Land of the Free – An Update
Last year, I described a zoning kerfuffle that had gotten me into hot water with our local county authorities. I had, in a fit of naïveté, built a small wooden platform, put a canvas yurt on it, and rented it out as a popular “glamping” destination. Thinking that my rights as an American, private-property landowner made the undertaking pretty much a no-brainer, I sat back and enjoyed the glowing reviews and modest supplemental income.
I was stunned, therefore, when I was informed that not only was such a thing illegal without authorization from zoning authorities, but that there was a warrant out for my arrest over this triviality. I had apparently committed the jailable offense of engaging in construction and doing business without seeking approval from the local commissars. Forsooth.
My wife and I then spent the next year hacking our way through the thicket of regulatory red tape to be “compliant” with county codes. This included requests for special permissions to become a “Bed and Breakfast,” site plans requiring reams of paperwork and maps, and a series of public notices leading up to a formal proposal to the county commissioners. This effort was to culminate in a public presentation to the board, which would vote on our request. Remember, this was all to rent a tent.
It was humiliating, of course. The elected council sat on the dais, courtroom-style, with commissioners calling us up hat-in-hand to a microphone to testify on the merits of our proposal. Why did we feel that our business was necessary? What sorts of allowances were we making for handicapped access? What was the point of a tent, why not a cabin? And so on.
The council was divided, with half asking encouraging questions and expressing a desire to “see things like this happen.” The other half, arms folded across their chests, were clearly inclined to look with suspicion on any sort of novel enterprise. The vote came and the final tally was split perfectly down the middle, meaning that on procedural merits the proposal automatically failed. So, there went that idea. Ours and many hundreds more like it.
But the thing that goes unnoticed in these kinds of mini-dramas is that these things should not be coming to votes in the first place. The rights of property-owners are not to be “granted” by boards of elected representatives — they are sacrosanct from the outset. The right to dispose of one’s property in any manner that does not intrude on the rights of others is a hallowed principle in the Western tradition.
We seem, unfortunately, to have collectively forgotten this fundamental precept, and live instead in an era dominated by the doctrine of prior restraint, the notion that all actions (individual or corporate) should be forestalled until approved by an appropriate authority. It is an ugly inversion of a bedrock principle of a free society, remarkable not only for its flagrant injustice, but in how uncritically it has come to be accepted by the very people who once inveighed against it. We had two neighbors, for instance, who arrived at the public hearing claiming that the tent was going to be a “nuisance” and that they had “safety and trespass” concerns. We addressed each of the concerns, pointing out that the neighbors themselves (one who trespasses regularly, and one who fills the creek upstream with garbage) might be protesting a little too loudly…
No doubt, some will read this account with an inward eye-roll, saying to themselves “well obviously you can’t just do anything you want – we need rules to prevent chaos.” Such chaos is presumably avoided by the deft and sober judgment of our betters, the elected and unelected members of boards, councils, and departments instituted to protect us from ourselves. But the imagined “chaos” is a fabrication, a fictitious and overplayed trump card — invariably trotted out against any change to the status quo. It is effective because it cunningly exploits our human propensity to catastrophize. Such “what if” handwringing has increasingly, against our better judgment, been perverted into state-backed authorities with permission to say “no.” This is a serious problem. As the Cato Institute’s annual Human Freedom Index shows, liberty has taken a drubbing these last few years, especially since the 2008 financial crisis and the 2019 COVID pandemic.
The ceding of personal liberties to central power is a distressing trend, but one that comes with a silver lining: Just as the “cure for high prices is high prices,” the cure for overregulation is overregulation. The COVID-induced rollback of personal liberties has been such a roundly deplored boondoggle that some legislatures have finally moved to rescind some long-backlogged regulatory deadweight — and land-use restrictions are high on the list.
The Missouri legislature, to its credit, last year passed a new Home-Based Business law which allows a much broader scope for private-property-based initiatives. The law stipulates that a “political subdivision shall not prohibit the operation of a no-impact, home-based business or otherwise require a person to apply for, register for, or obtain any permit, license, variance, or other type of prior approval from the political subdivision to operate a no-impact, home-based business.”
In other words, as I read it, our yurt is not only legal, but the county itself was outside of its authority in requiring me to apply for permission to put it up in the first place. They forced us to endure months of formal applications when the law prevented them, as a political subdivision, from requiring it at all. And yes, the law might be new, and surely county authorities can’t be expected to keep abreast of all the latest revisions coming out of the legislature. Then again, as someone from the county told me in smug tones when I told him I wasn’t aware that renting a tent on my land was illegal, “ignorance of the law is no defense.”
The county, of course, is loath to cede its regulatory power, however unjust. Its response to my query about the law’s applicability is indicative:
We are aware of the change in law. We do not believe it changes the interpretation of your operation as a bed and breakfast that requires a Special Use Permit. The law talks about a ‘no impact’ home-based business. We conducted a hearing regarding your proposed yurt facility and heard from each of your neighbors about the ‘impacts’ they perceived would occur if the project moved forward. The Planning Commission largely agreed with that testimony and turned the SUP down. We don’t believe this is a ‘no impact’ home based business.
I, of course, remain unconvinced and I wrote back:
As it is a matter of significant legal interpretation, I have submitted the matter to the Institute for Justice, a legal advocacy group with a creditable track record of defending private property and business rights at the US Supreme Court.
You may indeed be correct in your assessment, but I feel the ‘prior restraint’ interpretation is an unconstitutional one and I am interested in pushing the matter in front of a judicial venue. I seek clarity–not only for our own case (trivial as it is) but for the larger principle involved. If we live under a system in which any neighbor or elected board is empowered to disapprove in advance any individual venture occurring on their own land, then we have effectively gutted any meaningful private property right.
It will be interesting to see where this case goes. If it takes something as seemingly ridiculous as a tent in rural backwoods Missouri to push back the dead hand of excessive authority, so be it.
Paul Schwennesen
Paul Schwennesen is an environmental historian. He holds a Doctorate from the University of Kansas, a Master’s degree in Government from Harvard University, and degrees in History and Science from the United States Air Force Academy.
He is a regular contributor to AIER and his writing has appeared at the New York Times, American Spectator, Claremont Review, and in textbooks on environmental ethics (Oxford University Press and McGraw-Hill). He is the father, most importantly, of three delightful children.
