It’s time to admit it: like just about everyone else in New York City, I’m a criminal, but my life of crime may be coming to an end. My particular crime: allowing the kids’ dog off leash in Prospect Park, during the designated hours listed on the park’s website. How is that a crime? It is a crime because New York City has an ordinance on the books that says at all times, and in all places, all dogs must be on a leash no less than 6 feet long when in public. No exceptions. No exclusions.
When off leash hours were established, the city didn’t bother to change that ordinance. It decided instead to not enforce the ordinance during certain hours. It decided, in effect, to make me a guilty criminal, but to let me get away with it. Now some folks out in Queens who don’t like off leash hours have filed a lawsuit. It’s goal? To force the city to enforce its own laws, and ticket those who allow their dogs to be off leash. Who could argue with that? I will argue against the city’s original decision to avoid changing the ordinance, and as part of general principle of law and ethics rather than as a specific canine case. This is a long post, but if you are interested but that bothers you, you can copy it, paste it, and print it out.
The off leash case is part of an overall tendency in New York to have lots of rules on the books that are not enforced, that are seldom enforced, or that are only enforced against certain people. To give another example, it is illegal, at all times and in all places, to double park. But if you double park during alternate side of the street, leave a note in the window where you can be reached in case someone needs to get out, and move your car back immediately after alternate side expires, you generally are not going to get a ticket. There is an understood “rule of reason” about what the de facto rules actually are.
So why not just change the rule to what seems to be reasonable? The city could change the leash ordinance to prohibit dogs from being off leash except in designated areas, at designated times, and under designated conditions set by the Parks Department. And it could change the double parking ordinance to ban it except during alternate side of the street, and provided that the car owner is prepared to arrive within three minutes and move the car if summoned.
There are two possible good reasons, which I don’t agree with, and one bad one, which concerns me, to allow illegal behavior, rather than making it legal.
The first is that trying to change a rule will bring out all the angry, cranky people with an enormous sense of entitlement that dominate any and all public hearings. Who needs that? The political goal is to be popular, not to be fair and reasonable. The City Council, in particular, likes to have it both ways. It can pass restrictions on people to satisfy the cranky, and then blast the Mayor and NYPD for being oppressive if they try to enforce the rules. Remember Giuliani’s crack down on jaywalking? Squeegymen OK, you can crack down on them, but not people like us. “One City One Standard” lasted all of three months. No one ever suggested modifying the ordinance that prohibits jaywalking.
The second reason to allow illegal behavior is that people in our society have so many legal “rights,” have so few responsibilities, and are so willing to impinge on the rights of others, that only a black and white ordinance can be enforced. So that is what we have.
Say that under current rules, during off leash time a dog owner allowed their dog to jump up and knock over little children, and when mother complained, sneered at her to keep her little brats out of the park. A nearby police officer could simply give that asshole dog owner a ticket for having a dog off leash. It would be an open and shut, black and white case — even thought he officer had ignored all the non-asshole dog owners nearby. What if the city changed the rule, and allowed dogs to be off leash as long as they were “under control” and did not “present a hazard?” That same asshole dog owner would probably give the cop a dressing down for harassing him when his dog was in fact under control and did not present a hazard. And his lawyer would sue the city for that harassment. After all, “under control” and “presenting a hazard” are subjective.
Same thing with alternative side of the street. Under current rules, if someone were to park you in every day, and then saunter out to move the car a half hour later, you could complain to the police, who might come by and issue a ticket for double parking. But if double parking were legal under certain circumstances, anyone who was enough of a jerk to park you in would also be enough of a jerk to argue about, and perhaps litigate, those circumstances.
When I was in graduate school in the early 1980s I was flat broke and found the thought of adding to my student loan burden abhorrent. I figured out a way to get through a two-year Master of City Planning program at Rutgers on summer earnings, a teaching assistantship, and a scholarship. It required me to take a course (in public finance, in case you were wondering) at NYU the summer before enrolling, take additional courses during my semesters at Rutgers, do an independent study and internship while working the following summer – and finish in three semesters rather than four. My rapid advance through the curriculum was evidently a big topic of conversation among the faculty, which subsequently imposed the “Littlefield Rules” making it illegal.
This designation bothered me, so I asked the chairman of the department about it. Was there a problem with what I had done? Hadn’t I learned everything required for that particular degree? His response was that everything I had done was fine, but (without mentioning names) someone else could use some of the same methods to beat the system. “Administratively,” he told me, “it is easier to allow someone to do something as an exception, than it is to prevent someone else who is out to beat the system from exploiting a loophole in the rules.”
Maybe.
But this presumes a lot of goodwill from those I a position to decide whether, and under what circumstances, to enforce the rules. It doesn’t just vest them with power. It gives them arbitrary power. And arbitrary power can be abused.
Consider the ordinance that I am most familiar with – the New York City zoning ordinance. When it was designed in the early 1960s, its drafters were concerned about competing with shopping centers, whose owners carefully designated which kind of store and service was permitted in each area of the development. The framers of the 1961 zoning ordinance tried to do the same thing using regulations, mapping different zoning districts that permit different types of businesses block by block along local main streets (NYC has around 400 of these). The framers had initially intended to permit a wide range of home occupations, provided they didn’t’ create noticeable noise or odors. But those in the suburbanizing, politically powerful areas of places like Queens associated home occupations with less affluent people, and when the ordinance was actually enacted most of were banned.
Thirty years later, it was obvious that these rules make no sense. I was the project director of a (never completed) effort to fix them. I found that a minimum of 15,000 small businesses were “in the wrong place” in commercial areas, and that people in prohibited home occupations were no less likely to work at home than those in those in occupations specifically allowed. Enforcement is rare, in response to complaints, and always for the wrong reasons. Businesses are closed because someone from the “wrong” racial or ethnic group has opened in the “wrong” neighborhood. Because someone wants a competitor out of business. Because rents have risen, and a landlord’s lawyer uses zoning as a way to get out of a lease. Because two people are going through a nasty divorce. Since I had become the use regulation expert, calls about those rules were referred to me. To protect myself from being sued later, I had to tell them what I had been told to tell them – if you want to open a business in New York City get a lawyer. Even though I knew lots of businesses in the same general category were operating in the same type of area without bothering anyone. That bothered me.
One time, some Black guy came into City Planning to find out why he was not being allowed to open his store. He wanted to open a fried chicken place on Ralph Avenue in Brooklyn, and had been issued a zoning violation by the Buildings Department. Ralph Avenue is lined with stores and zoned for businesses like chicken restaurants. Except for one block, his block, that was zoned residential. What was on that block? Stores, one of which he had rented. Still, it was a pre-existing building, so what was the problem, I wondered? I wondered even though I had not only read all the rules, I had drafted a new version. Well it turns out there was something I had missed. Way in the back of the zoning book, in the section on commercial uses in pre-existing, grandfathered, non-residential buildings in residential districts, in a footnote, there is a provision that says that in such cases you cannot have takeout food. And the Department of Buildings had caught it.
The same Department of Buildings that did not notice that three blocks from my house a developer built a building that violated every zoning law in the book, and was completely different from the building on the plans that had been filed with that Buildings Department. Because along with the occasional enforcement of obsolete rules that should probably be repealed, New York is famous for the non-enforcement of rules that were put there, very specifically and for a good reason just a few years ago. Such as the R5B zone regulations designed for, and mapped in, Windsor Terrace in 1989, just a decade before that illegal (but now occupied) building was built.
Then there is Soho. It is a “manufacturing district” and, as such, excludes housing and certain types of commercial businesses. But in the 1960s, as manufacturing moved out, landlords rented to “artists” who occupied the “lofts’ as “live-work” spaces illegally. Since these were affluent, organized, white people, they were later legalized, but the veneer of a manufacturing district with special rules for “live work spaces” was preserved. Only artists “certified” as such by the city are, by law, allowed to live there, and since these are “live work” spaces, each artist’s loft has to be at lest 1,500 square feet. Only ground floor retail businesses that have gone through a long, drawn out process are allowed, and only as exceptions. In reality, however, is that no one enforces these laws. Virtually no one in Soho is an artist – the population of the area is vastly greater than the number of such artists. And few of the businesses have gotten their special permits.
Except that there is a hue, cry and lawsuit if anyone dares to try to create a housing unit with less than 1,500 square feet, allowing someone less affluent to live there, or to open a business that is not “upscale.” In certain suburbs, they might want to keep out those who are Black, but in Soho, they want to keep out those who are not hip enough wear Black.
In the early 1990s, I was volunteering as a tutor in the local elementary school. A met a fellow volunteer who had just moved to Brooklyn from Manhattan. He said that in his old apartment he was harassed all the time, people told him he wasn’t allowed to be there, and demanded payoffs to not turn him in. He didn’t know why. Eventually, he got fed up and moved. Where had he lived? Soho! And his job? He wrote children’s books.
Later, I was asked to help write up part of the city’s Consolidated Housing Plan for submission to HUD. One section of the plan was about zoning provisions that had the effect of reducing affordability and keeping out minorities. Such provisions, such as limiting development to large houses on large lots, are common in the suburbs. I wrote that New York City, with its generally liberal zoning rules, did not have any such provisions – except in Soho and Tribeca. My exasperated boss cut out the second part. Every year until I left City Planning, after deciding that all that was left of the zoning resolution and enforcement thereof was not the planning principles I had learned in graduate school, but race and class.
I could go on and on with examples like this, just from the zoning and related business fire and building codes.
And politics? What about the effect of arbitrary power on that?
My former boss at City Planning told me a story a builder who had immigrated from Czechoslovakia during communist times had told him. The bureaucrats there made it impossible to get a building permit – they would file objections and demand more information for 30 years. It was known that one just went ahead and built or fixed up their house without the paperwork, and no one would bother them. But let’s say someone protested against the regime? Then it would knock their house down for not having a building permit.
Do we have such laws? When I decided to run as a candidate for state assembly, thus violating the unwritten law against running against on incumbent, I received a sharply worded letter threatening me with massive fines if I posted flyers and posters on public property, including lampposts and signs. But what do we see at election time? Incumbents with posters on public property everywhere in the city. I couldn’t take the risk that I end up owing so much in fines that we lost our home, so I didn’t put up any. Might they have fined me for multiple violations per day for each poster I put up? Ask that guy O’Hara, who lost his license to practice law on a residency issue, the same issue in question for lots of candidates in Brooklyn even this year. There are lots of laws like that. I wouldn’t run for office if you know what’s good for you.
The bottom line is that seldom-enforced rules are a way to get around constitutional equality. They are a way for some people to matter more than others. And they are very popular with the political class, which adds to them each year.
Not to long ago the city enacted a very severe noise code. I had written the Mayor, saying his proposal had better have different rules for different types of places, but was ignored. No audible noise, anywhere, anytime. Anyone want to join me in a lawsuit to shut down that noisy Cyclone Roller Coaster?
A libertarian is a liberal who was mugged by a Co-op board.