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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Well, you'll be pleased to know Nia that I've already had two mugs of coffee, so I'm in really good form this morning.
N. Rodgers: Goody for me. Can we start this episode by saying, again, we're talking around the topic of abortion, but we are not discussing abortion itself?
J. Aughenbaugh: Yes.
N. Rodgers: That is something that we'll leave to the listeners to make their own decisions about. That is a personal decision and a personal moral choice of your own. We're not trying to talk about that, but what we are trying to talk about today is the use of zoning ordinances to try to restrict abortion access.
J. Aughenbaugh: That's correct. Yes.
N. Rodgers: In case anybody's wondering Bristol, Virginia, we're looking directly at you. We're not even giving you a side eye, we've actually turned our heads and we're staring at you straight on because that's where locally this issue is coming up, but I suspect it's coming up in other places.
J. Aughenbaugh: Yeah, it would come up in other places.
N. Rodgers: Can you give us a background on how.
J. Aughenbaugh: Listeners, what Nia is referring to is at the time of our recording, Bristol, Virginia, which is located in far Southwest Virginia.
N. Rodgers: Which by the way is associated with Bristol, Tennessee. While that doesn't sound like it's going to be important, it's going to be important later in the story, so make a mental note.
J. Aughenbaugh: Bristol, Virginia is located in a county in Virginia. The name of the county is Washington County. As Nia pointed out, the city of Bristol actually crosses state boundaries, so you have a Bristol, Tennessee and a Bristol, Virginia. In Bristol, Tennessee last year, a so-called trigger law went into effect and the trigger law has nothing to do with guns. The law became triggered or operational after the US Supreme Court ruled in Dobbs versus Jackson, that its precedence in Roe v. Wade in planned parenthood versus Casey were overturned, and the way the Tennessee State law worked is that if those precedence were overturned by the court, then immediately in the state of Tennessee, a woman's right to choose would be eliminated. Bristol, Tennessee had an abortion clinic. When the Tennessee trigger law went into effect, the abortion clinic moved from the Tennessee side of Bristol to the Virginia side.
N. Rodgers: They moved buildings.
J. Aughenbaugh: Yeah, they moved buildings. Late in the fall, well, it was late October last year, 2022, the Bristol, Virginia City Council began the process of enacting a zoning ordinance which would in effect ban any and all abortion clinics from operating in the city.
N. Rodgers: Sorry, a brief side note. In Virginia, a woman's right to choose is still preserved.
J. Aughenbaugh: That's correct. Yes.
N. Rodgers: There was no trigger law in Virginia?
J. Aughenbaugh: That's correct.
N. Rodgers: The right to choose has not been eliminated the way it has in Tennessee. Hence the, "We will pick up sticks and move a hundred feet that way and be in Virginia."
J. Aughenbaugh: Yeah, that's right.
N. Rodgers: It is legal in Virginia to have an abortion.
J. Aughenbaugh: Yes. But when Nia and I saw a series of news articles about what Bristol, Virginia was considering in regards to the local zoning ordinance, this is when Nia and I got interested because it touches upon a broader issue, which is local owned state governments using zoning ordinances. This would be local governments using zoning ordinances as a way to restrict and or in effect eliminate businesses, practices, operations that they don't want within their jurisdictions.
N. Rodgers: Basically, how this episode came about was I asked Aughie the question, first of all, I used a four-letter word. I said, ''This doesn't seem fair.'' Aughie is like, ''Fair, the four-letter word.''
J. Aughenbaugh: I've heard of the US constitution, yes.
N. Rodgers: Then I said, ''Not only does it not seem fair, how did they even do this?'' He goes. ''Oh, there's a whole lot about zoning laws.'' You need to understand what cities are empowered to do and not empowered to do. Now he's going to answer those questions for everybody because I can't imagine I'm the only person who has this question. Which is, one, is it legal to do what they're doing? I suspect that question you're going to say is murky. Two, what gives them the right to control this space in their jurisdiction?
J. Aughenbaugh: Let's look at that latter question first. Basically, what Bristol, Virginia was considering is what's known in the US Constitution as a taking. Because they're basically taking property and they are using it for, if you will, a public purpose. What we're talking about here is, the Fifth Amendment of the US Constitution reads in part, "Nor shall private property be taken for public use without just compensation."
N. Rodgers: Eminent domain.
J. Aughenbaugh: Yes. This is known as the power of eminent domain.
N. Rodgers: Which there is some controversy about.
J. Aughenbaugh: There is significant controversy.
N. Rodgers: Because the founders used a phrase so vague, "Without just compensation," which you can't see me putting quotes around that, but I'm putting quotes around those two words. What is just? What is compensation?
J. Aughenbaugh: There are three operable, if you will, concepts in that one clause, Nia. First of all, when does the government actually take a property? Do they have to physically take the property or can they issue regulations that make it nearly impossible for you to enjoy the property the way you intended when you purchased or rented it?
N. Rodgers: They don't have to necessarily take possession of it. Where your house is Aughie, turns out to be a dangerous spot of whatever, someone have to tear down your house and you can't actually build a house on that property. You're like, but that's my property, and they're like, yeah, but we're not taking your property, we're just saying you can't build on it.
J. Aughenbaugh: Or you can't build further on your property. You can keep your house, Aughie but if you want to go ahead and put that monstrosity of a huge deck on the back, well, if you tear down that tree, that tree is actually the home of an endangered species, so you can't do that. But you still got your property, Aughie.
N. Rodgers: But we're telling you how to use it.
J. Aughenbaugh: That's right. The second part is for public use.
N. Rodgers: Hence the tree holds an endangered species owl and that is in the public interest that that owl be protected.
J. Aughenbaugh: That's right.
N. Rodgers: More than your personal interest in building a humongous stack.
J. Aughenbaugh: Yes. Then the third operable part is just compensation, which as you pointed out, it's really controversial.
N. Rodgers: Yeah, because I'm just telling you you can't do it. They don't have to give you money to not build your deck.
J. Aughenbaugh: Or the courts have historically deferred to whom to determine the just compensation.
N. Rodgers: I'm assuming the market.
J. Aughenbaugh: No, the government.
N. Rodgers: It's in my best interests to tell you that your property is worth a dollar, here you go. That seems unfair. The guy who's paying you gets to decide how much he's paying you.
J. Aughenbaugh: But you can extend the takings clause into a broader political theory conflict and the conflict is this. On one hand, our Constitution is supposed to protect individual liberties. On the other hand, the government has the authority to do things on behalf of the collective, ie, the public use. Zoning ordinances fall within local government's power to restrict land usage for the collective benefit and this is known as or a part of the state police power. The power to regulate private behavior for public health and safety. By the way, public health and safety has been defined by the courts to include morals.
N. Rodgers: Like public drunkenness and things like that.
J. Aughenbaugh: For instance, laws that prescribe sexual behavior. Prostitution is bad.
N. Rodgers: We've zoned out prostitution here. You can't do it here.
J. Aughenbaugh: Or clubs that allow new dancing, etc. Let's go back to the specific question. Can Bristol, Virginia, and more specifically, the Washington County pass a zoning ordinance that would effectively prohibit what Virginia State law explicitly allows women having the right to choose?
N. Rodgers: As of this recording, last night, they did that very thing.
J. Aughenbaugh: Yeah. Washington County, and I think a 5-2 vote followed the recommendation of their zoning board, and said that there will be no abortion clinics, not only in Bristol, Virginia, but the entire Washington County.
N. Rodgers: Now, my question for you is how soon before there is a lawsuit?
J. Aughenbaugh: I suspect probably within a month, maybe two.
N. Rodgers: A lawsuit could come from two different directions. Because the lawsuit could come from the Attorney General of Virginia saying you don't have the power to effectively ban a thing that is legal in the State of Virginia, or Commonwealth of Virginia or it could come from an individual saying, you are depriving me of my constitutional liberty.
J. Aughenbaugh: Yeah, my state constitutional liberty. Because in Dobbs v. Jackson, the US Supreme Court said there's no right in the US Constitution for women being able to choose.
N. Rodgers: They send it back to the States.
J. Aughenbaugh: That's right. Well, there's a third party. You could file a lawsuit. That would be the abortion clinic. Because the clinic could go ahead and argue that we are providing a service that is protected by Virginia law. But through your zoning ordinance, you're making it impossible for us to provide that service slash right to Virginia women in this jurisdiction. You mentioned the Virginia attorney general.
N. Rodgers: Briefly those are the three who would have standing. Lots of people could sue about this. I could sue about this, but I don't have standing because I don't live there. It's not my business that's being harmed.
J. Aughenbaugh: Yeah. You could not show injury. That's the first question in determining your ability to stand in front of a court and say, here are my lawsuit.
N. Rodgers: But a woman of that county could do that.
J. Aughenbaugh: An abortion clinic could. Or you mentioned the Virginia Attorney General and this is one of the political intervening variables. Because the current attorney general in the Commonwealth, Virginia is Jason Miyares and Jason Miyares is anti choice.
N. Rodgers: He might not intervene.
J. Aughenbaugh: He might not intervene.
N. Rodgers: But he might be forced to intervene because you can't have counties and cities going rogue and making decisions that affect people's constitutional rights. Because yes, this comes from that question that we talk about sometimes of when you like it, it's okay with you and when you don't like it, it's not okay with you. He might not want to intervene because he actually likes the outcome of this. But in a longer greater sense, the outcome of counties just deciding that they're going to change zoning laws to outlaw all stuff, that opens a big barrel, that he's got to deal with.
J. Aughenbaugh: But he's not the one who's open that barrel near. His predecessor Mark Herring did it when Mark Herring refused to enforce the Virginia prohibition on same-sex marriages.
N. Rodgers: Exactly. It goes either way.
J. Aughenbaugh: Jason Miyares could go ahead and say, "Well, I'm following the precedent of my predecessor and I'm not going to enforce a law that I believe is wrong." Which is what Herring said. Now you have a political intervening variable in all of this. On one hand, Virginia gives local governments broad authority to issue zoning ordinances. In fact, in what year was it? I got it here in my lecture notes, 2011. Local governments in Virginia may enact trap ordinances. Again, listeners, you know we love a good acronym on this podcast. TRAP stands for targeted zoning ordinances for abortion providers. On one hand, Virginia, in the past decade enshrined into law a woman's right to choose. But there is a law that was passed earlier in 2011 that says local governments can use zoning ordinances to make it extremely difficult for abortion clinics to operate.This would be a case near where that law could be challenged because many abortion clinics argue that TRAPS are not inactive for public health or safety, which is the typical, if you will, justification for zoning ordinances. We don't want to put a big shopping center near a school because all that traffic around all those kids seems to be inherently dangerous.
N. Rodgers: A disaster waiting to happen. Correct. Zoning laws in a lot of ways. Sorry. We may sound negative about zoning laws in this particular case, but what we're talking about are zoning laws that are designed to protect a population. Most of the time with zoning law, like you said, it's not that cities are anti-mall, they're pro-children. It's a different outlook. How do we make sure that we protect children from lots and lots of traffic? Well, let's not put a thing that causes lots and lots of traffic next to a school because we're going to end up with a dangerous situation there.
J. Aughenbaugh: Zoning ordinances listeners are the classic example of government trying to balance competing interests. Because on one hand, a local community is going to want to increase its tax base. So they're going to want businesses to move into that community, create jobs, and have those workers and those businesses pay taxes. On the other hand, you also have other, if you will, public goods that need to be provided. You might have schools, you might want people to be able to go to their church, you want people to go ahead and buy homes and feel safe and comfortable in their neighborhoods. So how do you balance commercial versus residential versus educational versus religious, etc?
N. Rodgers: Can you try to do that with zoning laws? For instance in Aughie's house. That's Aughie's house. Aughie's house is a ranch-style one-story house.
J. Aughenbaugh: Yes.
N. Rodgers: If the neighborhood changed the zoning and allowed around in the two lots on either side for people to build 20-story apartment complexes and block out the sun to his property, that change in zoning alters the worth of his property. It alters his lifestyle. Aughie likes to sit outside and drink his coffee in the morning, and you can't do that anymore because now there's no more sunshine.
J. Aughenbaugh: Or I'm in area that zone residential, but what if they went ahead and allowed the owners of two of the adjacent lots to tear down houses and have a casino built?
N. Rodgers: The noise and the lights and the people all the time. We've seen that, that was what we saw with the casino debate was, not in my backyard. Don't put that next to my house.
J. Aughenbaugh: I have nothing against casinos or people gambling. If that's the way you want to go ahead and relax or hide, feel free. But I picked this neighborhood in part because it's a quiet, working-class neighborhood.
N. Rodgers: You want to be able to ride a bike with your kid.
J. Aughenbaugh: That's right.
N. Rodgers: Without danger of being run over by a lot of traffic.
J. Aughenbaugh: That's right. Last night, for instance, when I got home from work, within like 15 minutes, I saw five of my neighbors walking their dogs and or their kids. I got to be honest since it was at night, I couldn't tell in some cases, which ones were the dogs and which ones were the kids, but that's neither here nor there.
N. Rodgers: That's a long day.
J. Aughenbaugh: Okay. But zoning again reflects that classic, if you will.
N. Rodgers: Or we're going to build public housing, but we're going to build it way out and not have any transportation to it.
J. Aughenbaugh: Yes.
N. Rodgers: It prevents something like that where the public housing is a great idea. Low-income housing is a great idea, however, we know that lots of low-income housing folks need to use public transportation. If they can't do it then what you've done is create a useless place for them to live because now they have to try to figure out how to get into the city into their work.
J. Aughenbaugh: Historically Nia, State and Federal Courts have typically shown quite a bit of deference to local governments in particular, in regards to their zoning ordinances. Local governments, for instance, will use local zoning ordinances to keep porn shops and theaters and adult clubs away from schools and churches.
N. Rodgers: Side note, Hollywood hustler just opened across from the children's science museum.
J. Aughenbaugh: I saw that.
N. Rodgers: On Broad Street in Richmond.
J. Aughenbaugh: Yes. Right?
N. Rodgers: Richmond never change, man. You just you're, aren't you? Some cities clearly don't have these ordinances or don't yet have these ordinances.
J. Aughenbaugh: Have those ordinances. That's right. Keeping a commercial business's parking lot away from a residential area because if you have a lot of cars trying to get into a business's parking lot, that might cause a problem in a residential area with a lot of kids.
N. Rodgers: Well, and you have pollution, you have other things. What I'm always intrigued by our cities where they say, you have to look quaint.
J. Aughenbaugh: Yes.
N. Rodgers: If you're going to be our downtown. Your business has to look a certain way because we're trying to create a feel of a certain city. I don't know if anybody's ever been on a train going through Ashland, but Ashland looks very, I don't want to say old-timey, that's not what I'm trying to get at, but it is a quaint villagy-looking. There is no Walmart in downtown Ashland and there never will be because it's a physically attractive downtown and they've tried to keep it that way. They've tried to make it very.
J. Aughenbaugh: Some of the more noteworthy debates about zoning follow the example you just gave about Walmart. Communities pushing back against big box stores, moving into their communities. Because that would hurt the, if you will, the overall aesthetic of the community.
N. Rodgers: Hurts the Mom and Pops.
J. Aughenbaugh: Yeah. It hurts the Mom and Pops.
N. Rodgers: Sorry, Mom and Pops stores, meaning stores that are owned locally and have relatively small employee numbers and that sort of thing.
J. Aughenbaugh: Okay. Then you've got environmental concerns. One of the criticisms of zoning in the 1950s and '60s in the United States is, there was this creation of low density residential areas where your property had to be nearly a quarter of an acre and it had to be setback from roads and it had to be in the suburbs. Well, that's great if you want the postcard American dream of, hey, I get to own my first house in this great small suburban community.
N. Rodgers: But it causes urban sprawl.
J. Aughenbaugh: Yeah. That led to a whole bunch of Americans working in one community, but then driving home to another which leads to air pollution, a reliance on fossil fuels, etc.
N. Rodgers: Unfortunately, also segregation leads to moral and ethical quandaries that we don't want to have segregating out and ordinances were used to red line. Ordinances were used to prevent people from living in certain neighborhoods, much to the detriment of the neighborhoods and of folks. We now know, looking back on that, it's a terrible idea to red line because what you need in any community is a mix. You need to make some folks with backgrounds with different financial abilities because then you have different tax levels. If you have all the rich people in one spot and all the poor people in another spot. All the poor people's stuff is not as financially sound.
J. Aughenbaugh: It can be aspirational. You move into community with a mix and you see somebody doing well and they're investing into their home and their property, you might want to do the same. You want residential areas that are close to commercial areas because you want people to go and not always cook every single meal. Take your kids to do fun and exciting stuff, but if you've got to drive 20 minutes to do it, you now have an excuse to go ahead and say to your kid, sorry, we're staying home and I'm cooking you yet again, Sam and Patty's. I hope you enjoy that.
N. Rodgers: I'll never eat this ever. But how do we get a zoning ordinance? It looks like last night there was just a vote.
J. Aughenbaugh: In most states, there are either in the state constitution or state laws, specifically give local governments the authority to create and issue zoning ordinances. Most local governments usually end up creating a subcommittee of their local government structure. It's called a zoning board.
N. Rodgers: Got you. That's a subcommittee of stuff like a city council or
J. Aughenbaugh: Or in the case of Washington County, it's a unit of the county government.
N. Rodgers: Are they elected?
J. Aughenbaugh: In some cases, they are elected, in other cases, they're pointed. Again, that's another controversy.
N. Rodgers: Yeah. No kidding. Because appoint me and then I'm going to raise the town to the ground and start over or whatever.
J. Aughenbaugh: On the other hand, if you have elections, you could have people elected to the zoning board who knows nothing about zoning. That's the issue with school boards. In some communities, school boards are appointed positions. You hope that those who are getting appointed are quote and quote experts. But in other cases, they make really significant decisions affecting people and their children. So they should be representative of the people and their children, so let's have elections. But that doesn't guarantee that people are going to get elected to school boards, that like schools, like kids, they're even remotely interested in.
N. Rodgers: In education. You do run the risk with a zoning board, that it could be really good, but it also could be really bad.
J. Aughenbaugh: Really, really bad. The way it usually happens is zoning boards take the first cut at the overall ordinance plan for the community, but also specifically changes to the zoning ordinance. They'll take a vote, and it's not binding, but it's a recommendation. You saw this, Nia, in Washington County. The zoning board first took a vote and the vote on the zoning board was 42 in favor of the ordinance change that would ban abortion clinics in the county. Now, could the county board of supervisors vote it differently than the zoning board? Yes. The government structure that has the authority is the county board of supervisors in Washington County.
N. Rodgers: Got you.
J. Aughenbaugh: But as you pointed out, that's not the end of the issue. If I had to venture a guess, Nia, what we're going to see is either the clinic in Bristol or an interest group representing a woman or women in Washington County filing a suit in Virginia State Court asking for the court to declare this new zoning ordinance in violation of state law, yes.
N. Rodgers: Could the clinic ask for what they call a grandfather in?
J. Aughenbaugh: Yes.
N. Rodgers: Could the clinic say, going forward, there can't be anymore? But we were here before you made this ordinance and we deserve, because doesn't that happen with some businesses sometimes or some zoning sometimes? They still say this is going to be residential and there's a tiny little store there that's like my store has been here since 18 [inaudible], and I don't want to move, I want a clause that allows me to stay. Is that a potential do you think in this case?
J. Aughenbaugh: Yeah, they could go ahead and argue that, and listeners, what Nia is referring to is a grandfather clause. Basically saying that for a period of time in a community's zoning ordinance, this property could be used a certain way. Yes, there has been a recent change, but we made decisions based on the previous version of the zoning ordinance. Therefore we should [inaudible] .
N. Rodgers: Let's say that you're in the Fan in Richmond. Sorry for listeners who don't live in Richmond, the Fan is just a district in Richmond, and there's a restaurant. The district decides that it's only going to be purely residential. That restaurant could ask for a grandfather or a legacy clause to say, we want to stay in business because we've always been here, people know our location, they come here to eat, we have a large clientele, and so long as that business is open, then they get to stay.
J. Aughenbaugh: That means the property can be used for a commercial purpose.
N. Rodgers: But if they close that restaurant, they couldn't sell it as a restaurant because, at that point, it would have to revert to residential.
J. Aughenbaugh: That is correct, yes.
N. Rodgers: Your legacy clause only works so long as that business is open or that person is alive or whatever the extenuating circumstance is because otherwise, you'd have exceptions all over the zone.
J. Aughenbaugh: Yes.
N. Rodgers: What they're eventually trying to do is get the zone to be consistent.
J. Aughenbaugh: Yes.
N. Rodgers: That restaurant goes under then they say, oh, well, you have to sell the property to a real estate developer who's going to develop it into a residential property?
J. Aughenbaugh: That's correct. Now, the other thing that could happen, and by the way, I don t think the abortion clinic in Bristol, Virginia will be successful. The clinic could go ahead and ask for a variance, they could go ahead and say, I know that this area of Bristol, Virginia does not allow these types of businesses, but we would like an exception of variance. Now, they could ask for it.
N. Rodgers: But the entire point of this was to be rid of them?
J. Aughenbaugh: Yes.
N. Rodgers: One of the people who voted in this said that they do not want to enable abortion tourism, which I thought was a rather odd way to look at the concept of abortion. I don't know that tourism is anything that I would use to tie to that. But I can understand from the city's point of view, they don't this, they don't want an abortion clinic in the city or in the county.
J. Aughenbaugh: Well, I mean, and for listeners who don't know the geography of Bristol, Virginia. Bristol, Virginia is closer to the state capitals in Tennessee and Kentucky than it is to the state capital of Virginia.
N. Rodgers: What is blue in Virginia it is not in Southwest Virginia, there is no blue there, it is all red, it is all very conservative.
J. Aughenbaugh: Tennessee had an abortion trigger law, which we previously discussed. I don't know if Kentucky does, but Kentucky has attempted to pass laws to restrict abortion.
N. Rodgers: Very conservative.
J. Aughenbaugh: What I think some of the town council members, and for that matter, county board of supervisors in Washington County were concerned about is you would have women from the states of Kentucky and Tennessee.
N. Rodgers: Coming to Bristol. Got you.
J. Aughenbaugh: Bristol, to have abortions. Thus the title, abortion tourism.
N. Rodgers: Oh, I see. The other way that you could portray that is to say, women in Tennessee and Kentucky being denied medical care can get it in Virginia.
J. Aughenbaugh: That's right.
N. Rodgers: That's what the other side of that debate would say is that's great, we're championing health care and reproductive care for women everywhere.
J. Aughenbaugh: That's right.
N. Rodgers: I don't imagine this discussion is over.
J. Aughenbaugh: No.
N. Rodgers: But, what I'm curious about is what are the advantages versus the disadvantages of zoning in this way? Do you think that it keeps towns consistent or?
J. Aughenbaugh: The classic defense of zoning is that when zoning is done properly, Nia, it allows communities, cities, towns, to grow in a sustainable manner for future generations because you make conscious choices as to where people are going to live, people are going to work, where transportation hubs like airports are going to be. You can go ahead and manage the environmental costs of growing as a community. That's the idea. Public health and safety. To give you an example, there wasn't a lot of zoning in New York City, in the 1700,1800s, and for that matter, well into the 1900s. You had people living on top of one another, and you had poor health conditions, poor water quality, etc. Anytime a virus broke out, it would just basically wipe out an entire apartment complex simply because poor zoning. You're not managing this. Zoning really does reflect, Nia, that enlightenment era of thinking that we as human beings have the mental faculties to manage our environment.
N. Rodgers: To organize ourselves.
J. Aughenbaugh: Yeah, organize yourselves.
N. Rodgers: In some good for everybody way.
J. Aughenbaugh: Yes. It's very much about the collective. But, of course, there are disadvantages to zoning.
N. Rodgers: Civil liberty.
J. Aughenbaugh: You have civil liberties. What do you mean I can't do with my property what I want?
N. Rodgers: Why the heck am I a property owner if I can't control my property?
J. Aughenbaugh: You separate people in major life functions geographically. We've got people who live in this part, they go to work someplace else, they shop someplace else.
N. Rodgers: Although modern city planners are doing a lot of mixed-use?
J. Aughenbaugh: Sure they are.
N. Rodgers: You live above, and then there's retail in the bottom two or three floors. They're trying to do better about not separating those as much.
J. Aughenbaugh: Intergrated, workable neighborhoods with less rigid zoning ordinances. By the way, listeners, Nia and I haven't talked about one of the biggest criticisms of zoning, which is the housing crisis that exists throughout the United States.
N. Rodgers: Can we just talk about low density housing? That's a problem in the United States, we don't have enough affordable housing in decent places to live because you want a combination?
J. Aughenbaugh: Yes.
N. Rodgers: Because we have a huge number of zoning laws that are single residents zoning. A house is built for a family and that could be, three or four or eight people. But it's not 40 people and it's not multiple families and it's not.
J. Aughenbaugh: Lots had to be of a certain size. You saw the rise of this, this idea of low density residential zoning regulations after World War II, into the 1950s, into the 1960s. It's created a huge housing crisis throughout the country, and it cuts across socioeconomic status. Nia, your comments just a few moments ago. If you're a poor person in many urban areas, good luck finding decent housing, TV or rent, let alone purchase. Just a rent, because there's such high demand, the cost for rent or if you want to buy, just beyond any working class, lower middle-class can even afford, let alone poor people.
N. Rodgers: I think the word you're looking for his astronomical. Some of the prices in some cities. Richmond, pretty pricey but we are nothing compared to trying to live in New York City, LA, San Francisco, Dallas, Austin. All of those places are expensive and we can't even get into London and Singapore. But I mean, because that's a whole separate. Well, Singapore doesn't have any space. That's part of their problem. But I mean, those laws that have suggested that we only have single-family housing instead of multiple family housing.
J. Aughenbaugh: This is one of those rare areas of policy debate where you have both liberals and conservatives who agree that these low density residential zoning regulations are just terrible.
N. Rodgers: Oh, can I guess why? I'm sorry. On the left side, on the lateral side. But more housing, better housing for people of all socioeconomic statuses and density promotes getting to know people and getting to be neighborly and that thing. On the, right side or the conservative side, it 's a commercial question. If you allow me to have a four family home. Where four families can rent in a building, then I get four times the income that I would get from that same size building with one-family renting or twice the income, at least. Like it's a money thing. If we have density, but we have good density, then also those people can work in the neighborhood or work close. It encourages workers, it encourages employment. That's, that's cool. I can see where it would be a bi-partisan.
J. Aughenbaugh: Oh, sure.
N. Rodgers: Thing.
J. Aughenbaugh: But again, zoning is done at the local level.
N. Rodgers: You have a lot of what I mentioned before, if not in my backyard.
J. Aughenbaugh: Oh my goodness.
N. Rodgers: It's really great if you want a zone that like to neighborhoods over, but I don't want it in my neighborhood. I want my neighborhood to be the 1950s Idyllic Disney movie. No, actually, Leave It to Beaver.
J. Aughenbaugh: Leave It to Beaver.
N. Rodgers: I am not that neighborhood I am like, that and then neighborhood never existed. But it is interesting. What's the bottom line?
J. Aughenbaugh: Well, I mean, the bottom line.
N. Rodgers: Or should we do away with all zoning laws?
J. Aughenbaugh: No.
N. Rodgers: Wild west no more sending laws go for whatever you want, wherever you want.
J. Aughenbaugh: No.
N. Rodgers: Come on Aughie, go for it, just say it.
J. Aughenbaugh: No in listeners. you've probably figured this out over the years that we've been recording. I'm not always a huge advocate of government being the answer to every problem in society. But we need to make some changes to zoning, but we need to keep zoning.
N. Rodgers: Aughie and I once again fall into the medium government category.
J. Aughenbaugh: Yes.
N. Rodgers: We want neither big government nor no government. We want medium government.
J. Aughenbaugh: Yeah, we want medium government. In part, it's because there are collective concerns that zoning can address and address well. Again, I am an individualist. Everybody who knows me knows. I'm always very skeptical of any large group that wants me to be a member. But the collective has concerns, and I can go ahead and say this without being critical of this type of business. I want my daughter to be able to go to a school where there is no porn shop across the street.
N. Rodgers: You just don't want to have to answer those questions.
J. Aughenbaugh: Well, there is that, but I'm not entirely sure that 10-year-old should be perusing. Pornographic literature after school.
N. Rodgers: In fairness to those shops, they do not allow minors in the shop.
J. Aughenbaugh: That's true.
N. Rodgers: They will say to your 10-year-old get out of here what are you doing?
J. Aughenbaugh: Yes.
N. Rodgers: Actually, they'll probably say, where's your parents?
J. Aughenbaugh: But again, there are collective concerns.
N. Rodgers: Correct.
J. Aughenbaugh: I want communities to grow again, but I want them to grow responsibly. If you're going to go ahead and build a whole bunch of housing, it's going to require water lines to be laid, electrical grid and conduits to be laid.
N. Rodgers: Infrastructure is not cheap, somebody has to pay for that to start with and you're going to need the tax base to continue to maintain it.
J. Aughenbaugh: That's right. Again we're seeing this with communities that were built in the '40s, '50s and '60s. Now their pipes need to be replaced, their electrical lines and grid.
N. Rodgers: Are falling apart.
J. Aughenbaugh: Well, falling apart and we might want to go ahead and put them underground instead of above ground.
N. Rodgers: Turns out we can learn.
J. Aughenbaugh: We can learn. We have environmental concerns. Zoning here is needed. But at the same time I'm also aware that the courts, both state and federal, tend to defer to local governments in regards to what is a public use and what is it taking and what is just compensation. I'm a little concerned that whether you're talking about Bristol, Virginia.
N. Rodgers: Or some other city. That can get you a [inaudible] really
J. Aughenbaugh: Really fast and that concerns me.
N. Rodgers: Can I tell you my concern?
J. Aughenbaugh: What's that?
N. Rodgers: About this particular incident.
J. Aughenbaugh: What's that?
N. Rodgers: One, it is legal in Virginia to have an abortion.
J. Aughenbaugh: Sure it is.
N. Rodgers: Denying people the right to do that, I feel like that's their strongest argument against being forced out. But also I don't like the idea of any business that's established being told it has to pack up and go, because people in the city have decided that now the morals have changed or now their ethics have changed. Let's use your example of a pawn shop in Richmond. If a pawn shop was built in Richmond next to a school 50 years ago and then they change the zoning law, that person zoned that business expecting that location. You would need to compensate them fairly. If Bristol wants to do this and wants to shut down this clinic, then they need to figure out what just and fair compensation is for that. I don t know that there is any, because that's future peoples physical health. I don't like that whole. I'm going to switch this once it's in place and not give any legacy clause. Like if they said and in 30 years you have to shut down that clinic.
J. Aughenbaugh: Or Nia.
N. Rodgers: Or whatever.
J. Aughenbaugh: The example that always comes to my mind is the Supreme Court case of Kelo versus New London Connecticut from 2005, where a narrow majority of the Supreme Court said that New London, Connecticut could take Kelo and a few other homes for public use. Then they turned it over to a pharmaceutical company who had promised to go ahead and build a huge campus in New London Connecticut. By the way, by all accounts, these private homes were well maintained, they were not blighted. It wasn't like, these were people who weren't paying their property taxes, they were. These were homes that in some cases, were in the families generations for years. It was an area that had been zoned residential for decades and that community was chasing tax dollars. They wanted to turn it over as part of an economic development plan to another private, if you will, entity.
N. Rodgers: That's wrong at every level.
J. Aughenbaugh: It's wrong on so many levels. Then the pharmaceutical company decided not to go ahead and build the campus.
N. Rodgers: We've had a financial downturn and we can't do that.
J. Aughenbaugh: Or we crunched the numbers and this other community was better. Really? That's what railroads used to do to communities in the mid to late 1800s.
N. Rodgers: It's what some box stores do now.
J. Aughenbaugh: That's right. You don't give us the tax incentives, you don't give us the property for free? Well, we're going to go to a different state, a different community.
N. Rodgers: I would say to them, okay box store, don't let the door hit your butt on the way out.
J. Aughenbaugh: Yes.
N. Rodgers: But zoning boards are trying to balance tax revenue and how do they manage all that. To end on a relatively reasonable note, nobody here is trying to be evil. People here are following their moral and ethical.
J. Aughenbaugh: Sure.
N. Rodgers: Inner self.
J. Aughenbaugh: Yes.
N. Rodgers: It's just that this is a really complicated question. There are plenty of good guys and bad guys in the world, but what everybody here is trying to do is do the best that they know how to do. I would say to the Zoning Board, I don t think you got it right. I disagree, but I don't disagree based on the ethical so much as I disagree on that's an established business and I don't think you should have the right to come in after and say, I don't like it, because that seems whimsical to me and my business interests. If I owned a business working, if it was a bakery and you just decided you're against bread. You know what I mean? Like that's not
J. Aughenbaugh: Or you're against bakeries because they tend to go ahead and contribute to Americans poor diets and w\e don't need more fat people in our community. We're getting rid of bakeries, doughnut shops, etc. You're basically going ahead and telling a whole bunch of people, how dare you want to go ahead and have some baked goods with your tea and coffee in the morning.
N. Rodgers: You're regulating other people's ethical and moral behavior. It's a dangerous slope to step on.
J. Aughenbaugh: That's right. Again, listeners Nia and I are usually very skeptical of slippery slope arguments because all manner of predicted evil and bad, usually are at the bottom of slippery slope arguments. The sky is falling. Yeah. It might, but it won't be because somebody went ahead and had two doughnuts with a cup of coffee, once in the last three months. If you start regulating that stuff with your zoning ordinances, where does it stop?
N. Rodgers: Exactly. Now that we've taken care of abortion, let's take care of sugary drinks. Let's take care of all manner of things that we find offensive.
J. Aughenbaugh: Yes.
N. Rodgers: You have to be super careful about that.
J. Aughenbaugh: Yes.
N. Rodgers: Anyway, Bristol we'll check in with you again because we feel certain that there will be lawsuits involved.
J. Aughenbaugh: I would be shocked if there wasn't.
N. Rodgers: I wouldn't be surprised if one hasn't already started. Somebody talking to a lawyer right now.
J. Aughenbaugh: I think that the clinic started talking to lawyers late last Fall.
N. Rodgers: In October when it started first came up with the zoning board. That would make sense. Get it ready to go, because it's going to be a fight.
J. Aughenbaugh: Yeah.
N. Rodgers: Well, thank you, Aughie.
J. Aughenbaugh: Well, thank you Nia.
N. Rodgers: We'll talk again soon.
J. Aughenbaugh: Sure we'll.
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