A Nation of Laws
Although many residents seeking variances for home improvements are aware of laws meant to protect the property value of neighboring houses, many do not know of “laws” that retard the economic growth of small businesses.
Although the axiom, “that which is not permitted by law is prohibited by law”, might sound like the story line from The Twilght Zone, or extracted from a Kafka novel, it is actually the basis upon which many towns enforce their zoning policies. Fundamentally, it extends police powers to enforce laws never written. This all-powerful regulatory tool is being whittled down as in the NYS Supreme Court ruling concerning the animal rescue group Angels’ Gate; but, it continues to impact small businesses in many municipalities
It is difficult to research the existence of capricious law enforcement because the laws are not written down, so only the person who has broken the law is aware that their actions are prohibited. In Oakland, one example of the capricious nature of these unwritten laws can be seen in the prohibition of outdoor seating for commercial food establishments. For small businesses, the option of providing some additional seating outside can have significant impact on their profit margins. They can extend what may be a limited capacity inside, and also implement an attractive outside adornment that draws additional customers. Oakland does not permit this, and therefore it is prohibited. The Town Council will be seeking to introduce an ordinance to permit outdoor seating for the new multi-million dollar restaurant which recently opened and for the StarBucks planned in the Eden development. The ordinance will also address the pre-existing needs of small and independently owned business already established in town.
As the American economy struggles, the small businesses that employ the majority of workers are on the forefront of this struggle. Numerous residents voice concerns about too many banks, pizza places and nail salons, and express a desire for retail outlets that offer the town diversity and character. But The National Federation of Independent Business estimates that over the lifetime of a business, 39% are profitable, 30% break even, and 30% lose money, statistics which exemplify the risk entrepreneurs take with investing savings and time into the establishment of a small business which must abide by unwritten laws.
The defendants in the case which led to the NYS Supreme Court decision originally sought to compromise and address the specific concerns raised by the zoning board, but an unwillingness to negotiate led to the town’s legal defeat and an erosion of their overall authority. With a Federal government consumed with the globalization of the world economy, and a State government consumed with finding new sources of revenue to pay off a 33 billion dollar debt, small businesses need local support and clear communication.
The terms “arbitrary, capricious or unreasonable” have been invoked numerous times by courts seeking to enforce COAH mandates and overrule ordinances of individual municipalities. Judges routinely decide that actions taken to control sprawl and overdevelopment are founded on an arbitrary, capricious or unreasonable basis. The zoning laws based on the axiom “that which is not permitted by law is prohibited by law”, appears on the surface to give credence to this judicial perception of towns exercising police powers in an arbitrary manner. It also brings to mind another axiom, “as you sow so shall you reap”.