Pendulum Balance

"Still Mine"

Balancing the Pendulum of the
Proper Role of Government

“Still Mine” is a movie based on a true story about a man who "just wanted to build a house" so he could take better care of his ailing wife. Instead, he ran headlong into the heartless buzz saw of a local government regulations and about got himself thrown in jail at age 92.

Watch the whole movie if you can, but the movie trailer captures the essence. For the original true story, click here.

In addition to being an inspiring story about marriage and family commitment (minus a couple awkward scenes), it also takes on the proper role of government and regulation in a interesting way, particularly relevant as election season is upon us. Although the movie looks at the absurdity that can come from the building permit process run amuck, the same principles apply to all levels and roles of government and regulation from business licenses to anti-donut and soda laws. Take zoning laws for instance, also known as land use regulation. What started around 100 years ago justifiably as a means to protect public safety and by extension a means to prevent neighbors from harming neighbor's has morphed in scope to add two additional elements:

  1. JailCities and Towns have taken on the new role of "granting" rights to use property that with the exception of the above two criteria (public safety and protection of other property) are unalienable Constitutional rights endowed by our Creator that at some lost and forgotten time were revoked in the name of zoning laws. Think through the moral dilemma of “We the People” through our proxy agents of city, county, or state government elected officials “granting rights” that once existed as a natural condition of the Constitution. But, once upon a time (that most living today don’t remember) those rights were revoked by previous generations of “We the People.” Just like in the movie, Craig Morrison “Just wanting to build a house,” my Grandfather in Mesa and cousin Newell still living today in Queen Creek could remember a time that if you needed a barn, you went out and built a barn. They built houses together in the 1940’s with their own hands, skills, and labor, without the benefit of modern building codes. Both homes are still standing sturdier than any new home you would find today. With that memory of a different time that younger generations don’t have, Newell is mind-boggled at the layers of restriction, regulation, road blocks, “you can’t do that” attitude, and added cost required in our “code and inspection enlightened” modern day. No, Towns and Cities were not always in the business of “granting” these “rights.” Before you mark your ballot, think a moment on how we got here, what we’ve gained for it, and what we’ve lost in terms of how we build, what we are allowed to build, and where we are allowed to build it. Yes, there have been gains. Yes there have been losses. Just be mindful of the cost-benefit analysis and the trade-offs. No, I am not advocating for an end to building codes or zoning laws. They do serve a critical purpose (see below). I am just asking that careful consideration be given to their purpose and origin before administering them with too heavy a hand or with intent that exceeds their actual and proper role.

  2. Beyond the origins of public protection, zoning laws have become a means for a Town to acquire (i.e. transfer) land use benefits from private property owners to the benefit of neighbors or the Town as a whole. All too often neighbors oppose land uses that don't bring added benefit to their personal needs regardless of any lack of meaningful harm to them and certainly regardless of the rights on or impacts to the requesting property owner. Towns often make land use decisions based on needs of the Town with little regard for harm to property owners. Written into state statute for general plan changes in Arizona is the following criteria: “That the amendment [request/change] constitutes an overall improvement to the General Plan and is not solely for the good or benefit of a particular landowner or owners at a particular point in time.” Surprised or even unsettled by that? If you own something, perhaps you should be. Now, there is a valid and proper expectation for property owners to consider and participate in the good of the Town (see below). But, consider the Constitutional implication when a property owner can ask for a land use that has no negative impacts on neighbors, the Town, or public safety, and the request can be denied if the property owner cannot demonstrate some added benefit to the Town. Does that seem fair, balanced, or right? Merely wanting to do something with your property for the benefit of you and your family is not justification enough in the State of Arizona to “grant” or better said “give back” rights whose origin and justification of revocation may have been lost to the fog of time and generations. Taken to the next level, Towns can say to a property owner: "We need your property to be used for something the Town needs. So, sorry, you can't use it for what you need." Most people would be surprised how much private property sits vacant for years or even decades because a Town used its regulatory authority to hold a property off the market for a future need of the Town. Even though the property owner still holds the deed, as a practical matter, the Town can take functional ownership of the property leaving the property owner to bear the cost of ownership while forgoing the benefits. Yes, that is how the law has evolved to be today. That doesn't mean the law requires towns to treat private property owners unfairly. It only means they have been given legal standing through zoning laws to do it if they so choose. Notice in the movie how harsh and mindlessly the city official wields his hammer of "The Law." Laws and the fairness by which those laws are administered are only an extension of what "We the People" have either asked for or at least passively tolerated through our choice of elected officials.

Stop WorkNow, as I said, there is a valid role for land use regulations whether they be building codes or zoning laws. Property owners should be prevented from harming a Town or neighbors. Not all land use requests are harmless to neighbors or the Town. There is a really good reason we don’t allow houses and schools next to toxic waste dumps. Building permits and safety code comes as the result of a grave, tragic, and sometimes fatal history of harmful and shoddy construction and therefore are necessary for public safety. Additionally, Town’s presumably bring significant value and benefit to the properties within a Town. So, it is proper AND fair for development projects to benefit the Town in return. Development absolutely should pay its way for any costs it incurs on the Town. Yes, Town’s need a vision for quality, economic viability, design, and defining character that very much relies on good land use policy and regulation. Property owners should play a partnering role in achieving that vision. By purchasing land in or agreeing to annex into an incorporated Town or City, we voluntarily sign up for the restrictions and regulations that help promote those goals that in turn benefit us as individuals and the value of our property. That is much like when we become a member of an HOA through a voluntary purchase of a home in an HOA neighborhood. As much as people complain about HOA’s, they do serve a purpose of “keeping up the neighborhood” just like Town regulations and General Plans help “keep up the Town.”

PendulumBut just as HOA’s can shift out of balance and control-hungry neighbors can commandeer an HOA board to the overall detriment of individual home owner rights AND the neighborhood as a whole, the same can and does happen at the Town level. Click here for just one of countless over the top HOA stories. It is tough but critical to strike the right balance. Think of balancing a pendulum. With no land use regulation (zoning law), you get the wild west in the 1860’s where you have no protection against your neighbor up the hill putting your family and property in danger by what he does with his land. Without proper oversight, public safety (including the environment we all share) is compromised by dangerous buildings and developments. Conversely, with too much land use regulation, you eventually approach this quote from the Communist Manifesto: “the theory of the Communists may be summed up in the single sentence: Abolition of private property.

Still Mine HouseToday we are nowhere near either of those two extremes. However, my belief is that for the past several decades, there has been little danger of the pendulum swinging back toward the wild west. Instead, by our own doing (either through passive complicity or proactive corroboration), little by little we march ourselves forward to more restrictions and onerous regulatory burdens. California is far worse, but given enough time we can be just like them if we allow it. Though the reasons for regulation often begin as noble, left unchecked, they can grow in scope, then take on a whole new life generating results never originally intended, sometimes even becoming harmful.

There was a time when you didn't have to ask neighbors or community permission to use your property. In some cases, that caused serious problems that legitimately needed solutions. That became the origin of all kinds of laws and city ordinances including zoning laws but also regulations about noise, trash, parking, fences, weeds, junk vehicles, animals, structures, building codes, drainage, and so on. Each of these has obvious need and benefit. Today we don't have to ask permission for everything we want to do on our property, but we do have to ask permission to do quite a lot. Ask the question: At what point does that go too far? Doing "anything we want" without having to ask permission doesn't work. But, having to "ask permission for everything" is also a dark place I hope most of us never wants to go. The "Pendulum Graphic" is a way to visually measure that progression against the two extremes and bring the pendulum back into balance. I've written this based on my view that the pendulum left unchecked will naturally move toward too much government control. If the day comes that I feel it is leaning the other direction, I'll post another message warning against the dangers of government being too lax.

Although thoughtful restrictions are an inherent need in civil society, we must never forget, the chains with which we bind our neighbor will someday bind us. So, bind him with care or not at all. When we allow the pendulum to swing too far away from individual liberties for the sake of public needs, the common good eventually becomes common bondage.

Key to a balanced pendulum is getting the right people on the proverbial HOA Board also known as the Town and City Council. Yes, we need to look at candidates ability to advance the quality and vision of our Towns and Cities. Yes, we should be careful not to elect people that would advance individual liberties at the cost or detriment of our Towns, Cities, and neighbors. But, because of the continued pressure to move the pendulum farther away from individual rights, I consistently seek out and support candidates whose natural inclination is to keep the pendulum in check rather than advance it toward more government.

It seems so much easier for elected officials to push the pendulum one notch further toward more control, yet, harder to pull it back. The starting point for some elected officials is: “There aren't many problem that government can’t or should’t try to solve.” I support people who’s starting point is: “Government should only solve problems within its proper and limited role, and never at the expense of individual liberties.” It is surprisingly easy for an elected official to expand the reach and role of government, yet, nearly impossible to dial it back. That is why the natural, unchecked inertia of the pendulum is to grow, not shrink government. Instead of being easy, it should actually be hard to expand government. That happens best when there are elected officials who constantly gut check ideas, even ones that sound really good, against the true and proper role of government, then push back when needed.

Some people vote for the person they think will give them the most. People do it. Corporations do it. Special interest groups do it. That is the pressure that keeps the pendulum moving toward a bigger and therefore more controlling government. Instead, I often vote for people I think are likely to hurt me the least. Yes, I do look for people with vision, leadership, and community building skills. However, I always go to the ballot box wondering who will do the least harm in terms of eroding individual liberties and nudging the pendulum toward excessive and inappropriate government control.

Who we elect has everything to do with how much we slow the march of that pendulum and from time to time even pull it back a notch or two toward the balanced middle where individuals do not harm the community and the community does not harm the individual. Even better, a balanced middle where Towns and individuals can work together as the true partners they ought to be in building a better community.

Jason Barney
August 2014

Check out this ridiculous Sponge Bob Square Pants episode that has some of these same goofy themes. Mindless regulation. Mindless enforcement. Putting the fate of local business at the arbitrary mercy of popular vote for no good reason. Happens in real life all the time! Watch on YouTube!

Jason Barney | jason@jasonbarney.com | 480-818-2000 | Back to Home Page