Opinion

How it became so hard to build a tree house

Photo of Anthony Sanders
Anthony Sanders
Attorney, The Institute for Justice

The U.S. Supreme Court recently handed down a big win for property rights by unanimously ruling that property owners can take the Environmental Protection Agency to court when it wrongly declares their property a federally protected wetland. Judicial review is critical to ensuring that property rights are not subject to the whim of petty bureaucrats.

Unfortunately, federal bureaucrats are usually the least of property owners’ worries. For many Americans, the most unreasonable bureaucrats are in their own backyards.

Consider Mark Grapin, a father in Falls Church, Va., who built a tree house for his sons before leaving home to serve a tour in Iraq. You’d think that wouldn’t be anyone else’s business. But his county zoning board had other ideas. It put Grapin through the administrative wringer, denying him a zoning variance he didn’t even know he needed before building the tree house, and only reversing its decision after a public outcry.

Grapin was lucky. Zoning boards across the country routinely deny commonsense zoning requests. Making matters worse, such decisions are almost impossible to reverse on appeal because judges have largely abdicated their responsibility to protect our property rights. Instead they have become servants of the petty tyrants who often populate local zoning boards.

Most people have at least a vague idea of what zoning is. Through zoning, local governments deem it is in the public’s interest to restrict certain uses of land, for example, prohibiting retail stores in residential neighborhoods. But municipalities regularly take zoning to extreme lengths, defining down to the last foot where you can build a shed, put up a fence, install a new parking space, and on and on. If you think the rules are unfair as applied to your property, you can ask for a variance, or to be re-zoned, but only if your local zoning board likes what you have to say.

If the board does not, you can appeal, but the odds of winning are close to zero. Judges make every effort to give local governments the benefit of the doubt. Zoning boards are therefore almost never overruled.

It wasn’t always this way. There was a time when courts scrutinized restrictions on our property rights, requiring the government to put forth real evidence that there actually was a problem that had to be addressed by restricting your use of your own land. But over the years, in the name of “judicial restraint,” courts abdicated that responsibility, essentially leaving property rights to the self-restraint of local officials, which history has proved to be no restraint at all.

The inevitable result is petty tyranny, as exemplified by Mark Grapin’s fight for his sons’ tree house. An appeal from the zoning board would have cost him tens of thousands of dollars with little chance to get the money back even if he won. With odds like that, it’s no surprise that local governments feel they can do whatever they want.

The Constitution is supposed to prevent this sort of abuse. But unless judges enforce the U.S. Constitution, those protections are meaningless. Thoughtless “judicial restraint” has, for too long, treated that document as a relic of the past that elected politicians are free to pay lip service to and then ignore.

What America needs now is judicial engagement. Instead of deferring to the whims of zoning boards, judges should begin doing something novel when it comes to property rights: judging. They should take the states’ and federal constitutions’ protections of property rights seriously and engage with the facts of every case, asking if a zoning board was justified in its actions, or if the evidence actually points the other way, without putting their finger on the government’s side of the scales of justice. If they did, we’d have more tree houses and fewer tyrannical zoning boards.

Anthony Sanders is an attorney with the Institute for Justice Minnesota Chapter.