TRACKSIDE ©
by John D’Aloia Jr.    

October 4, 2005

My home town has been in the process of revising its zoning ordinance. As a member of the town’s planning commission, I have been deeply involved in the process. Following a public hearing last month (at which no member of the public came forward to make comment), the planning commission voted to send the revised document to the city commission with the recommendation that it be adopted. The lone nay vote was mine.

My reasons were stated in an after-the-vote explanation-of-vote statement (edited to remove names of individuals and businesses):"Over the course of the past two plus years, I have proposed changes to the Unified Development Code. Some have been adopted, some have not. In many of the cases in which my proposals have been rejected, I could live with the decision of my fellow commissioners. So be it. In our form of government, there has to be give and take. I bear no ill-will towards those who did not see it the way I did - they were acting in good faith and in conformance with the way they envisioned what the community wanted in a Uniform Development Code.

"The document as it stands, contains two fatal flaws - one specific and one general. The specific fatal flaw is the requirement for home businesses to register with the city. I was unsuccessful in deleting it. I can live with the restraints placed upon home businesses in the document. I do not consider them out of line with the concept of defined residential neighborhoods. If the restraints are violated, the city would have all the authority it needs, without registration even being on the books, to enforce the restraints. The restraints can be viewed, as can other restraints in the document, as society codifying the Golden Rule. What I cannot live with is discriminating against those who are trying to develop a business, forcing them to in effect, get the city’s permission to earn a living, and assuming that they will break the law, and thus needing special attention. The home business requirement will be on the books, but there is nothing in place to indicate why it is required or how the registration will be used. What it sets the stage for is harassment, either by government or neighbors, and for the growth of city government.

"The general fatal flaw is more difficult for me to describe as it is the planning philosophy that will be codified, a philosophy that holds that land use must be forced to conform to some textbook vision that ignores the town’s historical growth, the reality of what exists today, and the inability of planners to be omniscient. Examples are spread throughout the document which intrude upon one’s peaceful use of his own property, which impede economic development, and which go beyond the document’s goals of the protection of public health, safety, and general welfare as stated in the enabling state law.

"The non-conforming use provisions of Chapter One are a prime example of my concern, by which ownership and existing uses are subordinated to a belief that city government knows better than the landowners and the market place what the best use is for a piece of property. The recent grocery store arson fire provides the basis for a hypothetical example of the document in action that is easy to comprehend. If the grocery business had been classified as a legal non-conforming use, the owner would not be allowed to rebuild and restart his business on the same site, even though it was destroyed by the felonious act of a third party. Substitute an Act of God for arson, and the result would be the same. This is not just. This is not equitable. As the document is written, and with the zoning districts defined as they are, the adoption of this revision will make several long-standing businesses in town legally non-conforming, with the negative impacts involved. Adoption will also tag many single and multi-family residences as legally non-conforming.

"In 1789, James Madison, in a speech in Congress, said "I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive and impolitic - it is also a truth, that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out." "The further we deviate from our nation’s founding principles, the further we knowingly erode our freedom. This document, as it stands, contains provisions that unnecessarily erode our freedom."

See you Trackside.