This old post on "Law and Architecture Revisited" at God of the Machine made me wonder. Aaron Haspel wrote:
What happens if the guy next door decides to sell out to hog-processing plant? The short answer is, too bad. You've chosen to live somewhere he's allowed to do that, and it's his decision, not yours. The slightly longer answer is, if the hog-processing plant is damaging your property, by, say, belching toxic smoke into it, you do the American thing and sue. To the extent that the plant owner damages you — by tortiously interfering with your property, not by lowering the tone of the neighborhood — he pays. For this to work properly would require a major revision of liability law, which is a post for another day.
Perhaps one way to look at is to consider that indeed we followed that path:
"The slightly longer answer is, if the hog-processing plant is damaging your property, by, say, belching toxic smoke into it, you do the American thing and sue."
And we decided as a society that it was economically inefficient to insist that every land use gripe become a court case, and that in fact there are some generalized rules which would be fair to apply to all properties in a given locale. That is the historical origin of zoning and Professor Grant Gilmore wrote about it in a more general sense (i.e. about the birth of the regulatory society) in "The Death of Contract." (Great book, btw.)
In a complex urbanizing society, we decided that it made no sense to insist on making every land use conflict a lawsuit i.e. that we could forestall lawsuits and the economic ineffeciency they bring if we could create general principles in the form of 'zones.'
Plus, throw in the fact that access to the courts is evn more uneven and "unfair" in some respects than the current ability to manipulate zoning regs. I'm amused that the same "conservatives" that want to limit the regulatory state iun exchange for tort-baed property rights are often supportive or silent towards "tort reform" that, among other things, limits access to the courts. (A whole 'nother topic, of course.)
Posted by: Brian Miller | Jan 07, 2005 at 05:26 PM
Whether or not you call it zoning, the U.S. has had geographic restrictions on polluters since colonial times. The article 'Knowing' Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840–1864 by Christine Meisner Rosen provides a fascinating history.
That was the regulatory response to "traditional" pollution. But when industrial pollution began impacting the quality of urban life, the law could not adapt to rapid change. Judges and juries were blind to the harms caused by new technologies, a blindness that seems to be rooted in cognitive psychology.
A hypothesis that may be worth exploring is that zoning as we know it is in part a response to the extreme complexity of contemporary pollution sources. It could be that trying to sort out the specific harms of each pollutant or activity became overwhelmingly burdensome to the court system. It was much easier to segregate all production activities from residential areas than to identify which ones were compatible.
Posted by: Laurence Aurbach | Jan 08, 2005 at 08:05 AM
My land use law prof. noted that a large part of the reason for nuisance regulation is that people objected to the court discretion involved in traditional nuisance law. Nuisance is a common law doctrine that involved a court examining the facts of a case and making a decision as to whether or not it comprised a nuisance. If so, the remedy was an injunction--the nuisance was shut down. People decided that they'd rather have a pre-defined, statutory way of dealing with this than an ad hoc court decision.
This has led not only to zoning--to avoid nuisances from arising (or to cut short nuisance claims, "You built a home in a heavy industry zone--what did you expect?"), but also to definitions, legislatively, of what does and what does not constitute a nuisance (e.g. "right to farm" laws that prevent transplants from the city from bringing nuisance suits over farmers' use of manure).
Posted by: Murph | Jan 08, 2005 at 10:11 AM
I wish that I could find it but I recall a land dispute where a developer bought up land that was still zoned rural/agricultural but was surrounded by development and tried to get it rezoned. The local green set wanted to keep the pretty and fairly wild space around them and didn't want extra traffic so they fought to prevent the rezoning and succeeded.
The developer's solution was to put in a traditional hog farm. The last I recall about the story, he was getting his zoning change to put up his development.
Posted by: TM Lutas | Jan 09, 2005 at 06:32 AM