In the Robert Bolt play, A Man for All Seasons, St. Thomas More is chided for allowing an unsavory character to go unpunished because there is no law against the act in question. In response, More declares that he would give the devil the benefit of law, for his own safety's sake.
So what should you do when a devil moves in next door, aided by your community's zoning laws? The people of Deer Valley have been wrestling with that very question. A Castle Megastore has opened recently near several schools in the Deer Valley Unified School District, and local parents are understandably upset.
In the hope that the Castle Megastore might be found in violation of local zoning laws, Deer Valley residents appealed to the Board of Adjustment (BOA), a judiciary body appointed to interpret and rule on zoning disputes. In two separate hearings where two distinct regulations were reviewed, the BOA decided that the Castle Boutique was not in violation.
Having lost at the local level, Deer Valley residents appealed to Maricopa County Attorney Rick Romley for a reinterpretation of the laws and assistance in removing the store. The argument used was that the Castle Megastore is engaged in "obscene" activity, which state law prohibits within 2000 feet of a school. However, Romley's office determined that the adult store did not fit the definition of obscenity as determined by the law and U.S. Supreme Court precedent.
Some Deer Valley residents are now petitioning the state Attorney General's office to take up the case. Three important legal principles argue in favor of allowing the Castle Megastore to stay:
The rule of law:
One of the hallmarks of the rule of law in the Anglo-American legal tradition is found in the prohibition of ex post facto laws: people must not be punished for acts that were not against the law at the time the acts were committed. If this rule is violated, the law becomes unpredictable and arbitrary, opening the door to discrimination and abuse by the politically connected.
In this case, the residents of Deer Valley waited until after the Castle Megastore moved in to decide that adult stores should be prohibited from operating in their community. They were simply too late. In the future, residents will have to be active and vigilant participants in zoning hearings.
The framers of the U.S. and Arizona Constitutions recognized that the right to own and use property was essential to protecting individual interests and maintaining an orderly and prosperous society. When we begin to carve out arbitrary exceptions to the foundation of liberty, we compromise the entire construction built on top of it. For the right of property to be truly secure, it must be extended to the wholesome and the unsavory alike.
Communities are best suited to the creation of zoning laws. Phoenix's zoning laws, like those in other communities, are an incorporation of overbroad, unspecific state guidelines. It is the duty of cities and smaller jurisdictions to modify these guidelines (or create new ones) in order to serve the needs of their respective communities. State authority should only come into play when local ordinances violate state law.
If the state attorney general were to intervene in the Deer Valley case, the result would be to make cities and communities less responsible. After all, why should citizens be diligent in creating good zoning laws if they can always appeal to the state?
Although it would come as bad news to Deer Valley residents, the state should uphold the decisions of the BOA and the county. By upholding the rule of law, property rights, and local control, that decision would be in the long-run interest of Deer Valley residents and property owners across the state. If St. Thomas More was willing to give the devil the benefit of law, Deer Valley ought to be able to do the same for the Castle Megastore.
Of course, Deer Valley residents can still vote with their dollars. If no one buys from the store, its proprietor will either move or go out of business. Even the Devil would move on eventually.
--Satya Thallam is a senior economics student at ASU and an intern at the Goldwater Institute, a Phoenix-based free market think tank. The views expressed are those of the author.