‘grandfathering’ certain uses that predated the latest version of the code. More relevant, here, are the overall purposes of the Code and the mission of the Board of Appeals. One such purpose is “orderly growth…beneficial to the interests of the people,” another is “protection of…the value of private and public property,” another is “proper use of land: to promote, in the public interest, the utilization of land for the purposes for which it is the most appropriate...” and so on. The final item on this list is worth quoting in full; it captures the spirit of the Code as a whole:
Aesthetic attributes: to perpetuate and enhance areas of natural beauty, to retain outstanding water views and other open vistas available to residents and visitors and to perpetuate generally those aesthetic attributes and amenities which not only please the eye, but which together are the essence of the nationally recognized character of the Town.
You can see that the five good burghers sitting in judgment of the appeal of Dylan’s Candy Bar had some leeway. In fact, based on the wording the Code, with criteria such as “the public interest,” purposes…most appropriate,” “please the eye,” and “the essence of the nationally recognized character of the Town” they could rule ANYTHING.
But, of course, they couldn’t. Because it is ‘understood’ by all that the point of zoning is to do the correct thing, the aesthetic thing, the thing consonant with our town’s “recognized character.” And these, at any given time, are expressions of the preferences, tastes, sense of style, and vision of the good of the Ladies Village Improvement Society, influential businessmen, real estate brokers, environmental and conservation groups, civic beautification organizations, editorialists of the East Hampton Star and Dan’s Papers, and the collective exertions of lawyers retained to work the system for clients who can afford it.
It may surprise some that the practice of zoning didn’t begin at all until New York City initiated it around 1920. Until then, our great cities and thousands of towns and villages survived essentially without ‘land planning’ for private property. People endured neighborhoods with houses of different sizes, buildings of different heights, stores beside homes, big lots next to small lots, and no one to safeguard the “character” of the town or views “pleasing to the eye.” How could so many millions fall in love with the vitality, excitement, and charm of their cities and write with such poetic passion about their towns and villages?
Zoning and related practices are called ‘law.’ There are fines and prison sentences to enforce the decisions of the Appeals board. But it is not law as most of us think of the law: a statement of what is permitted and what is not permitted in a way that can be known in advance, be the basis for objective rulings, and be understandable without legal counsel.
No, it is subjective and arbitrary: subject to interpretation by those with finer tastes and perceptions, those who can speak for “the public interest,” those who have understood and can be guardians of our town’s “character.” It is more like Islamic Sharia law: the codification of the moral sensibilities, perceptions of propriety, and vision of the good of the “community,” or “public,” as represented by the taste makers. How women should dress, how much of the body it is appropriate to reveal, what social relations are permitted, what language is permitted, what entertainment and information permitted—all subject to interpretation from village to village, time to time, enforcer to enforcer.
Except that ours is Sharia law directed at private property, which, I guess, we view as a matter for collective, if ever-changing, standards. But what about property rights—the right to use and disposal of what we own? How does zoning square with that?
In a word: it doesn’t. It does not have to. The law of the land is set forth in the U.S. Constitution and the Bill of Rights does not include one to protect property. But the Constitution does include the Tenth Amendment, which reserves to the states, and to the people, all powers not granted to the federal government in the Constitution.
We are talking here about who wields the ‘police power.’ The powers not granted the federal government in the Constitution are reserved to the states. In most case, the states have chosen to leave matters of zoning to the police power of local governments. At the local level, there is essentially only one firm protection of property rights guaranteed by the Constitution.
The Fifth Amendment to the Constitution states that we cannot be deprived of our property without due process. When government takes our property (a ‘taking”) by eminent domain, we must receive ‘just compensation.’ That, in effect, is the other face of zoning—‘real law,’ as it were.
Return now to Dylan’s Candy Bar, standing before the Zoning Appeals Board, seeking a ruling that it may serve scooped ice cream. The board ruled, ‘yes,’ go ahead and scoop, because, although it is a “nonconforming use,” there is a precedent.
That’s all? We can leave? Go back to our store and start scooping?
Not quite. There is still the “public interest,” “aesthetic,” and “recognized character.” You have your permit, but 1) you must power wash the sidewalk outside your shop at least once a day, 2) you must install and regularly empty outdoor garbage receptacles, 3) your ice cream sales are restricted to a specific area of the store, and 4) you cannot construe this permit to allow any other type of over-the-counter sales.
Other than the need to obtain the permission of the Suffolk County Department of Health Services to serve ice cream, that seemed to represent the considered voice of the East Hampton collectivity, at least that evening.
I promised to reveal the fate of Mr. Spielberg’s appeal. The board ruled that his 5.5-acre property was sufficiently large, and shielded by a fence, tall hedges, and mature trees, so that a garage and storage facility, horse-washing facility, and tree house—all within the required 80-foot front yard setback from the road—did not affect his neighbors or “the character of the neighborhood.”
You might wonder about that horse-washing facility as it relates to the “character of the neighborhood,” but it seems that all facilities were there when Mr. Spielberg bought the place, so perhaps the neighborhood had adjusted to them. I’m sure the members of the Zoning Board could explain it to you.
What other threats to the public interest, aesthetic, and character of our town were addressed in the same week? Just to stick with those reported in the Star:
Sag Harbor village officials hit page one by “mulling” a 180-day moratorium on approval of “wetlands variances” for builders. It seems that homeowners are building too fast and too big, so that Mayor Brian Gilbride felt: “We have to put the brakes on and catch our breath.” And so builders, contractors, and property owners may have to sit out the summer and early fall building season. And anyway, the mayor thought he might change the members of the committee that considers the variances. So if you are selling, buying, or making plans for property anywhere near wetlands…well, cool it and catch your breath, too.
The East Hampton Town Code Enforcement Department went into action in the village of Montauk where a homeowner was charged with six counts of “excessive turnover” for renting his home to different groups on different weekends. Another homeowner was charged with one count of “excessive turnover” and one count of “electronic medium advertising” of his rentals on internet sites. Later, he was hit with other counts that carry $500 to $1000 fines per count and a possible six months in prison.
Both homeowners were renting out their own property, but renting it too often, to too many people—and even advertising this—is a matter for town “Code,” which divines “the public interest” (but not the interests of the two homeowners or the renters) in matters of frequency of rental and all related matters. The decision to rent more or less frequently might be considered private in some towns; but they do not have the nationally recognized character of our town.
Relegated to page A11 was a story on the looming threat to our town of ‘thin-ply plastic bags’—not a zoning matter, but an example of the same law-by-right-thinking. East Hampton is considering a ban on them, but the public interest, aesthetic, and character of thin-ply plastic bags apparently are not yet readily discernible. The town is seeking input from the ‘business sector’ (not ‘businessmen,’ we deal in collectives, here), and the town’s litter and energy sustainability committees.
There already is a ban on thin-ply plastic bags in East Hampton Village, where the requirements of character are clearer; under consideration now is extending it to the town as a whole. Town Supervisor Larry Cantwell seemed to reach a bit beyond town limits to put the bags threat in context: “When you look what’s happening globally with plastic products in the environment…it’s having a devastating impact.”
Of course, there are literally millions of plastic products and just as many relevant ‘environments’ ‘globally,’ and no assessment of the benefits of ‘plastic products’ versus the alleged devastation they cause. And how it all relates to single-ply plastic bags in our town is a matter of judgment, to put it nicely. But if the East Hampton upholders of the town’s public interest, taste, and global responsibility should decree it, any business using thin-ply plastic bags will be fined and its owners threatened with prison.
Did I mention that this year East Hampton spent millions to purchase 19 acres of farmland to prevent its development as housing for older residents? Again, not strictly zoning, but related. The town is now entertaining proposals for uses more in the public interest, taste, and character of our town? The latest hot proposal made page 1 of the Star. Henry C. ‘Chip’ Blazer proposes to grow aronia berries, which he and his partner describe as a new ‘super food.’
No decision has been made on how an aronia berry farm would complement our town’s character; other proposals are being considered.
That is just one week (actually just the highlights of one week, as reported by the Star) in one town’sstruggle to assert and enforce correct thinking about the use of private property. If the same efforts were made to enforce correct thinking about speech, the press, or religious matters, within a year there would be no real right to freedom of speech, press, or worship.
Just as there is no real right to property; there is just an endless series of permissions.
What can we do about this virtual Sharia law for property—a local tyranny of taste, moral sensibility, aesthetic preferences, and merely fashionable opinion over the individual’s property?
An amendment to the U.S. Constitution would give us one law, one standard, for all citizens in every state. It could be worded as are our other Constitutional guarantees: “Congress shall make no law abridging the right to the use and disposal of private property.” Well, someday, perhaps--when we have overcome our religious-based dichotomy that holds that the individual’s judgment when it comes to speech, press, and religion is sacred (because “spiritual”?) and cannot be subject to collective veto, but the individual’s judgment when it comes to using his property is secondary (because “material”?). Secondary to the “public interest” (or “aesthetic” or “recognized character”) as perceived and enforced by the collective.
But there is another way, also related to the Constitution, but not requiring a national consensus and still leaving localities room for maneuver. It is the Constitutional guarantee of ‘due process,’ especially as related to ‘takings.’
At this time, government commits a ‘taking’ only when it seizes private property by eminent domain, takes it from the owner to be put to supposedly essential public uses. The crucial question, here, is what constitutes a ‘taking.’ If East Hampton enacts a zoning or other law that prohibits me from developing my property because there are Piping Plovers nesting on it, it has not seized my property. But is has seized, in effect, much or most of its economic value. Is that not, in effect, a taking?’
The issue is not entirely theoretical. The Institute of Justice, a nonprofit, public-interest law firm in Washington, D.C., has supported cases where a local zoning decree reduces the value of private property, arguing that it is, in effect, a ‘taking’ of the property. This suffered a setback in 2002, when the Supreme Court avoided the ‘takings” question by means of a very narrow ruling. But the approach could be a remarkably fruitful and powerful direction for future litigation. Imagine if the East Hampton Town Zoning Board of Appeals, when it required Dylan’s Candy Bar to power wash the sidewalk daily, install trash containers, and limit its sales to a specific area of the store had to assess the total economic costs—and pay them from the public treasury. Or if a developer prevented from building because of proximity to wetlands had to be compensated for economic loss?
After all, every such decree to regulate and limit the use of private property is handed down in “the public interest.” The ‘public’ wants wetlands? Let the public pay. The ‘public’ want views that “please the eye”? Let them pay. I submit to you that if every zoning and other local limitation on property required the town to compensate owners for economic loss, the scope of the genuine ‘public’ interest would shrink drastically. There would be room to maneuver, but that room would be subsidized not by depriving the individual of the value of his property, but by the ‘public’ in whose interest the government supposedly acts.
This would be a giant stride in increasing the liberty of the individual, his right to act on his own judgment within his own domain. It would return to the marketplace—to contracts, covenants, rental agreements, consumer support or avoidance, boycotts, and all the other complex means of voluntary cooperation for mutual benefit—the decision about what uses of private property produce the greatest value as reckoned by the plebiscite of consumer choice. There are whole books about how this works.
In truth, there is no ‘public interest,’ only the interests of some individuals trumping the interests of others. As surely as Sharia law, much of zoning (perhaps not all) is the enforcement of one set of preferences. And that is incompatible with a nation founded upon the rule of law, not the rule of men.
