A 1982 President’s Commission on Housing Report made two key recommendations that, had they been implemented, would have made significant advances in protecting citizens from abuses of their private property and other constitutional rights by local zoning officials. Legislation introduced this past session in Virginia provides a good model for finishing the job.

It is the nature of government at any level to expand its power unless constrained by law, and that’s been the case with zoning and land use officials. They have become well-organized and powerful special interests in their state capitals, with intrusive control over our private property.

Zoning power has made some localities act as if they were private homeowners associations, doing both picayune and largely invasive acts such as regulating the picket fences we wish to put up, requiring permits for party tents, and even engaging in unauthorized, warrantless inspections of private property.

Besides intruding on fundamentally private and personal decisions about our homes and lands, zoning and land use laws are frequently abused to discriminate, to violate First Amendment and other constitutionally protected rights, and to politically bully citizens.

Local ordinances and administrative enforcement typically evade due process protections for citizens, which make these laws especially dangerous and susceptible to abuse. Now the Feds even plan to combine with local forces to pursue ideological agendas over our property. For example, President Obama recently signed an Executive Order on Climate Preparedness for his intrusive, lawless schemes against private property rights.

The 1982 Reagan Report recommended that zoning enforcement should bear the burden of proof that it is pursuing a “vital and pressing governmental interest.” The reports states, “In litigation, the governmental body seeking to maintain or impose the regulation should bear the burden for proving it complies with the foregoing standard.”

The report also expressed the desire to overturn a judge-made doctrine that zoning ordinances are presumed constitutionally valid.

The United States Supreme Court ruled in Euclid v. Ambler Realty Co. from 1926 that local zoning ordinances are presumed constitutionally valid. The burden was placed on citizens to prove that ordinances violate their property and other constitutional rights.

That was a flawed decision unworthy of being respected as precedent. Local ordinances do not go through a constitutional structure of enactment by two legislative chambers and threat of executive veto, and therefore merit no presumption that they are constitutional. Zoning ordinances may be enacted by as few as three officials in many jurisdictions. They are often enforced by overzealous local bureaucrats with far too much discretion over our most personal and prized possessions: our homes and land.

The Reagan Report states,

“The Commission believes that in recent years our legal system has weakened the property rights of owners of real property and largely ignored the implicit rights of newcomers deprived of affordable housing by excessive or exclusionary zoning. This imbalance should be redressed by State legislatures. But there is another potential source of protection: the courts.”

The Report then states,

“The Commission believes the pendulum has swung too far away from the right to enjoy the ownership of real property and the important societal interests of increasing mobility and access to housing opportunities. Accordingly, the Commission believes the Euclid doctrine should be reexamined. The Commission recommends that the Attorney General seek an appropriate case in which to request review of the Euclid doctrine in the context of modem land-use issues and the due process protections afforded other property rights in the 50 years since Euclid was decided.”

Arguing tens years later against the presumption of constitutionality for local zoning and land use laws, law professors A. Dan Tarlock and Daniel Mandelker wrote,

“[Z]oning decisions are too often ad hoc, sloppy and self-serving decisions with well-defined adverse consequences without off-setting benefits,” And, “History knows periods of transition and great change. In land-use law, this is one of them. The presumption of constitutionality, once the vaunted paradigm of land-use law, no longer holds this position.”

The legislation that was introduced in the Virginia General Assembly this past year, HB 1219 (text here and described here), provides remedies for citizens who are victims of zoning violations of rights, with awards of damages and attorney fees. It also negates the presumption of constitutionality, and shifts the burden to local government to prove that their zoning ordinances are constitutional.

The legislation was written after Virginia farmer Martha Boneta was charged with violating the law by hosting a birthday party for eight little girls without a zoning permit and site plan. Boneta received national attention for leading a grassroots charge that included “Pitchfork Protests.”

The “Boneta Bill” was drafted to govern how local governments may require permits for farm activity and commerce. It took effect July 1 as reported by Farm-to-Consumer Legal Defense Fund, but that is only half the battle won. It is a compromise based in the subjective standard of the “health, safety and welfare” of the community, which the Reagan Report says should be proven by local governments. Also, it provides no “teeth” to enforce it and discourage violations by localities.

Citizens such as Martha whose rights are violated often cannot afford to enforce their rights in zoning matters, especially in the face of a constitutional presumption against them. The deck is still stacked against citizens when zoning laws are abused.

HB 1219 is citizen-protection legislation, and had no lobbyists or well-funded special interests prowling the corridors of Richmond on its behalf. It needs to be re-introduced in Virginia, and it serves as model legislation for all states.

For over two centuries before Euclid, the legal maxim emanating from the common law was that a man’s home is his castle. It is time for these Reagan-era property rights reforms to become law, and correct a poorly informed judge-made doctrine that allows localities to mess with our homes, our “castles.”