Identity Zoning Part II 
By Martin Harris

It’s the contemporary preference, in blue-state politics, to denigrate (are we allowed to use that verb any more?) the equality-of-treatment-under-law notion of the Founding Fathers. Instead, the Left embraces the notion that (in the words of Supreme-Court-Justrix-in-Waiting Sonya Sotomayor) "Personal experiences affect the facts that judges choose to see". You can read this and similar quotes in the 22 June issue of National Review. The outcome-intent is to legitimize the idea of producing different legal results for different identity groups, so as to thereby attract the grateful votes of the favored among those groups, while dismissing the probable negative reaction of those groups selected to be dis-favored. In blue states like Vermont, the same sort of identity-group discrimination extends to permit applicants, the equally germane but not-as-famous quote coming from Assistant Attorney-General Julie Brill. She offered this legal advice to the Randolph Zoning Board a few years back: …"in cases like these, the [actual, printed] zoning regulations are really quite irrelevant…" referring to a private-sector builder’s permit application to build rental housing near her own house. Even though his proposal complied with all the applicable regulations, the zoners burdened him with ever-new conditions, some of them demands for actual Code violations, until he ultimately gave up and went away. Rather than have an outright permit denial visible on their record, the Randolph zoners chose the conditional-use demand strategy, until the would-be grass-killer finally withdrew his application. It’s the formula, originally invented for Act 250 reviews a couple of decades ago, for a widely successful no-paper-trail-of-denial policy which has been used, for example, in places like Middlebury.

From the Progressive point of view, the notion that zoners can "choose to see" some facts and not others, depending on the political identity of the permit applicant, is the basis for them to use their self-declared superior judgment in encouraging some applicants and discouraging others. Thus, in Middlebury some years back, it was "expert judgment" that the village "didn’t need another supermarket", thereby elevating zoner economic judgment (or pre-judgment –prejudice--) over the enabling of marketplace competition. In Vermont, the underlying State zoning statutes specifically forbid such economic-protection decision-making, but those statutes derive from a now-deemed-irrelevant earlier European-white-guys tradition of equal-treatment-under-law. The new practice, codified under the ever-widening umbrella of conditional-use permitting, enables zoners to generate additional requirements at will, or not, depending on whether their desire is to issue the permit or discourage the applicant. Thus, a subsidized-housing applicant is defined as part of a favored identity-group, while a chain-store office supply retailer is dissuaded, in part to prevent competition against an existing purveyor.

The "superior judgment" belief traces back to the 19th century LaFollette Progressives and "the Wisconsin Idea" that the State is the University’s campus, where the more bright have the burden to teach, lead, and of course govern the less bright. More recently, this self-elevating belief showed up on the Duke University campus, where in 2004 professor Robert Brandon offered this now-famous explanatory syllogism: a . academics are smarter than average;  b. conservatives are dumber than average;  c. therefore, more academics are liberals. Beyond the halls of ivy, it’s described in such books as Thomas Sowell’s Vision of the Anointed: "…problems exist only because other people are not as wise and caring, or not as imaginative and bold, as the anointed…" and in the zoners’ new-found preference for choosing to see some facts and not others, to create conditional requirements in some cases and not others, as part of  empathy-based identity zoning.

Thus, in Vermont, negative zoner empathy is typically proffered to private-sector builders in general and corporate entrepreneurs in particular, while positive empathy radiates to government, non-governmental advocacy groups, and environmental advocates. It’s a predictable behavior of people who enjoy being involved in the dispensing end of governmental regulation, to regulate in ways which please their majority anti-business, anti-capital-investment, predominantly no-growth constituent support groups. The zoners expect to receive their gratitude in terms of on-going political support, the most basic form of the electoral quid pro quo calculus.

As a non-academic, I can’t match the skill in syllogism-construction of Duke Philosophy Department Chairman  --oops, make that chairperson--  Brandon, but I can offer the following: a. the clear voting majority in Vermont embraces an anti-growth posture; b. zoners (who enjoy their local little powers) are appointed by elected officials; therefore, c. zoners "choose to see facts" ( a little Sotomayer lingo, there) which can justify an unspoken policy of discouraging applicants of the private-sector identity group.  It’s what happens when governing and regulating by-the-book become politically unfashionable.

Martin Harris is a former Chairman of Citizens for Property Rights