Land Surveyors Are Paying the Price of Progress

(Bloomberg Opinion) -- SEQ CHAPTER \h \r 1If you decide to buy a house, part of the process likely involves a guy with a theodolite on a tripod heading out to the lot and mapping what the law calls the metes and bounds, just to be sure that what will soon be your fence isn’t encroaching on the neighbor’s property — or vice versa. If you’re borrowing money, the bank will require the survey. If you’re paying cash, you’ll probably want the survey for your own peace of mind.This is pretty much how things have been going for decades, and if state regulators have their way, it’s how things will stay. That, at least, is the message of a peculiar case from Mississippi, where a startup called Vizaline LLC has gotten itself in trouble with state regulators.What wrong has the company done? Suppose a bank is considering whether to make a loan on a particular property, but the value of the property is too small to justify the expense of a land survey. Enter Vizaline. For a fee that averages one-tenth the price of hiring a professional surveyor, the startup will use publicly available information to show the metes and bounds by means of a figure (a “polygon,” the company says) superimposed on a satellite map. (A typical report is here.) That’s it; Vizaline draws lines on a map, usually at the behest of community banks and other small institutions.The Mississippi Board of Licensure for Professional Engineers and Surveyors says this is the same as land surveying, and in October of last year it sued the company for surveying without a license. Among other forms of relief, the board wants Vizaline to return all the money it’s received for its services. Earlier this month, Vizaline countersued, claiming a violation of its rights under the First Amendment. The board’s action, says the complaint, “will silence Vizaline’s constitutionally protected speech.”Well, I’ll leave it to others to ventilate the free speech issues. Let’s note, instead, the ludicrousness of the board’s position. Suppose that you work at a small bank and you’re moderately tech-savvy. Somebody from the loan department pops in and asks you if there’s a way to use the deed to draw the property lines on a Google map of the area. You say sure, you burn a little midnight oil, and the next morning you hand over your report. It’s hard to believe that you’d have broken state law.The only difference is that Vizaline says to the bank, “If you’d rather not develop the expertise in-house, we have it already.” That’s how a division of labor is supposed to work. What we see here is another example of how state licensure requirements can actually make people worse off. By all accounts, Vizaline’s clients are happy with the services the startup provides. The only people who are unhappy seem to be the regulators. And — unsurprisingly — the regulator in this question, the aforementioned Mississippi Board of Licensure for Professional Engineers and Surveyors, is made up largely of professional engineers and surveyors.The pattern is a familiar one. Regulators have tried to stop Uber, Airbnb and a host of lesser-known startups, even when those who use them sing their praises. Over time, the market tends to win. To take a single example, Key West was long famous — well, infamous — for barring ride-sharing services, in a transparent effort to prop up a frankly dreadful local taxi industry. Last year, because of a new Florida law preempting local bans, both Uber and Lyft were suddenly available.I’m not suggesting that all regulators have been entirely captured by their client industries; I’m not suggesting that no tech startups need close supervision. But the Vizaline case seems a pretty clear example of overreach. The clients are sophisticated, and they’re not complaining. Only competitors want the company shut down.The courts may be edging toward reining in such regulatory highhandedness. Consider Southeastern Reprographics v. Bureau of Professional and Occupational Affairs, a 2016 case from Pennsylvania. A rural electricity cooperative with assets scattered over 100 square miles hired a contractor to locate all of its assets, including “transmission poles, distribution poles, security and street light poles, pad-mounted equipment, regulators and meters.” The contractor went out into the field, used GPS to find and tag the assets, and prepared a map for the client. This was too much for state regulators, who charged the contractor with performing an “engineering land survey” without a license. But when the issue was litigated, the contractor won. To be sure, the case was decided as a matter of tight statutory construction. Still, the court plainly saw the problem in the proper terms. To demonstrate the absurdity of the board’s claim, the court pointed out that the use of GPS to locate and map the cooperative’s assets was no more a land survey than the use of a GPS device by a taxi driver to find them.Exactly. The tools are here and they’re going to be used. I do have sympathy for engineers and surveyors who will lose income and perhaps careers, just as I have sympathy for taxi drivers, travel agents and factory workers. But the tech wave isn’t really stoppable.In the particular case of land surveying, I suspect that progress will be fairly rapid — and painful. I don’t know whether Vizaline will win its case, but I can confidently predict that the market for surveyors will eventually be disrupted. The major disruption will come when the big banks move. When those who finance big projects and big houses decide that a report that relies on GPS mapping is sufficient to mark the metes and bounds of a property, the rising tide of demand will swamp local regulatory resistance.Progress often isn’t fun, but that’s how it works.To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.netThis column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his nonfiction includes “Civility.”©2018 Bloomberg L.P.-->

Land Surveyors Are Paying the Price of Progress

Land Surveyors Are Paying the Price of Progress

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Land Surveyors Are Paying the Price of Progress