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Notes -
Court opinion somewhat relevant to the culture war:
According to lawmakers: "New Jersey is consistently in the top three in the nation with the highest foreclosures. Our state also has the widest racial wealth gap in the country. Black and brown wealth is hemorrhaging through the loss of foreclosed property, and the people who live in the community often do not have deep enough pockets to even participate in the foreclosure process." "The current process favors companies that have the money to purchase property at sheriff sales and resell it for a profit." In response to these concerns, the state govt. enacts a law ensuring that, whenever a residential property is foreclosed on, a right of first refusal is granted to the owner, his next of kin, and his tenants (if the owner is an individual rather than a company), and a right of second refusal is granted to certain redevelopment-oriented nonprofits (regardless of the owner's identity). Normally, foreclosure results in an auction starting at an "upset price" (minimum/reserve price) set by the foreclosing lienholder (presumably the lender of the property's first mortgage). However, these two new rights of refusal allow the property to be purchased for the upset price without an auction. The lawmakers say: "This legislation will help to keep property ownership within the community." "This is what equity in systems looks like."
However, the new law causes problems because it often results in undervaluation of the property, so that junior lienholders don't get paid back. For example, in one of the cases consolidated here: A residential property with estimated fair market value of at least 680 k$ was foreclosed on. US Bank held a first mortgage for 281 k$, and PNC Bank held a second mortgage for an amount that I can't find in the court documents. US Bank set the upset price at 309 k$. PNC was prepared to bid the auction up to 401 k$, which presumably would suffice to pay off both mortgages. However, instead a nonprofit exercised its right of second refusal and bought the property at the upset price of 309 k$, paying off US Bank's mortgage but leaving PNC with substantially less than what it would have gotten at auction. In PNC's words: "The refusal to recognize other bids results in illegal lien-stripping and the illegal taking of substantial surplus that would have been realized, and the deprivation of PNC's property interest that would have attached to that surplus." (PNC also alleges that the nonprofit is a sham. It was created just a few days before the auction would have taken place, and is not registered as a nonprofit with the state govt. or with the federal IRS.)
The trial judge rules that the nonprofits' right of second refusal is an unconstitutional taking without just compensation, and the appeals panel affirms. The federal Supreme Court recently found that it is unconstitutional for the govt. to foreclose on a property for a 200-k$ tax delinquency, sell it at auction for 300 k$, and pocket the extra 100 k$. Likewise, if a property is encumbered with a 300-k$ mortgage, it is unconstitutional for the govt. to let a nonprofit buy it for 200 k$ and magically extinguish the extra 100 k$ of debt owed to a lender. (Nobody has invoked the owner's, next of kin's, and tenants' right of first refusal, so it technically is not at issue in this case. But if the right of first refusal is challenged in the future it presumably will be held unconstitutional under the same rationale.)
On the topic of 5th amendment violations
If this right of second refusal is an unconstitutional taking of the financial interests of the mortgage-holders, it seems pretty straightforward to me that rent control is an unconstitutional taking of the financial interests of property owners, and I have no idea how we've managed to get this far without a court ruling to that effect.
It seems to me that rent control is not as extreme because the landlord still gets to collect rent on his property and can apply to some pink board somewhere for rent increases. Of course I agree that rent control (and other price controls) are, generally speaking, bad public policy, but it's debatable whether they rise to the level of being a taking.
I think that the government is constantly interfering with property rights and that interference runs the spectrum from what is generally thought to be reasonable (e.g. you aren't allowed to build a factory in a residential neighborhood) all the way up to something that's clearly a taking (e.g. the government simply seizes your land). It's very difficult to draw the line, and that's what judges do -- exercise judgment.
Depends on what you mean by property rights. You bring up nuisance but that really involves a situation of conflicting property rights. A wants to use its property for X which conflicts with how B wants to use its property. How do you solve that? Well the law of nuisance. Or if you like law and Econ read The Problem of Social Costs by Coase.
That is fundamentally a different kind of regulation compared to rent control. In the first, there is a conflict in property rights. In the second, there is no conflict.
I'm not sure I understand your point here. If you tried to build a factory in a residential neighborhood, what would stop you is zoning laws. Are you saying that society could or should get rid of zoning laws and just stick to the concept of common law nuisance? (I agree that would let you stop a cement factory, but I'm not sure it would help if someone built a two-family house in an area which was zoned for single family houses.) Not trying to trap you, I genuinely don't understand your point.
Zoning law is kind of a shitty version of common law nuisance. You won’t find defending zoning qua zoning. But it is an out growth of common law nuisance and is getting at something inherently different than rent control (ie what do you when rights are incompatible). Thus comparing the two is a category error.
FWIW, I would get rid of zoning and permit restrictive deeds including racial.
Towns never handled conflicting land uses with common law nuisance - explicit regulation of land use inside the city walls is as old as self-governing towns. And the most problematic rural nuisance in the US (straying livestock) was regulated by explicit statutory codes which varied by state (open range vs closed range) because applying common law nuisance led to unsatisfactory results.
Common law nuisance works better than nothing as a default where there is no codified solution in place, but people replace it with governmental codified solutions (environmental regulations, zoning etc.) or privatised codified solutions (condo/co-op/HOA rules, restrictive covenants, long leases instead of freeholds) at the first opportunity.
Coase's theorem tells us that something like the common law rule allows market participants to cut deals and achieve efficient outcomes (and, in particular, may do better and will not do worse than a Pigouvian tax on the nuisance) if:
The second condition almost never holds in the context of urban land use, and both courts and legislatures can see this, so you end up either with command-and-control regulation or Pigouvian taxes. In the urban context you can model a municipally-imposed and collected Pigouvian tax as a Coaseian bargain between the polluter and the community as a whole.
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This is incoherent. There's no philosophical difference between "I am buying this land and subdividing it with a restrictive covenant that it may only have single family homes" and "I am founding a town and passing a zoning ordinance that only allows SFH".
Nah — the point is zoning is top down with one body deciding everything. Restrictive deeds would be more de centralized so you end up with a lot more actual diversity in land use while maintaining the ability to minimize conflicts.
It's not one body, it's every locality!
If your argument here is "the optimal size of a town is somewhat smaller than the current size", I can see that.
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I think you have that backwards. I'll never understand why libertarians and others persist in the belief that the civil court system is a kind of frictionless plane. Granted, if you have an actual dispute to resolve, it's indispensable and better than a lot of alternatives I've heard proposed, but if you can pass regulations to cut lawsuits off at the pass, you should. Imagine you want to build a cement plant. You have two options:
Build it and hope that nobody complains. You have nothing to go by ahead of time. If someone doesn't like what you're doing, or thinks it's too noisy, or complains about dust, you can pay your attorneys to spend several years litigating the definition of "reasonable" to a jury that is probably going to have more people sympathetic to noise and dust complaints than it does people who own industrial plants. Repeat this situation for every use that anyone could find remotely objectionable, which is any use you can think of. Be prepared to suspend your operations throughout the duration of the suit. Be prepared for the court to rule you have to shut down permanently, or pay ongoing damages in an amount that makes it economically unfeasible to continue.
Look at the municipalities ordinances for zoning and noise and dust abatement. Make sure you comply with the ordinances and obtain formal exemptions if you can't. If nearby homeowners want to litigate, they can do so before you've spent any serious money, and they won't be suing you so much as they will the municipality that granted the exemption. If the use is allowed by right and you are complying with the regulations, it's going to be a tough row to hoe for the plaintiffs.
These days, almost every private nuisance action I've seen has been based on independent studies showing that the defendants violated a municipal regulation that the governing body has failed to enforce; the arguments boil down to whether or not a standard was violated. The system you'd prefer is a system where both parties have to argue their version of what the standards should be. Maybe ya jury is convinced that 90 dB at the property line is an unreasonable amount of noise. We know nothing about whether 85 is okay or not. Actually, we know nothing about whether 90 is okay in another case because a different jury might see things differently, or maybe the guy suing is a huge asshole and they all agree that he deserves to live next to a hog rendering facility.
Which brings me to my second point, which is that zoning regulations were not an outgrowth of common law nuisance, at least not as we'd recognize nuisance today. Traditional common law nuisance laws, i.e. things actionable under an Assize of Nuisance, almost exclusively related to water runoff and land support. The idea was that nuisance was a counterpart to trespass; where in trespass I damage your land by entering onto it, in nuisance I do something on my own land that causes your land to be damaged. The distinction between the two was always fuzzy and by the 19th century they were all trespasses and nuisance was practically a dead letter. The doctrine as we know it today to apply to noises, smells, and the like was part of a 20th century revival that went hand in hand with the development of zoning regulations. Courts and municipal governments were looking for way to mitigate the negative effects of development, and these were two of the things they came up with.
This is why I'm not sure what you're talking about when you act like nuisance has something to do with "rights" while rent control doesn't. All rent control legislation—which coincidentally arose around the same time as zoning legislation and the modern conception of nuisance—does is create a right of a tenant to not be charged rents in excess of a specified maximum. It's no different than any other right a tenant has, whether derived from statute or common law. And if you think that there's something about common law rights that make them superior to statutory rights, keep in mind that the right to sell your property was created by statute.
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Thank you for clarifying that. I think the line is blurrier than you are making it out to be.
For example, it's very common for zoning laws to mandate minimum lot sizes and maximum numbers of units per lot.. Even though the developer (and eventual landlord) would prefer to have a larger number of units so as to maximize revenue, the municipality limits what he can charge, albeit in a roundabout way. The unstated purpose of these types of requirements is to keep out the riff raff, so to speak.
To be sure, you could argue that the neighbors of this developer have a property interest in limiting the intensity of use of neighboring lots, you could just as easily say that rent-control tenants have a property interest in being able to stay in their apartments while paying a reasonable rent.
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And just what is a 'pink board' when it's at home?
Most of the search results were about insulation.
In my day, the word "pink" was slang for "somewhat communist." It meant someone who had communist leanings but who wasn't a full on Soviet.
So a board unlikely to be sympathetic to arguments of the form "$LANDLORD1 and $POTENTIAL-TENANT2 are richer than $CURRENT-TENANT3, therefore $LANDLORD1's desire for a fancy car to compensate for his anatomical shortcomings and $POTENTIAL-TENANT2's desire to move into the district that two decades ago he treated as more dangerous than Fallujah are more important than $CURRENT-TENANT3's desire to stay in the home where she has lived through the entire Elizabethan era while still being able to afford to taste something other than shame."
Agreed. A more interesting question is whether that board would be sympathetic to the landlord's argument where (1) the current tenant has been retired for many years; his children have moved out; and not only does he have a lot more space than he needs, he has a location which is much nearer to the financial district than he needs; (2) the potential tenant could make much better use of the apartment since he has a wife, small children, and a job nearby; and (3) the landlord is a real estate investment trust with many investors who are themselves retirees who are struggling to make ends meet.
That being said, I think your hypothetical exposes a basic question of economics: Should scarce and valuable resources be distributed (1) based on a committee's opinion about who is most deserving; or (2) based on peoples' willingness to pay some private owner for those resources. I think it's fair to identify the first approach with Communism and the second approach with Capitalism.
You can certainly argue things both ways (and it doesn't have to be all one or the other) but my observations of history strongly suggest to me that option (1) tends to be counterproductive -- to put it politely.
I think it's also worth keeping in mind that other than the landlord, the first potential tenant, and the second potential tenant, there is another party to your hypothetical: Another potential landlord. Because as a society we want and need capital to be invested in building new housing stock. If the rent control mechanism sides too strongly with incumbent tenants, it will chase away investors and ultimately harm the class of people which the system is, in theory, trying to help.
One last point:
This is a big part of my issue with Communism or Marxism or whatever you want to call it. In practice it is typically infused with a kind of mean-spiritedness to the point where it can be seen as a kind of hate ideology. If the goal is to punish and humiliate rich people, well, even if a case could can be made for Communism in the abstract, it's probably not worth pursuing.
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A board that treats competence and contributing to society in ways that people actually desire enough to pay for, pale skin, and indeed the ability to spell your own name as being spiritual defects and anatomical defects per your charming descriptor, decided that being able to use the fruits of your labour to improve your life and to make a new prosperous district mattered far less than the right to contribute nothing while defecting on your debts and shoving the costs onto other people.
Isn't bulverism fun?
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I assume it's a derogatory use of "pink" to mean "left-wing" (an older meaning of the word, but it checks out).
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