The Secret Conservative War on Zoning
The American Legislative Exchange Council, the corporate lobbying group known for pushing the "Stand Your Ground” gun legislation that factored into the fatal shooting of Trayvon Martin in Florida, may be getting into a new line of business: planning and zoning.
After the furor over “Stand Your Ground” as well as a similar effort to encourage tougher voter ID rules in many states, David Frizzell, an Indiana state representative and chairman of ALEC, announced the disbanding of the group’s Public Safety and Elections task force and promised to return the organization's focus strictly to the economy.
The economy is a big playing field for ALEC’s conservative, free-market and limited-government message, however, and it appears that land use regulations at the state and local level are now in its cross-hairs. In Massachusetts, a recent economic development bill contained the following bit of language that was just unusual enough to attract the attention of legislative staff:
Section 21 of chapter 40 of the General Laws, as appearing in the 2010 Official 1464 Edition, is amended, in line 4, by inserting after the word ‘limits,’ the following:- 1465, provided that, notwithstanding any general or special law to the contrary, a city or town may not make any ordinance or by-law interfering with interstate or intrastate trade or commerce or regulating any product or consumer good.
Banning cities and towns from "interfering with interstate or intrastate trade or commerce or regulating any product or consumer good" is interpreted by legal experts as effectively unraveling local zoning and regulatory authority.
The language was removed from the bill that ultimately passed. The buzz around the State House was how similar the "poison pill" phrasing was to other ALEC efforts, only with even greater chances for passage because of its much less controversial subject matter.
ALEC generally doesn't come right out and claim responsibility for these kinds of insertions. The communications director for ALEC in Washington, D.C. did not respond to my inquiry. But this wouldn't be the first time that the group delved into matters of land use regulation, planning, and zoning.
The Center for Media and Democracy's ALEC Exposed website identified another model bill seeking to do away with local zoning in rural counties. The Act Granting Authority to Rural Counties to Transition to Decentralized Land Use Regulation states as its purpose that "the planning and zoning authority granted to rural counties may encourage land use regulation which is overly centralized, intrusive and politicized ... and that rural counties, local elected officials and their citizens may reasonably prefer transitioning to a system of decentralized land use regulation based on restrictive covenants and the common law of private nuisance."
The backlash against "intrusive" land use regulation has a long history in America, grounded in the private property rights movement and the notion that certain government actions — an urban growth boundary, for example, or an ordinance requiring an affordable portion in new residential development — essentially becomes an unconstitutional "taking" of private property. Many conservative groups have advocated against smart growth since at least the 1990s, and recently Tea Party activists have stormed local planning hearings arguing against everything from regional planning to master plans and public works projects. The American Planning Association has sponsored "boot camp" training for local planners to deal with accusations that their work is part of a United Nations conspiracy to bring about dense "human settlement zones" as part of Agenda 21.
From a tactical point of view, the breadth and diversity of the assault on planning is impressive. All it would take is one state to pass the same language in the economic development bill in Massachusetts, or the rural counties model legislation, and ALEC and like-minded advocates would have themselves a high-profile test case, not to mention a full employment act for lawyers.
I'm guessing your local planning director didn't sign up for this kind of combat. The professionals who have been immersed in that driest of endeavors, zoning, couldn't have guessed they'd be in the middle of a culture war.