Small Towns Big Government
By Richard Miniter
His apartment is a few minutes from Washington, D.C., and only a few steps away from Washington-style regulatory overkill. Locals deride Takoma Park’s housing department as the "paint chip police"—because they’re known for enforcing every clause of the city’s voluminous housing code, no matter how microscopic. This is where our anonymous Takoma Park resident comes in. For nearly 13 years he has been subjected to an annual apartment inspection by the housing department. Under the guise of "tenant’s rights," city officials invade the privacy of his one-bedroom flat and demand repairs every year.
In 1990, the inspections took a turn for the worse. "Clean your apartment or else," the gruff inspector said. "This place is a fire hazard," he said, pointing to a pile of loose papers and books. (The resident doesn’t smoke, has no fireplace, and the building has no history of fires.) "And clean this tub!" the inspector demanded. And if the apartment wasn’t made tidy enough for the city? The resident faced fines, citations, and even court orders. In subsequent years the same inspector ordered the resident to clean his stove and stack his books more neatly. These humiliating yearly inspections have continued for seven years.
Nothing is too small for Takoma Park’s government to regulate. The city requires a permit to chop down a tree, repair a kitchen, or build a deck. Next on the city’s agenda: banning motorized lawn mowers. Nor is Takoma Park an isolated case of local government gone haywire. Many small cities across America now carry big regulatory sticks—and use them in arbitrary ways. Greenwood, a bedroom community outside of Denver, just outlawed backyard swing sets, slides, and other playground equipment—because, the city said, they pose a threat to neighbors’ privacy. Nothing is too personal or minor for some local governments to exert control over.
In his recent book Lost Rights, James Bovard calls the spreading powers of small governments "a proliferation of petty dictatorships." It’s easy to see what Bovard means. A Columbus, Ohio resident lost his profitable parking lot when the city’s urban development agency condemned it to build…a city-owned parking garage. San Francisco Police Chief Richard Hongisto ordered city police to confiscate thousands of copies of the free newspaper San Francisco Bay Times in May 1992 because it ran a cover story criticizing him. (Hongisto was later fired.) Until recently, homeowners in Maywood, Virginia, were required to submit ten copies of a lengthy application to win the right to install air conditioning in their homes. Why the excessive paperwork? County officials decided the non-descript neighborhood was "historic." Alhambra, California, requires that at least half of every front yard must consist of live vegetation. During a recent drought, many homeowners were "caught in the crossfire of government regulations: water authorities prohibited them from watering their front yards, and zoning authorities fined them if their grass died," writes Bovard.
The Republican-led Congress has begun to turn over selected federal powers to state and local governments because smaller governments are closer to the people and will run programs better. There is surely truth to this. But while it is tempting to think of state and local governments as nimble Davids to the federal Goliath, if you look closer you will see that there are really two Goliaths. Below the federal level the U.S. now has more than 82,000 individual units of government. State and local governments have more than 500,000 elected officials and more than 13 million employees—compared to fewer than 600 elected officials at the federal level and slightly more than 2 million non-military federal employees. In other words, local government is more than six times as populous as the national government. Not so nimble.
And local and state bureaucrats function much as their federal counterparts do. Why? For one thing, many federal workers retire in their 40s and 50s and take posts in local government, bringing the federal bureaucratic culture with them. Also, most state and local agencies are explicitly modeled on federal agencies performing similar tasks and are often supervised by those same agencies. In addition, many state and local departments are partly funded by federal grants that impose an unfathomable array of detailed rules.
Even if the federal government were to disappear tomorrow, state and local bureaucracies would lumber on. Most states allow local authorities to be sued by interest groups, who often initiate lawsuits to force policy changes. Since the press rarely covers local government with the zeal it reserves for big business or Washington politics, state and local bureaucrats are less likely to be held to account for overstepping their authority. Even their bosses usually lack the legal right to fire them. And government workers’ unions are even bigger impediments to reform on the local level than they are in Washington, D.C., because their resources allow them to dominate the smaller stages.
For all these reasons state and local governments have lost many of their discretionary powers and much of their judgment. That’s why we see cases like the midwestern school district that suspended a fifth-grader because she brought a bottle of aspirin to school to treat a persistent headache.
Local governments can also fall prey to manipulation by cliques. Bankrolled by Jane Fonda and led by Tom Hayden, something called the Campaign for Economic Democracy (ced) entrenched candidates in political offices and on planning and zoning boards in several California towns, including Berkeley, Davis, and Santa Monica, during the 1980s. These localities then imposed strict rent controls, harsh anti-development rules, and punishing land-use regulations. ced’s aim of using "the political power of city government…to control and reallocate wealth at the local level" was succeeding as a local counterrevolution to Ronald Reagan’s "new federalism." When Davis voters threatened to unseat the ced-dominated city council, councilors passed a law limiting campaign contributions to $35 per person. It took more than a decade to break the group’s stranglehold on local government.
Alexis de Tocqueville observed in Democracy in America that "when tyranny is established in the bosom of a small state, it is more galling than elsewhere, because, acting in a narrower circle, everything in that circle is affected by it." He warned of an "exasperating interference in a multitude of minute details," that "meddles with the arrangements of private life. Tastes as well as actions are regulated." As in so many things,
Tocqueville’s observation is uncannily on target. All across our country, local governments are now regulating every aspect of the American Dream: homes, businesses, even basic civil rights. Tastes as well as actions are now very much fair game.
Your home is your castle only until the local zoning board has a better idea. Most city zoning rules are so convoluted, complex, and changeable that zoning and planning boards can essentially do whatever they wish to homeowners. Those who fail to bow and scrape to these authorities often suffer.
No use of private property is too minor to be overlooked by zoning boards. Laguna Beach, California, recently forbade a family from moving into their new home until they agreed to paint the house a different shade of white. Laguna Beach also took a woman to court for having a picket fence that was six inches higher than the city’s four-foot limit. Though as many as 40 houses in the neighborhood violated that limit, the zoning board cited a rule that new fences had to be shorter than existing ones.
Even after a property owner obtains the necessary permits, he can still suffer the wrath of property control boards. New York City approved the construction of a 31-story building in 1985, but changed their minds after the building was finished. The developer was ordered to demolish the top 12 stories. Seal Beach, California, ordered a homeowner to demolish a small six-foot dome he had built to teach his kids about astronomy. The zoning board had explicitly approved the dome less than three years earlier. Appealing to a local higher power rarely does any good. When a Huntington Beach, California homeowner was ordered to destroy the top floor of his home that the city had approved after several years of study, he appealed to the city council. In order to waive the zoning rules, the building code requires a "special circumstance." "The fact that the home is already built does not constitute such a circumstance," the council ruled.
As a record number of Americans start home businesses, local governments are trying to stop them. Many areas still have bans on home offices, no matter how unobtrusive the business. Highland Park, New Jersey, a township that forbids home offices, recently fined a rabbi for having a photocopier, a filing cabinet, and a typewriter in his home. Glencoe, Illinois, recently forced a financial planner to close his home office. Nearby, Chicago ordered a husband-and-wife writing team to stop working from home. Los Angeles only recently lifted its total ban on home offices, a law which, though only selectively enforced, officially barred the world’s largest collection of screen writers from scribbling at the kitchen table.
Most towns and cities strictly regulate, rather than bar, home businesses. Many follow the Plano, Texas model, which allows only one-fifth of a house’s floorspace to be used for business purposes. This rule often amounts to a ban for the young and the poor, who are most likely to start home businesses and to own smaller homes.
Home businesses aren’t the only kind that local governments try to stop. An array of rules in most major cities confers monopolies on existing businesses in a broad spectrum of occupations—from shoe shining to hair styling to taxi liveries and cable TV systems. The Institute for Justice, a Washington, D.C.-based non-profit law firm that sues to overturn such regulations, recently studied local business barriers in seven major cities and found some truly bizarre rules. Detroit forbids food from being sold from any vehicle that is used for any other purpose, thereby preventing home-based bakers from selling pastries out of the back of the family van. In Boston, a street peddler must move 200 yards after each sale or be seized by the police. Charlotte, North Carolina, bans business signs that swing, flutter, or sit on roofs. Signs that aren’t forbidden must comply with 41 pages of closely printed regulations. One casualty of the new sign ordinance: the Westover Hills Presbyterian Church, whose basic wooden sign has swung for more than 20 years. "I think it is ridiculous, myself," says the Reverend Robert Hough, "it is overstepping regulation."
Cities often use building permit requirements to force pet projects on private businesses. Atlantic City passed an ordinance requiring developers to devote one percent of their total construction budget to the funding of public art works if their project cost more than $500,000. In Pasadena, California, anyone who paints the trim on a historic building (defined as any structure over 50 years old) without the permission of the Cultural Heritage Commission faces fines, jail terms, and a five-year ban on obtaining building permits.
These sorts of intrusions were supposed to end after a 1987 U.S. Supreme Court case, Nollan v. California Coastal Council, which ruled governments do not have the right to attach frivolous requirements to a building permit. James Nollan sought permission to add two extra bedrooms to his beachfront house. The Coastal Commission finally agreed—provided Nollan surrendered the right to expel noisy people from the beach in front of his home. "Had we been treated the least bit reasonably, maybe we would not be here today," Nollan told a reporter after he won the landmark court case. Still, Nollan-like abuses continue. Herndon, Virginia, requires all developers to post a bond that will be forfeited if any of the trees they plant die within two years.
Even asking for a job—or looking like you want one—can get you in trouble in the southern California city of Costa Mesa. The city has spent more than $80,000 trying to enforce a local ordinance against soliciting for day work. Ninety-six men lingering in certain areas have been arrested in the ordinance’s first year. "If declaring that certain phrases, like ‘Need some work?’ or ‘How about a job?’ are grounds for imprisonment isn’t an unconstitutional infringement on free speech, it is difficult to imagine what is," editorialized the Orange County Register.
"Free speech for me, not for thee" seems to be the motto of other local governments as well. Mary Lynn Rasmussen, who runs the successful Okie Girl Restaurant, got in trouble with the California Department of Transportation (known as "Caltrans") when she tried to advertise the eatery near a freeway off-ramp. Caltrans denied her permission to put a sign on public property like other restaurants, because the term "Okie" was "offensive speech" and a "slanderous slur" on Oklahomans. An Oklahoma native, Rasmussen pleaded with Caltrans, and after the ban was in effect Caltrans received a letter from then-Oklahoma Governor David Walters saying that "Okie" was no more offensive than "Californian." Finally Caltrans agreed the term was acceptable, but still refused to post the sign. Why? They didn’t like the logo, which featured a buxom country girl wearing a straw hat and overalls. Rasmussen eventually won in court.
David Mann, when he was a Cincinnati city council member, was offended by something different: news racks. "We are being overwhelmed by ugly boxes. Ugly blue. Ugly green. Ugly red," he said. Mann decided to ban them. When the city attorney informed him that banning the city’s 2,000 newspaper boxes would violate the First Amendment, Mann narrowed his aim to the 62 newsracks that offered real estate guides, adult education catalogues, and other commercial material. Mann gloated when his bill became law. "I love it," he said. "The boxes were garish." Newsrack owners took the city to court—and lost. Mann was rewarded for his public-spirited efforts by being elected to Congress.
In short, state and local governments aren’t necessarily any better at respecting individual rights than the federal government, a fact that has implications for efforts by Washington conservatives to "devolve" governmental powers to the states.
The stated conservative goal is to return to the original American idea of federalism. But federalism is not the same thing as the current Washington fad of "devolution," which often means simply handing control of federal programs to states and localities. Federalism has been described by Felix Morley as "the distinctly American contribution to political art." Properly speaking, it means there should be a dynamic tension, a competition for public support, between different branches and levels of government. Our founders believed that establishing this competition would make it hard for any one part of government to diminish the people’s rights. The idea that the different branches would cooperate, or that Washington would dictate to the states the minutiae of local policy, was unthinkable in 1789. Sadly, the reverse seems unthinkable to many people today.
"Many conservatives have lost sight of the original principles of federalism," writes Clint Bolick, author of Grassroots Tyranny: The Limits of Federalism. They have come to favor "states rights as an end in itself, rather than as a means to the greater end of protecting individual liberty," he warns.
What’s the alternative to handing power to the states? Giving it back to the people. The original aim of self-government was to let individuals govern themselves, especially in their homes, small businesses, and private affairs. Will we return to the intentions of our founders? Not any time soon. In Newt Gingrich’s Washington the Federalist Papers are assigned reading, but not a guiding force.
Richard Miniter writes often for The American Enterprise.
