Tuesday, March 15, 2011

Eminent Domain: Boxing Gym for Kids Fights Back



Video above is from the Institute for Justice with this background:

"A San Diego-area boxing gym that serves at-risk kids is showing what it takes to fight for what is right and to win. The Community Youth Athletic Center (CYAC) has had to endure a series of low blows by National City's local government in a case that time and again demonstrated how difficult it is for California property owners to defend themselves against tax-hungry governments and land-hungry developers bent on eminent domain for private gain."

Related article in Sports Illustrated:

"Carlos Barragan and his son Carlos Jr. don't torture dogs, don't inject 'roids and don't bet on sporting events they ref. They've never run from the law or the tax man or a grand jury. What they do run is a little boxing gym for kids in National City, Calif., between the Mexican border and the San Diego barrios.

So why is the city trying to shut them down?  Luxury condos, that's why."

51 Comments:

At 3/15/2011 3:49 PM, Blogger Benjamin said...

Property rights?

Try building a skyrise condo on your own land in Newport Beach, CA. Har-har--you have to get the city council to approve it, but only after a citywide popular vote.

Anyway, I don't want to hear jackbananas about property rights--at least until after the Spanish Crown usurped all this land from the Native Americans.

I will scrupulously honor all property right that occurred after we stole the land.

 
At 3/15/2011 4:30 PM, Blogger juandos said...

"I will scrupulously honor all property right that occurred after we stole the land"...

Ha! ha! pseudo benny applauds for the losers...

I wonder if there's going to be some weaselly way to sneak a KELO V. NEW LONDON method of snatching that property?

 
At 3/15/2011 5:03 PM, Blogger morganovich said...

juandos-

the "blight" rationale is even nastier than kelo in some ways.

you just declare "blight" and that's that. the state is allowed to take the property (and at "blight" prices") and do with it as it wishes.

this one sounds more like didden.

http://ownerscounsel.blogspot.com/2010/04/ny-judge-orders-port-chester-to-pay-3.html

 
At 3/15/2011 5:07 PM, Blogger morganovich said...

benji-

you are confusing property rights and zoning law.

not being able to build a fireworks factory next to a nursery school is hardly the same thing as being forced to give up your land.

you also ignore than zoning law is just a different kind of property right: that of your neighbors.

i, for one, view the inability of my neighbors to build and operate a hog rendering plant to be part of MY property rights and am happy to pay more for a house in a neighborhood with such zoning in much the same way that i think everyone giving up the ability to commit murder actually increases my liberty.

i'd ask which part of "public nuisance" you fail to understand but, well....

 
At 3/15/2011 5:22 PM, Blogger Benjamin said...

Morgan-

I accept your comment. But, downzoning can be even worse than confiscation.

If under color of law I take your land, but pay you for it, that may be wrong. At least you get something, adjudicated in court as market value.

If I downzone your land after you bought it (usually the case in CA coastal cities) I don't even recompense you at all.

Houston does without zoning laws.

Morgan--Your comments are typical of the R-Party establishment. Everyone is libertarian and for free enterprise except for....no factories in my neighborhood, no apartments, let's regulate this and that, no pot-smoking, let's close bars at 2 am, let's have an FDIC, let's have a home mortgage interest tax deduction yadda-yadda-yadda.

The R-Party has become a feckless confederacy of nincompoops. A herd of hypocrites. A troop of baboons quoting Rush Limbaugh pointing their boners at Sarah Palin.

 
At 3/15/2011 6:35 PM, Blogger juandos said...

Typical pseudo benny, long on stupid, short on substance...

"the "blight" rationale is even nastier than kelo in some ways"...

Good point morganovich, that totally slipped my miniscule mind considering its obviousness...

Thanks for the link...

That's quite the tale...

 
At 3/15/2011 7:05 PM, Blogger morganovich said...

benji-

you are now shifting the debate and trying to obfuscate the point while ascribing views to me that i do not hold. you know full well i am not in the camp you describe.

no one was talking about downzoning.

you know the zoning when you buy and it may well be a feature you seek. it certainly was for me. you are just insisting on a certain view of property rights. but is you property really worth more if the people around you can build anything they want? are you really freer to use your property as you like in such a system.

aren't you the one who argued FOR the freedom of ticket sellers to attach restrictions to their tickets if they see fit? it's a voluntary transaction. how is housing different? you seem to have very inconsistent views.

this is an issue of rights structure. there is a parallel here with smoking laws. do you have the right to smoke or do i have the right to clean air? is the fact that my clothes stink after a night around smokers not harmful to my property? it's an externality of their behavior that i now have a dry cleaning bill. so which structure maximizes freedom and individual rights?

the same could be said of zoning free construction. if i build a cement plant next to your house, the noise and dust and traffic will make your property much less enjoyable. how is that not a degradation of your property in the same way that my smoking a huge cigar that smells like feet next you you at dinner diminishes your dining enjoyment or my having a bake sale in the middle of a road degrades your access to it?

downzoning is an entirely different issue. to take away the property rights that someone paid for without their consent is theft. that says nothing about whether or not my rights are better protected by zoning or not.

ps.

houston has some of the worst real estate values in the US. you sure you want to use that as an example of the right way to do things?

 
At 3/15/2011 9:26 PM, Blogger Ron H. said...

morganovich

I remember the Didden story now. I see that scary woman Sonia Sotomayor was involved in this case as a federal judge.

 
At 3/15/2011 9:33 PM, Blogger Ron H. said...

Benji

"Morgan--Your comments are typical of the R-Party establishment. Everyone is libertarian and for free enterprise except for....no factories in my neighborhood, no apartments, let's regulate this and that, no pot-smoking, let's close bars at 2 am, let's have an FDIC, let's have a home mortgage interest tax deduction yadda-yadda-yadda."

Who is saying all those things? You should be more careful when you categorize people. Your simplistic stereotyping may not be serving you well.

 
At 3/15/2011 10:20 PM, Blogger Hydra said...

I'm happy to buy a house in a neighborhood with such zoning.

Fine. Then I assume you also agree that when one persons property is downzoned, then that means that the owners neighbors have obtained new property rights - which they should pay for.

 
At 3/15/2011 10:33 PM, Blogger Hydra said...

wnzoning is an entirely different issue. to take away the property rights that someone paid for without their consent is theft.

======>>>>>>=============

Agreed, but doesn't just about every zoning designation result from a downzoning, at some point?

Conservation activists in my community openly brag about having downzoned parts of this county - six times.

Some properties were zoned originally for one house per four acres, and are now reduced to properties of hundreds of acres with only the grandfathered structures allowed.

The neighbors of those properties picked up a bunch of new morganovich rights, over the past thirty years. None of which were paid for.

 
At 3/15/2011 10:43 PM, Blogger Hydra said...

So which structure maximizes freedom and individual rights?

=======>===>>==>>>>>>>==

Easy. Minimize total cost where

Total Cost = Production Cost + External Cost + Government Cost

 
At 3/15/2011 11:00 PM, Blogger Hydra said...

If under color of law I take your land, but pay you for it, that may be wrong. At least you get something, adjudicated in court as market value.

=======>>>>>>>>>>>>>>>

In this state, the market value paid is determined by a five judge panel. The same panel that must rule in favor of the eminent domain taking. An owner can appeal, but even if he appeals and wins, he cannot recover legal costs. If you have to relocate your business as a result, your moving expenses are capped ($50 k, I think).

Any semblance of fair market value is a farce.

What would be more fair would be DMV established by a jury.

Since the new use is not possible without cancelling the old one, the previous owner ought to get a cut of the cash flow out of the new use, maybe.

Consider that a cell tower on your property will result in rent, but a power line with several towers will result in a one time payment. And since the power line is an easement, you still own and pay tax on the land.

Pretty good deal.

 
At 3/16/2011 8:43 AM, Blogger morganovich said...

hydra-

"Fine. Then I assume you also agree that when one persons property is downzoned, then that means that the owners neighbors have obtained new property rights - which they should pay for."

this is a meaningless comment.

i just said that i don't think down zoning should be permitted without owner consent.

but even if it were, it is not my fault as another homeowner. imagine the precedent you set by establishing such a stupid standard for compensation.

i plant a tree in my yard. it provides shade to you. i change you for it claiming i have improved you property. and that's not even as stupid as what you propose because at least i planted the tree.

in the other case, the government did something beyond my control (and quite possible against my will) and you are asking me to pay for it.

this is the equivalent of my dinging your car door and then demanding that benji pay for it because it made his car more valuable in relative terms.

do you think at all before you write this stuff?

 
At 3/16/2011 8:57 AM, Blogger morganovich said...

"Some properties were zoned originally for one house per four acres, and are now reduced to properties of hundreds of acres with only the grandfathered structures allowed."

first off, i oppose such actions. secondly, they should have been compensated by the agency doing the damage. third, you have no idea if this enhanced the rights of others of not. if i wanted to start a farm stand, the population density would have been very useful to me. you don;t know if upzoning or downzoning is the local preference. you need a market for that.

you are just talking nonsense hydra and you are looking to open an impossible can of worms. if the government can bill everyone it feels benefits from any of its actions and use that money to pay others, there is no end to what they can and will take. you want to talk about rent seeking. people will beg the government to downzone their vacant lots so they can get money from the neighbors. that is NOT a voluntary transaction.

that would make kelo and didden look like a walk in the park.

by your logic, a smoker could demand payment from a restaurant for not smoking.

look, i'm not arguing that you NEED zoning. i am arguing that many people PREFER zoning. this is easily demonstrated by looking at areas with restrictive zoning (like beacon hill) and comparing them to areas with no zoning (like houston or even boston suburbs)

in a free market, we can experiment with different rights structures and see what works. better, we can have a plurality of options so that we are not jammed into a one size fits all situation.

you don't like the zoning? don't buy there. head to houston where you and benji can build to your heart's content. but many of us prefer a different rights structure. protection of property from the externalities and nuisances produced by neighbors is a maximization of personal liberty and of the protection of private property.

you are mistaking freedom for liberty.

freedom is the ability to shoot someone and take their wallet. liberty comes from everyone giving up that right and making it safe to walk down the street.

 
At 3/16/2011 11:00 AM, Blogger Junkyard_hawg1985 said...

"this is an issue of rights structure. there is a parallel here with smoking laws. do you have the right to smoke or do i have the right to clean air? is the fact that my clothes stink after a night around smokers not harmful to my property? it's an externality of their behavior that i now have a dry cleaning bill. so which structure maximizes freedom and individual rights?" - Moganovich

You and I usually agree on most items, but I think we diverge around property rights. I don't smoke, I think it stinks, and I have a daughter mildly asthmatic who cigarette smoke bothers. Having said that, the only smoking bans I think the government has the right to enforce is on government property. If the owner of the restaurant want to ban or allow smoking, that is his business as he owns the joint (no pun intended). I have the right to avoid restaurants that allow smoking. If there are enough customers like me, there will be smoke-free restaurants. If there are enough smokers, ther will be restaurants that allow smoking.

 
At 3/16/2011 12:00 PM, Blogger morganovich said...

jh-

that's a tricky one.

if i walk up to you holding a skunk and it sprays you, you would rightly demand that i pay for your cleaning bills.

how is my enormous cigar any different?

i am also sympathetic to the "it's private property, don't come here if you don't want to" argument. but that has limits as well. saying "this is a punch you in the face bar, if you come here, anyone can punch you in the face" likely goes too far. not everyhting is permissible just because it's private property.

the question is where we feel smoking fits on a continuum. it's generally permissible to talk loudly in a bar, but not to punch someone in the face, even with the permission of the landlord. so is smoking more like loud talking or a punch in the face? spraying a bottle of wine around the room might result in similar cleaning needs for other patrons and you'd generally be held accountable for it. saying "i enjoyed it and it's a free country and you should just deal with it" would not excuse you from culpability. is smoking so different? (one could argue that ti's worse as wine stains are not carcinogenic).

the smoking issue is a really complex and thorny one. the answer is highly debatable. i was just raising it as an example of differing conceptions of rights.

do i have the right to clean air and clothes or do you have the right to enjoy your chosen vice or does a landlord have the right to determine what goes on in his/her establishment? no one of these standards is ideal and all require judgment and some subjective choices.

issues where different rights structures contradict one another (like zoning) are always complex and thorny.

there are rarely absolute answers that can be unambiguously arrived at though any one rights structure.

this is where ideals like pragmatism and positive law tend to come to the fore.

it's not always possible to resolve rights conflicts otherwise.

 
At 3/16/2011 12:47 PM, Blogger Junkyard_hawg1985 said...

morganovich,

I strongly lean to the side of private property rights. If I come onto your property and get sprayed by your pet skunk, should you pay to clean my clothes. I don't think so. If you bring your pet skunk to my property and it sprays me, you are paying for my cleaning bill.

Likewise, if I want to go to a patch of private property that allows people to punch each other in the face, that is completely permissible today.

Finally, even though I believe the government should not be dictating what people do on their private property, people are usually pretty reasonable about it. If I am with my daughetr and explain that she has asthma and their smoking harms her, most people will put out a cigarette without government intervention.

 
At 3/16/2011 1:19 PM, Blogger Ron H. said...

morganovich

"do i have the right to clean air and clothes or do you have the right to enjoy your chosen vice or does a landlord have the right to determine what goes on in his/her establishment? no one of these standards is ideal and all require judgment and some subjective choices."

If this is a multiple choice question, I'll pick answer C. The landlord has a right to determine what goes on in his/her establishment. Each of us can choose whether to patronize a particular business. I agree with Junkyard that the market will decide if the landlord's choice is in his own best interest.

The punch-you-in-the-face example is a good one. I have been in bars like that (when I was much younger) and although it wasn't really OK to punch people, I learned that if I was going to spend time there, I was going to get in fights. I had a choice.

I agree that there aren't always easy answers, and that judgment is required. Sometimes there's a fine line between suffering actual damage, and being annoyed.

 
At 3/16/2011 1:27 PM, Blogger morganovich said...

jh-

actually, you comment about a boxing ring is not accurate.

as someone who was an avid muy thai practitioner for years, i can tell you that the waivers you need to sign before stepping into a ring for real are VERY significant. just stepping in is not enough.

but, for clarity, let's take another example: how about murder?

if i say it's OK to kill people in my bar, that does not exonerate anyone from engaging in such activity.

some have argued (though the evidence is unclear) that second hand smoke kills. it's pretty clear that smoking has severe health effects and can kill.

why does the right to smoke trump the right to not be assaulted in such a way?

i think you are trying to wriggle out of this by getting too bogged down in the specifics and missing the general issue as a result.

when the rights afforded by different structures conflict, there is rarely a clear answer.

 
At 3/16/2011 1:45 PM, Blogger morganovich said...

another way to make my point is this:

i assume that you agree that not all behavior is permissible even on private property. murder provides a strong example.

if that is so, then you must admit that the right to the free determination of how people act on one's property is not absolute.

this just makes the whole issue a matter of degree.

if i said "stabbing people with knives gives me a nice buzz and relaxes me" you's (rightly) still declare such behavior outrageous even if the bar owner said it was fine.

is there some lightness of stabbing that would be OK? is there some mild stab whose risk to your life is equivalent to having smoke blown in your direction? would that then be OK?

does public sentiment count? (this is a very slippery and tricky area). if 90% of people oppose smoking in bars, is it right to ban it. it's temping to say yes, but i would tend to say no. substitute "criticizing the congress" for smoking and it becomes apparent why. the whole point of rights is to avoid tryannry of the majority.

this brings us back to the rights issue.

if it is not always permissible to do whatever you want, even on private property, then we are left making a determination about how much harm can be allowed.

if you step into a boxing ring and i walk up and deck you, you can still sue me. hell, you could probably sue me even if we both had gloves on. even after signing unbelievably draconian waivers, i had a guy try to sue me for dislocating his jaw.

such harm is easy to point to and identify. this makes establishing guilt and compensation relatively straightforward.

the same is true of a light stabbing (perhaps just with a pin?) equivalent in danger to smoke.

in an issue like second hand smoke or zoning, the costs are diffused, take place over long periods of time, and can have very difficult causality to establish and are very difficult to create compensation structures around because there is no obvious relationship between the parties.

this leads into the topic of coasian efficiency and what the costs of regulation are in comparison to the costs of redressing externalities through negotiation.

http://en.wikipedia.org/wiki/Coase_theorem

in a situation where an actor causes small harm to a large number of people, redress becomes impracticable. in such a case, prevention of the externality may lead to a more optimal result.

 
At 3/16/2011 2:02 PM, Blogger Junkyard_hawg1985 said...

Morganovich,

I'll agree with you that you can't murder someone on private property (or rape or assault or commit fraud). Your example on boxing is accurate in that people sign waivers. People make these choices by free will. This example is especially important since the article referenced by Mark is on a boxing gym.

The murder example does not correlate with smoking. Smoking can take 10 years off your life just like obesity (>100 lb above healthy weight). If you are a restaurant owner, are you responsible for killing people by causing them to gain weight or feeding people who are >100 pounds overweight? Some nanny police may think so, but I want to live in a free country. I hate the smell of cigarette smoke, but I hate the loss of freedom more.

 
At 3/16/2011 2:31 PM, Blogger morganovich said...

here's another way to look at it:

i presume you will agree that the right to do as you please on private property is not absolute. murder and pedophilia seem like strong examples of why this must be so.

if we accept that such rights are not absolute, then the whole discussion becomes about matter of degree.

if i said "stabbing people with knives gives me a nice buzz and helps me relax and the landlord says it's OK, so i'm going to stab you" you'd find that ludicrous, oppose my "right" to do so, and hold me liable if i did.

so, let us assume that we have a "harm'o'meter" that can accurately assess the harm of actions. it stands to reason that there is some form of light stab (perhaps just with a thumbtack) whose irritation and health risk value is equivalent to having smoke blown on you.

so does this stabbing suddenly become OK just as smoking would be under the rights structure you propose?

how about just very mild pedophilia?

if we deem such assaults as assaults, how is the soiling of clothing and health risk from carcinogen exposure different?

i presume that you consider yourself to have a right to the sanctity of your person regardless of whose property you are on.

aren't we then just arguing over what constitutes an assault?

we have already determined that the right not to be assaulted trumps the right to do as you like on private property. (unless you think it's OK for me to kill you in my living room, which i doubt)

so, we are left with the subjective judgment call on just what assault is and what manner of externalities require redress and how to best do so.

thus, the smoking thing is ALWAYS going to be a subjective judgment call.

if we accept that it is harm, then we get into the whole coasian discussion about how to set up a rights structure to minimize negative externalities and the cost of redressing them.

http://en.wikipedia.org/wiki/Coase_theorem

the issue with smoking (and unlimited construction) is that one actor produces externalities of a difficult to quantify size upon a diffuse number of others with whom there is no a priori relationship.

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

but again, it will always be a judgment call. if water from my car's windshield washers hits your car on the highway, few would call that harm worthy of redress, but if i pour ink on your shirt, most would say it is my fault and i should pay.

smoking is a tricky one that falls in the middle.

which rights structure we use depends entirely upon whether or not we determine that smoke violates the sanctity of another's person.

 
At 3/16/2011 2:39 PM, Blogger morganovich said...

also: your example of food is not really comparable. if i order a cheesecake, it adds no calories to your dinner even if i sit right next to you and chew with my mouth open. you are in full control of your food intake. if i force fed you like a pate goose, that would be another matter...

but if i smoke next to you, it's different. you get the effects if you want them or not. sure, you could leave, but that has real costs to you just as moving out of your home because i started a chicken farm next door does.

i still think it comes down to whether or not we accept smoking as violation of ones personal sanctity or not.

until you determine that, which rights structure to use is unclear.

if it is not an assault/violation, then you go with property rights, but if it is, then i think you have already agreed that the right not to be assaulted trumps the right to do as one pleases on his property.

it's the definition on smoking that really matters here. i think we can all likely agree that it does some amount of harm even if it is minuscule. the question is where do we draw the line and call it harm.

 
At 3/16/2011 2:40 PM, Blogger morganovich said...

this should have been first. having difficulty posting it.

here's another way to look at it:

i presume you will agree that the right to do as you please on private property is not absolute. murder and pedophilia seem like strong examples of why this must be so.

if we accept that such rights are not absolute, then the whole discussion becomes about matter of degree.

if i said "stabbing people with knives gives me a nice buzz and helps me relax and the landlord says it's OK, so i'm going to stab you" you'd find that ludicrous, oppose my "right" to do so, and hold me liable if i did.

so, let us assume that we have a "harm'o'meter" that can accurately assess the harm of actions. it stands to reason that there is some form of light stab (perhaps just with a thumbtack) whose irritation and health risk value is equivalent to having smoke blown on you.

so does this stabbing suddenly become OK just as smoking would be under the rights structure you propose?

how about just very mild pedophilia?

if we deem such assaults as assaults, how is the soiling of clothing and health risk from carcinogen exposure different?

i presume that you consider yourself to have a right to the sanctity of your person regardless of whose property you are on.

aren't we then just arguing over what constitutes an assault?

we have already determined that the right not to be assaulted trumps the right to do as you like on private property. (unless you think it's OK for me to kill you in my living room, which i doubt)

so, we are left with the subjective judgment call on just what assault is and what manner of externalities require redress and how to best do so.

thus, the smoking thing is ALWAYS going to be a subjective judgment call.

if we accept that it is harm, then we get into the whole coasian discussion about how to set up a rights structure to minimize negative externalities and the cost of redressing them.

http://en.wikipedia.org/wiki/Coase_theorem

the issue with smoking (and unlimited construction) is that one actor produces externalities of a difficult to quantify size upon a diffuse number of others with whom there is no a priori relationship.

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

but again, it will always be a judgment call. if water from my car's windshield washers hits your car on the highway, few would call that harm worthy of redress, but if i pour ink on your shirt, most would say it is my fault and i should pay.

smoking is a tricky one that falls in the middle.

which rights structure we use depends entirely upon whether or not we determine that smoke violates the sanctity of another's person.

 
At 3/16/2011 2:44 PM, Blogger morganovich said...

this ought to have posted first. having some difficulty getting it to take.

here's another way to look at it:

i presume you will agree that the right to do as you please on private property is not absolute. murder and child abuse seem like strong examples of why this must be so.

if we accept that such rights are not absolute, then the whole discussion becomes about matter of degree.

if i said "poking people with knives gives me a nice buzz and helps me relax and the landlord says it's OK, so i'm going to stab you" you'd find that ludicrous, oppose my "right" to do so, and hold me liable if i did.

so, let us assume that we have a "harm'o'meter" that can accurately assess the harm of actions. it stands to reason that there is some form of light stab (perhaps just with a thumbtack) whose irritation and health risk value is equivalent to having smoke blown on you.

so does this stabbing suddenly become OK just as smoking would be under the rights structure you propose?

if we deem such assaults as assaults, how is the soiling of clothing and health risk from carcinogen exposure different?

i presume that you consider yourself to have a right to the sanctity of your person regardless of whose property you are on.

aren't we then just arguing over what constitutes an assault?

 
At 3/16/2011 2:44 PM, Blogger morganovich said...

we have already determined that the right not to be assaulted trumps the right to do as you like on private property. (unless you think it's OK for me to kill you in my living room, which i doubt)

so, we are left with the subjective judgment call on just what assault is and what manner of externalities require redress and how to best do so.

thus, the smoking thing is ALWAYS going to be a subjective judgment call.

if we accept that it is harm, then we get into the whole coasian discussion about how to set up a rights structure to minimize negative externalities and the cost of redressing them.

http://en.wikipedia.org/wiki/Coase_theorem

the issue with smoking (and unlimited construction) is that one actor produces externalities of a difficult to quantify size upon a diffuse number of others with whom there is no a priori relationship.

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

but again, it will always be a judgment call. if water from my car's windshield washers hits your car on the highway, few would call that harm worthy of redress, but if i pour ink on your shirt, most would say it is my fault and i should pay.

smoking is a tricky one that falls in the middle.

which rights structure we use depends entirely upon whether or not we determine that smoke violates the sanctity of another's person.

 
At 3/16/2011 2:45 PM, Blogger morganovich said...

we have already determined that the right not to be assaulted trumps the right to do as you like on private property.

so, we are left with the subjective judgment call on just what assault is and what manner of externalities require redress and how to best do so.

thus, the smoking thing is ALWAYS going to be a subjective judgment call.

if we accept that it is harm, then we get into the whole coasian discussion about how to set up a rights structure to minimize negative externalities and the cost of redressing them.

http://en.wikipedia.org/wiki/Coase_theorem

the issue with smoking (and unlimited construction) is that one actor produces externalities of a difficult to quantify size upon a diffuse number of others with whom there is no a priori relationship.

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

but again, it will always be a judgment call. if water from my car's windshield washers hits your car on the highway, few would call that harm worthy of redress, but if i pour ink on your shirt, most would say it is my fault and i should pay.

smoking is a tricky one that falls in the middle.

which rights structure we use depends entirely upon whether or not we determine that smoke violates the sanctity of another's person.

 
At 3/16/2011 2:47 PM, Blogger morganovich said...

is anyone else having a terrible time getting posts to stay up? sorry if these wind up duping horribly.

we have already determined that the right not to be assaulted trumps the right to do as you like on private property.

so, we are left with the subjective judgment call on just what assault is and what manner of externalities require redress and how to best do so.

thus, the smoking thing is ALWAYS going to be a subjective judgment call.

if we accept that it is harm, then we get into the whole coasian discussion about how to set up a rights structure to minimize negative externalities and the cost of redressing them.

http://en.wikipedia.org/wiki/Coase_theorem

the issue with smoking (and unlimited construction) is that one actor produces externalities of a difficult to quantify size upon a diffuse number of others with whom there is no a priori relationship.

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

but again, it will always be a judgment call. if water from my car's windshield washers hits your car on the highway, few would call that harm worthy of redress, but if i pour ink on your shirt, most would say it is my fault and i should pay.

smoking is a tricky one that falls in the middle.

which rights structure we use depends entirely upon whether or not we determine that smoke violates the sanctity of another's person.

 
At 3/16/2011 3:14 PM, Blogger Junkyard_hawg1985 said...

Morganovich,

I understand your arguement and usually find myself in agreement with you, but on this issue we diverge. I understand that cigarette smoke drifts from one place to another. So does almost everything else: body odors, farts, pollen from the plants and trees in my yard, smoke from my fireplace, the shadows from my trees , etc.

Unless there is a compelling reason to limit someone's activity on their own property (i.e. a crime), I'm with the property owner. No person shall be deprived of life, liberty or property without due process of law. We have a legal system to measure whether the issue is compelling. Smoking on private property does not come close to this level.

 
At 3/16/2011 3:24 PM, Blogger morganovich said...

jh-

i think you are making my point for me.

you agree that there is such a thing as having the sanctity of your person violated.

you also seem to agree that such rights trump the right to do as you like on private property.

so that just leaves us determining where the line is.

i think you are skipping a step by assuming that second hand smoke is not such a violation.

perhaps that is the correct view. perhaps it is not.

my point is that the whole debate comes down to the subjective choice about whether we lump smoke in with flatulence or with stabbing someone with a pin or pouring paint on them.

one could argue that taking years off my life by smoking around me is a defacto violation of my right to life.

if we agreed that it was, wouldn't that take precedence over property rights?

 
At 3/16/2011 3:31 PM, Blogger Junkyard_hawg1985 said...

Morganovich,

I believe the standard is whether 12 of your peers would agree unanimously. This standard has been around for a while. All the additional nanny-state crap needs to go.

 
At 3/16/2011 3:43 PM, Blogger morganovich said...

jh-

you mean the way juries have done such a good job determining medical liability and all manner of other tort issues?

do you really want this sort of legislation from the bench?

 
At 3/16/2011 4:18 PM, Blogger Junkyard_hawg1985 said...

No. I mean the way juries have determine guilt or innocence on assault charges in fights, murder charges on home invasion cases, etc.

You equated smoking with assault.

 
At 3/16/2011 5:59 PM, Blogger Hydra said...

i just said that i don't think down zoning should be permitted without owner consent.

================================

When has that ever happened?

All I'm saying is that downzoning occurs all the time, it nearly always represents a loss in value for the owner, for which he is not compensated, and an increase in value for others, which they don't pay for.

The supreme court has already held that compensation for regulatory taking is required, but only when almost all the value is taken.

At the same time the court has upheld the idea of property as a bundle of sticks, which is seperable. this is how conservation easments, mineral rights, and other issues work.


It seems to me there is a fundamental disconnect here. If someone downzones me or regulates me out of one fo my sticks (which I paid for), haven't they taken substantially all the value of that stick?

 
At 3/16/2011 6:06 PM, Blogger Hydra said...

imagine the precedent you set by establishing such a stupid standard for compensation.

=================================

You mean like paying for what you get?

Or you think it is OK for people to use the government to gang up on people and steal their valuable property?

 
At 3/16/2011 6:12 PM, Blogger morganovich said...

hydra-

having to pay someone else because of a government action that you quite likely did not approve of is not "paying for what you get".

imagine this conversation:

government: we just rezoned the parking lot of the store near you to be available for public parking. you need to pay them for their loss.

you: but i don't even own a car nor do i want to see that lot go away.

government: tough. it benefits you. pay up.

is that paying for what you get?

where is the voluntary transaction?

 
At 3/16/2011 6:15 PM, Blogger Hydra said...

first off, i oppose such actions. secondly, they should have been compensated by the agency doing the damage. third, you have no idea if this enhanced the rights of others of not.

=================================

I'm glad to hear you oppose such actions, and agree that the agency involved should have compensated.


As for the rights of others, I think I have some idea.

1. Studies of property values have shown that being near large open spaces enhanes the value of adjacent properties. (so does being near excellent shopping). Having sidewalks, surprisingly, decreases the value. It is common for groups to try to enhance their values by limiting construction after they get theirs built.

2. In my area, conservation advocates, and fiscal conservatives, advertise that restricting land use saves money for everyone else. They do this openly and proudly, soo if they are claiming this is good for thier property rights,I have no reason to disagree.

3. Some people exercised certain rights, and other people now will not get to exercise the same rights. How is one not enhanced compared to the other?

 
At 3/16/2011 6:19 PM, Blogger Hydra said...

if the government can bill everyone it feels benefits from any of its actions and use that money to pay others, there is no end to what they can and will take.

==================================

Exactly not.

Right now many government actions are based on claims of public benefit, which may be overblown. however, the losses are pretty easy to measure.

If those claiming the benefits knew for certain that they would have to compensate the losses, they would be less likely to champion causes with marginal real benefits.

 
At 3/16/2011 6:21 PM, Blogger morganovich said...

JH-

i was trying to define it as a violation of the sanctity of your person.

here, we get into coase again.

one of the problems is that no one with lung cancer can prove what caused it. was it second hand smoke, was it genetics, bad luck?

such causality only emerges through statistically significant sample sizes.

i can prove that my clothes stink of smoke and need to be cleaned, but how do i point to the folks in a room full of smokers and apportion the cost?

this makes it effective impossible to remedy the externality through individual transactions.

thus, we wind up left with regulations as the only real option for mitigation.

that brings us back to whether or not smoking violates my rights sufficiently to warrant regulation.

it's tempting to say "well ask the public", but i find that route highly dangerous. if 90% of people agree that banning smoking in public is good, it's seductive to say "majority rule" but substitute "criticizing the democratic party" for smoking and i think you can see how dangerous such ideas are.

so, i think we keep winding up trying to decide which side of the fence smoking falls on, acceptable nuisance like flatulence, or pernicious impact like a poke in the eye.

i'm not saying that i know the answer.

the problem is that at some point, you need a subjective call on what constitutes sufficiently pernicious to be banned in public. only once you have established that can you figure out how to maximize rights and freedom.

 
At 3/16/2011 6:23 PM, Blogger Hydra said...

people will beg the government to downzone their vacant lots so they can get money from the neighbors. that is NOT a voluntary transaction.

===============================

Neither is being downzoned against your will, but this example is silly. If I wante to be downzoned and my neighbors didn't want it, I'm just one voice and unlikely to get my way.

But if they want me downzoned and I don't, I'm still only one voice.

It is an asymmetric deal, that results from government not protecting people property equally.

 
At 3/16/2011 6:25 PM, Blogger Hydra said...

Besides, that lot with a structure on it is likely to provide better cash flow than a vacant lot and a lump some payment for not using it.

Even so, it would be better than what you get now, which is nothing.

 
At 3/16/2011 6:28 PM, Blogger morganovich said...

"If those claiming the benefits knew for certain that they would have to compensate the losses, they would be less likely to champion causes with marginal real benefits."

i think you are missing this entirely in terms of the potential for abuse.

let's say i have a vacant lot near you. it is zoned for live/work. i decide to build a house. i then get the land down zoned to pure residential. you get a bill for the benefit.

how do you feel about that?

those who are politically connected will down zone their vacant land, rake in cash from you, then change the zoning again later if they want to possibly while claiming that the addition of a shopping center will benefit your property values and then charge you again.

do you really want to open the door to those kinds of shenanigans?

giving the government the power to make you pay me for a "service" you did not request is a terrifying proposition.

 
At 3/16/2011 6:33 PM, Blogger Hydra said...

look, i'm not arguing that you NEED zoning. i am arguing that many people PREFER zoning.

=================================

I wouldn't argue with that. I just prefer to have the zoning I once had. Zoning that was in place and was a reason for the original purchase.


But I have seen places that were previously downzoned, without payment, and then sold. Years later the new owner applies for a zoning variance, and the county expects him to pay for the new "property rights" he is getting.


I have seen areas that previously downzoned proerty rights out of existence. Then, when they could not squeeze anymore blood out of that stone, they instituted a program under which they use tapayer money to purchase development rights.

I see two problems with this. First, if they are now buying valuable development rights, doew that not imply that the ones extinguished previously were stolen?

Second, the county has procedures with disposing of valuable but surplus property, which usually means they are auctioned off. In this case, they use county money to buy valuable property, which then just disappears.



??????

 
At 3/16/2011 6:42 PM, Blogger Hydra said...

you don't like the zoning? don't buy there.

================================

Umm, I was here first. By a long shot. Like I said, I like the zoning I used to have.


But I'm not pigheaded about it. the county claims that for every house not built, they save around $2700 a year. By that recknoning I could easily be saving them $60,000 a year (I think their figures are wrong, but lets go with it).

If they paid me 4% interest on the money they claim I'm saving them, I'd shut up. It would be a fraction of what I maight make otherwise, but it requires no ADDITIONAL investment to the one I already made (and lost value in), and no risk.

I'd take that as a fair deal, but not a fair deal they get all the protection of zoning and I get none.

 
At 3/16/2011 6:48 PM, Blogger Hydra said...

Sometimes there's a fine line between suffering actual damage, and being annoyed.

================================

Actual damage can usually be demonstrated. We could do a lot better at both sides of this if we tried. Using market based regulation would help.


Obviously there is no net gain to be made if one party is able to cause another to incur $1000 of expense in order to prevent $100 in damages (sometimes imagined damages).


But we see people from the far end of the county show up to argue against some construction project, because they imagine that they should be protected from even the slightest and remotest indignity, no matter the cost to their fellow citizens.

 
At 3/16/2011 7:00 PM, Blogger Hydra said...

let's say i have a vacant lot near you. it is zoned for live/work. i decide to build a house. i then get the land down zoned to pure residential. you get a bill for the benefit.

how do you feel about that?

=================================

In order to get the land downzoned you would have to apply for a variance, same as for an upzone.

You are effectively offering property for sale (the value of the benefits, whatever they are).

If the board of zoning appeals agrees to "buy", then it must be becasue they see a net benefit to the community: they can take some of those benefits and use them to pay you the cost of the lost of use of your property.

I don't have a problem with that, except we are a little fuzzy on values, but we can improve that with history and practice.

But, the board may refuse to buy, in which case you have no market for your goods. But you have not lost the goods, so you have no reason to complain. And you can still sell them, higher use rights, along with the property and move to some other place that is already downzoned, and worth less.

Presumably, you bought the place with that zoning in place, and you wanted it for some reason. Because of that I think your example is silly, and unlikely.

The opposite is far more likely: yu neighbors want your rights, and know they can get them without payment, so they do.

 
At 3/16/2011 7:11 PM, Blogger Hydra said...

issues where different rights structures contradict one another (like zoning) are always complex and thorny.

==============================

Usually they become complex and thorny when someone invents a new right and then claims it for themselves, without regard to the expense it causes others.

Lets say we agree that spotted owls are part of the natural dominion that we all own in common. I then own own 1/350 millionth of the value of spotted owls, whatever that is, and I don't want it diminished, not even one iota.

To hell with the guy who thinks he has some rights in pine trees just because he bought or planted them and the land they are on and took tcare of them and the spotted owls (for me and others) for 40 years.



Wen we walk on a crowded sidewalk we occasionally bump and are bumped. We accept that, until someone really screws up, and slams into us while yakking on the phone. But there is also the paranoid schizophrenic who cannot tolerate any touching and thinks he has the right to an entire sidewalk - absolutely zero touching allowed.

This is the same kind of person who believes that that they have the right to 100% protection from all pollution, no matter how small the harm to them or how great the cost to others.

 
At 3/16/2011 7:24 PM, Blogger Hydra said...

in such a case, the costs of remediation are ill defined and very difficult to collect and distribute which makes prevention of the externality more attractive.

=================================

True, but we don't try very hard because there is so little chance of property rights protection. We use the precautionary principle to excess, and in every direction at once.

We can do a lot better at determining costs and benefits if we try, but we need to have a reason.

I argue that using excess resources to get a small benefit, no mater how warm and fuzzy, is still a waste.

Furthermore, if the excess money could have been used to better effect providing different benefits of equal value, then this implies that someone is getting more protection of their (preferred) property then their fellow citizen.

We are really lousy at calculating risks or agreeing on the costs, and yet we do it every day.

The EPA recently backed down on some strict combustion rules, saying the the downward revised new rules would confer nearly as much benefit at less than half the cost.

One has to wonder what they were thinking. Shoot, lets just waste half of our air pollution control money and buy next to nothing with it.

 
At 3/16/2011 7:39 PM, Blogger Hydra said...

I think the smoking is a silly argument, but lets say I have a restaurant, and it makes x dollars a month.

Then the municipality bans smoking and my receipts drop, because some of my customers refer to eat and smoke at home.

My remaining customers get a benefit, that they don't have to pay for (maybe). They get to go home smelling like my menu of barbecued goat, spicy chicken wings, and fried clams, instead of all that stuff plus cigarettes.



I would argue that as owner, I lost actual value, proven by the receipts, and the right to attract certain customers.

My nonsmoking customers always had the right to go to non-smoking restaurants, and to lobby me to exclude others. They gained rights and lost none. but they paid nothing for what they gained.

My smoking customers never had the right to smoke in my restaurant anyway, it is my restaurant and i make the rules. They haven't lost anything, because they never actually had it, and it wasn't something they paid for.

If every restaurant loses customers, prices will go up and the nonsmokers eventually pay for their new privileges.

That doesn't help me much in the short term, so we need to talk about discount rates.

 
At 3/16/2011 7:43 PM, Blogger Hydra said...

this makes it effective impossible to remedy the externality through individual transactions.

=================================

The transaction costs are too high.

Transaction costa are an external cost themselves, and it is something activists like to ignore. But that just means they are ignoring someone elses property rights.

When does a casual sidewalk bump become rude, and when does it become assault?

 

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