The Tragedy is “the Commons”


Since Roman times, it has been held that certain resources, such as air and water, could not and should not be privately owned, but instead held “in common.” Today, “the commons” movement seeks to destroy private property rights by equating air and water with such man-made values as the Internet and the electrical grid. This booklet examines the ideas behind “the commons” and demonstrates how property rights can be applied to air and water.

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Zoning versus the Internet


The stated purpose of zoning is to control land use within a community to prevent “incompatible” land uses and to promote planning. Most Americans accept zoning as a “necessary evil” that prevents pawn shops and factories from operating in residential neighborhoods. Most Americans are, to paraphrase Benjamin Franklin, willing to cede their liberty for a little security, and in the end, have neither.

Under zoning, you can use your property only as dictated by zoning officials. Zoning officials can determine virtually any aspect of land use, from the type of building to its height, from the type of architecture to the type of people who may inhabit a home. Zoning officials can prohibit the construction of a residence in an area zoned for commercial; they can mandate lot sizes and housing density; they can prohibit “undesirables,” such as Hispanics (as they did in Manassas, Virginia) or students (as they are trying to do in Rochester, New York), from living in certain communities.

Zoning officials can change their mind about what is acceptable and what is not whenever it is politically expedient or the mood strikes them. As an example, in 1994 zoning officials in Fairfax County, Virginia required John Thoburn to plant seven hundred trees at a cost of $125,000 in order to receive permission to open a driving range. Seven years later, zoning officials decided that they didn’t like the location of the trees on Thoburn’s property and demanded that he move some of them. When Thoburn refused to abide by their unreasonable dictates, they had him jailed. He was ultimately held for ninety-eight days and fined nearly $100,000.

Under zoning, property ownership is nominal—in name only. You cannot use your property as you choose, but only with the permission of zoning officials.

Despite these horror stories, most Americans cannot imagine land use without zoning. They believe that a laissez faire approach to land use (or any other value or industry) would lead to chaos.

Yet, everyday millions of Americans prove this to be false. Each day millions of Americans use a value that has virtually no government restrictions, controls, or regulations. The result is not chaos, but organized, voluntary interactions between individuals. That value is the Internet.

Consider what the Internet would be like if the same principles that underlie zoning were applied to the Internet. What if the content, appearance, navigation, and other details of a website had to first be approved by government officials? What if, before constructing a website, you had to first submit your plans to government officials, who would then determine its “compatibility” and ensure that it fits their plans? Do you think that the Internet would be better or worse?

For example, let us say that you want to have a website that will be critical of some government policy or program. But before you can build your site, you have to submit your plans and content to government officials. Their goal, they say, is to ensure that your content is “compatible,” that you won’t misrepresent their proposal. They simply want to be certain that your site fits with the master plan, they claim.

It doesn’t require much imagination to realize that virtually all dissent and disagreement with the government’s plan would come to a screeching halt. The use of your website would be determined, not by your judgment and choices, but by government officials. They would determine how you can use your property.

Certainly, there are those who would argue that the Internet is chaotic. Virtually anything goes, with no central oversight or control. There is an abundance of misinformation and outright lies. There is pornography, racism, and scams. Yet, despite its “wild west” nature, the Internet has become a vibrant, dynamic resource that makes our lives immensely better. With only a modicum of due diligence and common sense, it is quite easy to avoid that which one finds offensive. With a little effort and rational integration, one can separate fact from fiction.

Whatever problems the Internet has, they pale in comparison to what it would be like if government applied the principles of zoning to the Internet. So, what if land use was more like the Internet? Would we have chaos and unlivable cities?

Only two American cities with a population greater than 100,000 do not have zoning: Houston, Texas and a suburb of Houston—Pasadena. Though Houston does not have comprehensive zoning, the city does have a growing number of land-use regulations. But compared to other American cities, land use in Houston is relatively free of government intervention. Arguably, of all American cities, Houston’s land-use policies are the closest to the Internet.

In Houston, developers can respond quickly to changing market conditions. For example, when demand for housing close to downtown increased, developers responded in a myriad of ways. Old, abandoned buildings were converted to lofts and apartments. Lots that once held small, single family homes sprouted three-story town homes. Housing in and around downtown soon became abundant. The result is a wide variety of housing choices.

Further, many of these development projects include mixed-use, that is, retail shops, restaurants, and other businesses were built in close proximity to housing. In many cities, these mixed-use developments are regarded as “incompatible” and prohibited by the zoning code. Yet, in Houston the market responded to the needs and desires of renters and home owners who want to live close to shopping, dining, or work.

The absence of zoning does not mean that property owners can do anything they wish with their land. Many neighborhoods in Houston have deed restrictions (or covenants) that place voluntary limits on the use of property. For example, deed restrictions may prohibit commercial activities and govern the size of house that may be built. But unlike zoning, deed restrictions are contractual and voluntary. Those who do not like the deed restrictions in one neighborhood can move to another neighborhood. And many Houstonians choose to live in neighborhoods with no deed restrictions.

In many such areas, homes are located near muffler shops, small manufacturing companies, and assorted other commercial enterprises. While many might find such land uses “incompatible,” the result is lower home prices, which makes home ownership affordable for a greater number of Houstonians. Indeed, Houston regularly ranks among the nation’s cities with the most affordable housing. Houston’s relative freedom in land use has resulted in a myriad of housing options, which allows each individual to find housing that meets his needs and budget.

Over the past one-hundred years, Houstonians have rejected zoning on three separate occasions. Each time, zoning advocates claimed that without zoning, Houston would become unlivable. Considering the fact that Houston has grown from a population of less than 80,000 in 1910 to 2.1 million today, apparently a lot of people disagree with zoning advocates. While other cities are losing jobs and citizens, Houston continues to add both.

The Internet has become wildly successful because individuals are free to act on their own judgment, to offer the products and services of their choosing, to experiment and innovate. Similarly, Houston, which has much greater freedom in land use than other cities, has been an economic powerhouse. There is a lesson to be learned: freedom works. It works on the Internet, and it works in land use. It works everywhere that it exists.

Preserving our Heritage


In Washington, D.C., the home of Laura Elkins and John Robbins was raided, and government officials snooped through their drawers looking for receipts and notebooks. In Frederick, Maryland, shop keeper Eric Kasner was threatened with a fine of $500 per day because he covered up a sign from a previous tenant of the store he was renting. In San Francisco, Richard and Cher Zellman spent more than $200,000 on architects and lawyers—not contractors and construction materials—trying to convert a dilapidated barn into a rental unit.

In each instance, these Americans were doing what millions of individuals do each year. They were simply trying to renovate their property according to their goals and desires. In the process, they ran afoul of their local preservation police.

In cities across America, property owners are forced to comply with historic preservation laws. These laws can dictate virtually every aspect of a property deemed historic, from the type of siding to the style of windows, from the roof design to the color of paint. These draconian measures, according to the website for the National Trust for Historic Preservation, are intended to protect “America’s heritage for future generations.” But what is America’s heritage?

The National Trust for Historic Preservation claims that preservation is about more than “saving old buildings,” and this is true. However, preservationists have sought to “protect” properties that include “a unique location, singular physical characteristic(s) or is a landscape, view or vista representing an established and familiar visual feature of a neighborhood, community or the city.” So, while preservation is about more than saving old buildings, the focus of preservation is on the physical aspects of America’s past—land and buildings—not its true heritage.

There is nothing wrong with preserving old buildings or locations of historical importance. Much can be learned about architecture, culture, history, and those who inhabited such structures. We can learn about the heroic achievements of men like Thomas Jefferson when we visit Monticello. We can be inspired by the achievements of Cornelius Vanderbilt when we visit his mansion in Hyde Park, New York. We can be awestruck at the genius of Frank Lloyd Wright when we tour a building that he designed. But the most important lesson to be learned from these great men, and others like them, does not lie in the physical remnants of their accomplishments. The great lesson is intellectual—the ideas that led to those accomplishments. Those ideas are America’s true heritage.

For example, is it more important that children tour the gardens at Monticello or learn the principles of the Declaration of Independence? America can survive without the former; it cannot survive without the latter. Monticello is not America’s heritage; the inalienable rights of the individual—the rights to life, liberty, property, and the pursuit of happiness, are.

Fundamentally, preservationists are attacking America’s heritage in the name of protecting it.

America’s heritage is the freedom to live one’s life as one chooses, so long as one abstains from the use of force or fraud against others. It is the freedom to to seek those values that bring one satisfaction and happiness. America’s heritage is the recognition and protection of individual rights, including property rights.

The right to property means the right to earn, use, keep, and dispose of material values, including land, homes, and buildings. It means that the property owner has a right to modify his property, or raze it, as he deems best. “The right to life,” wrote Ayn Rand, “is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible.” In attacking property rights, preservationists are attacking America’s true heritage

If preservationists wish to protect sites that they deem historical, they are free to purchase those properties and do as they choose. Until that time, they must respect the rights of the owner. But this is not what preservationists do.

Preservationists claim that they want to preserve buildings and sites for the purpose of teaching children about our heritage. Preservationists do so by advocating laws that prohibit property owners from demolishing or renovating buildings that are deemed historical. They advocate laws that mandate certain architectural styles and materials, even when those materials are not readily available and are outrageously expensive. And what will children learn from this lesson?

In advocating laws that restrict and control the rights of property owners, preservationists teach children that might makes right. They teach children that, if you cannot convince a property owner to preserve his building, or you cannot raise the money to buy it, you can assemble a gang of like-minded individuals to pass a law. If you cannot persuade someone to your accept position, you can force him to act in accordance with your values, rather than according to his own independent judgment.

“I do not agree with what you have to say,” wrote Voltaire, “but I’ll defend to the death your right to say it.” We may not always agree with how others choose to use their property, but we must defend their right to use their property as they judge best. It is, quite simply, a matter of preserving America’s heritage.