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Notes -
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.
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.
Note that the Supreme Court has ruled that it is unconstitutional for a large municipality to delegate its zoning authority to smaller "neighborhood zoning districts".
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