Clear Views--and a Total Lack of Insight

Basic legal doctrine has it that the state police power is the inherent regulatory power of government to do what is reasonably necessary to promote public health, safety, welfare and morals. That sounds pretty good until you recall Lord Acton’s admonition that power tends to corrupt. That it does. Case in point: Glendale’s harassment of Daniel and Melanie Trevor for--are you ready?--putting up a quaint, white, 3 1/2-foot-high picket fence around the front yard of their family home, the same as their neighbors. Weird? You bet. But even weirder is the city’s justification.

The reason for its absurd behavior, says the city, is to limit fence heights to 18 inches. Eighteen inches? Is Glendale trying to keep roaming dachshunds out of people’s front yards? Nope. The 18-inch height, says the city, is “to keep views unencumbered.” Huh? Are the residents of Glendale only 2 feet high and in need of city hall protection of their views above that lofty height? Hardly. So what in the world is going on here? And what about the Trevors’ neighbors? Why can they have regular picket fences? Under the city’s rules, if you violate the fence height ordinance and the city does nothing about it, you get to keep your fence. The neighbors evidently violated that law awhile ago, so they are OK. But the Trevors, the new kids on the block, are the only ones who don’t get to do what their neighbors can.

What we have here is a case of an intrusive government abusing its power and sticking its nose where it doesn’t belong. There is absolutely nothing about the Trevors’ picket fence that touches on public health, safety, welfare or morals, justifying regulatory intervention by the city. If someone were to build a “spite fence” to harass a neighbor, or a fence high enough to obstruct views, that might be another story. But hassling homeowners for putting up an attractive 3 1/2-foot white picket fence around their own front yard to keep cars from running over the edge of their lawn? Gimme a break!

What is going on here is a civics lesson on just how intrusive our land-use laws have become. Land-use regulation is not some sort of municipal divine prerogative. Zoning is only about 80 years old. It was originally adopted to separate incompatible land uses, so no one could build, say, a factory in a residential neighborhood and thus inflict a nuisance on the neighbors--at least that was the theory.

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The first time zoning came up in court, after World War I, a federal judge in Ohio held it to be unconstitutional. He believed that zoning would cause social and economic segregation of people in a community. He was right on that point, of course. A good example is provided by Thousand Oaks, where young people and workers on the lower rungs of the pay scale cannot afford to live because of the prevalence of large-lot zoning and the city’s unwillingness to relax its restrictive land-use regulations to accommodate more affordable housing.

Eventually, in 1926, the U.S. Supreme Court upheld the validity of zoning, on the theory that when applied reasonably, it was a form of nuisance prevention and thus within the bounds of the state police power.

But Lord Acton was right; power not only corrupts, but it also tends to expand unless checked. In the case of land-use control laws, municipal power wasn’t checked so it mushroomed. Before too long we had all sorts of whimsical municipal regulations controlling lot and home size, setbacks and landscaping, the appearance of roof shingles, architectural designs and even the color you can paint your house. No one has ever tried to offer a rational explanation of how painting your house white, or gray, or a colonial-style, white-trimmed Wedgwood blue (as opposed to the yucky, nondescript “earth tones” required by some cities) poses a threat to public health, safety, welfare or morals. It plainly does nothing of the sort.

And yet the lure of being able to order people how to run their lives is endemic in city governments, and municipally decreed absurdities abound. Such as ordering little kids selling lemonade in front of their homes during the summer to comply with zoning laws and to get a business license. Sometimes they go beyond the merely ridiculous and impair people’s constitutional rights--not only property rights, but First Amendment freedoms as well. And so the city of Norwalk told an Indian Sikh congregation that its temple could not look like a proper Indian temple, but had to be disguised as an ersatz Spanish mission. How invading the Sikhs’ religious freedom and forcing them to worship their God in a building that looks like a Spanish Catholic church advances any legitimate government policy has gone without explanation.

And in Culver City, the City Council decreed that developers are required to install “public art” in their projects, and that this art has to be approved by the city, not the developers who must pay for it. The Los Angeles Redevelopment Agency does the same thing regularly. You’d think that such blatant city censorship would evoke a swift reaction from the press and courts. But hey, this is California, man. Here, when it comes to land use, common sense and the Constitution take a back seat to municipal whims, no matter how unreasonable--our courts see, hear and speak no evil. Here pornographers have freedom of speech, but not landowners, and most of the time the press comes down on the side of the overreaching land regulators. The late Richard Babcock, dean of the nation’s land-use bar, wrote in one of his books that in California the courts have elevated government arrogance to an art form. And so they have.

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As of this writing, the Glendale city council has announced that the Trevors can keep their white picket fence for another month while the council ponders what to do about this grave issue. One of the councilfolks was quoted in this newspaper as saying that is a highly complex issue with “so many competing needs and interests.” That’s municipal double talk that translated into English means: We have no idea how to extricate ourselves from this absurd predicament of our own making, but maybe folks will forget about it if we can stall things for a while. Which may also explain why the city council picked 18 inches as the permissible fence height. That’s the height of a midget-sized fence, an attribute that might well symbolize the intellectual reach of the folks who run the Glendale City Hall and pass so many of our land-use laws.