The case against zoning San Juan County

A few years ago, San Juan County adopted a junk ordinance designed to get old cars and other eyesores out of the front yards of homeowners in unincorporated areas of the County. The Rio Grande Foundation weighed in and supported the ordinance in part because of the safety concerns associated with having junk strew about with nothing to stop small children or others from wandering into danger. The unsightly nature of junk strewn about in plainly visible areas further bolstered the case for such reasonable rules.

Now, we see that San Juan’s County Commission is considering taking land use regulations a great deal further by zoning a large portion of the County. We believe that zoning is fraught with problems and that the introduction of zoning has inherent, negative impacts on both private property rights and freedom. Rather than zoning, we believe that the traditional standard of “measurable and tangible harm” is the best way to mitigate disputes among neighbors.

For starters, a brief history of zoning is in order. Like so many policies that infringe upon our freedom today (the income tax, for example), widespread use of zoning arose out the “progressive” era of the early 1900s. As land-use expert Samuel Staley notes, “the political climate of the era provided the context for zoning and helps explain the rapid increase of zoning and urban planning more generally throughout the United States…Rather than letting private markets decide what housing should be built, at what heights, at what densities, and where, the ‘community’ would decide.”

Philosophically-speaking, zoning collectivizes property rights. It establishes what kinds of homes can be built, their size, sometimes even their outward appearance, and the density of neighborhoods. Similarly, zones determine where businesses can locate. Proposals to develop property for uses not designated by the zoning code required an amendment to the zoning map or plan.

Zoning implicitly politicizes all land use by involving the “community” in a decision that should be made privately or with the involvement of neighbors. The decision to “grandfather” a use (such as your home) is a political decision, not one based on private property rights. In fact there is no enforceable individual property or civil right to land use under zoning; courts have routinely upheld the legal right of cities to rezone properties regardless of the wishes of individual property owners. Citizens can object as a matter of due process but cannot challenge the substance of the regulation itself, which is presumed to serve the general welfare of the community. Zoning establishes a legal entitlement granted by government to use property in designated ways.

In other words, the adoption of zoning inherently shifts property rights from the individual to the collective. And, while all major New Mexico cities and many unincorporated areas of New Mexico have zoning laws, this does not mean that zoning is good policy either from the perspective of property rights or economic growth. In fact, Houston, America’s fourth most populous city, not only lacks zoning, but provides a useful example of how lacking bureaucratic control over land-use policies can be a competitive advantage. By avoiding zoning Houston is able to dramatically speed up the approval process while ensuring the land market responds effectively to economic trends.

Under conventional zoning securing a rezoning for a major project can take years. In Houston substantial developments such as multifamily housing can be approved through the performance-approval system and be fully constructed within a year. This flexibility has allowed Houston to be the leading job-producing city in America and the lowest living costs of any major metro (according to Business Insider).

With only six percent of San Juan County privately-owned, having maximum flexibility in land-use policies is especially important for the County’s future if it is to grow and generate jobs and economic growth for the Four Corners area. After all, if Houston can survive and thrive without zoning, clearly San Juan County can do the same.

Paul Gessing is the President of New Mexico’s Rio Grande Foundation

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3 Replies to “The case against zoning San Juan County”

  1. I agree altogether with the observations in the article. Once an area is zoned, its future use is largely determined, so that zoning has to be done with the greatest of care.

    The basis for zoning, to be done first, is a very good plan for how the area will develop, what and where different types of activities will be built, and only once the plans are developed, and agreed to by the property owners and residents of the area, should zoning be applied.

    The best example of zoning in Dona Ana County is the ETZ around Cruces, and it has held up well. But to just go into rural parts of the County and start zoning would be worse than folly. Actually, I’m not sure the law would even allow it to be done, but that’s a risk.

    I like zoning in principle, and have been in favor or zoning certain areas of the County, but only where things are well enough established to make sense of it. To start into open areas and do zoning without very good planning is to get the cart miles ahead of the horse.

    On the other hand, just having large areas of the County in Performance District zoning, which allows almost anything, causes the same sort of problem and by allowing subdivisions and businesses to be located in open areas, it jumps right over the planning process with stuff on the ground. This is all over the East Mesa of Las Cruces.

    There is a careful process that is complicated and hard to do to bring all of this together, seems to me, with very good planning of details, followed at some time with zoning. The primary challenge is to stop building in open areas, without good development plans, which can mess things up permanently and without thought about the larger picture.

    And the planning needed is not Vision 2040 type “Big Picture” stuff – to support zoning it has to be like a Master Plan like the City or the ETZ.

    It’s a challenge.

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