James Stacey Taylor on Planning Boards and Property Rights

James Stacey Taylor has a short, thoughtful response at BHL to an earlier post of mine here at PoT,which was itself a response to something he had written at BHL. I’ll respond here at PoT when I get the chance.

My thoughts on the subject of property and planning are somewhat in flux, as I try to process the implications of some planning- and property-relevant phenomena I’ve seen while traveling–in Pakistan in 2012, in Nicaragua last year, and most intensely of all, here in Israel and Palestine, where I am right now. I’m also trying to anticipate and think through issues I expect to encounter on an upcoming trip to Pine Ridge Indian Reservation in South Dakota this fall.

It’s an enormously complex task to get straight on all of that, especially if one approaches it from the direction of the libertarian literature on property rights. On the one hand, there’s a mismatch between that literature and the facts I’m trying to conceptualize. On the other hand, theorists more directly interested in places like Managua, the West Bank, or Pine Ridge make assumptions about property that I don’t share. So my brain is on overdrive, and hasn’t reached the terminus of the inquiry.

I suspect that I subscribe to a weaker, or at least less expansive conception of property rights than most libertarians do; what I’m working on is how exactly to distinguish the view I hold from pragmatic/progressivist conceptions of property and planning on the liberal left. I think there’s a distinction to be drawn, but I haven’t worked through all of the relevant complexity. I’ll comment when I’ve worked more of it out than I so far have. I’m grateful to Taylor for giving me the incentive to clarify my thoughts.

Postscript: I guess it’s a bit misleading to say that I’ll “respond” to Taylor when I get a chance, since Taylor and I are basically agreeing. What I meant was that I’ll offer some substantive reflections in response when I get a chance.

The only comment I’d make right now, based on a small handful of early comments at BHL, is that Taylor’s critics (and by implication mine) are begging the question against both of us by making tacit but wide-ranging assumptions about the nature of property rights. I won’t speak for Taylor, but I don’t see any intrinsic reason why the existence of planning boards must violate property rights. Property rights could, after all, themselves be sensitive to the need for (government) planning. Libertarians could insist on strong (probably deontic) conceptions of property rights that function as bulwarks against any and all forms of government “interference” (aka “regulation”), but I’m not aware of a successful defense of such a conception of property rights, and don’t find the idea plausible (or even coherent).

Postscript, June 27, 2015: This lecture by Rick Porter of Georgia Tech’s School of Building Construction is a nice primer on zoning and planning in the U.S. from a generally Objectivist/libertarian perspective, from the 2013 Atlas Society Conference; it helpfully reveals both the strengths and weaknesses of that (type of) position.

The lecture starts out well enough, discussing the legitimate basis of zoning in the need for rights-based protections (first 25 minutes or so), but then gets side-tracked in that favorite Randian pastime, the accumulation of ideological horror stories (25-35 minutes). I don’t disagree with what he says there, but it’s a missed opportunity for discussing the real underlying issues in a sustained way.

He ends, unfortunately, with a descent into Randian-libertarian utopianism, suggesting that if we privatize all infrastructure and convert zoning restrictions into private deed restrictions, our problems are resolved. But what goes undiscussed, despite the quick reference to Locke, is the fine-grained content of private property rights: what is it that you own when you own something, like a piece of real estate? Is your ownership right so strong that it precludes zoning laws that prevent your imposing boundary-crossing externalities on others? He’s essentially asked that question around 54:00, but either concedes the legitimacy of zoning in his answer, or appeals to “the market” in a way that doesn’t really answer the question asked (his answer swings between those two claims).

Porter objects to zoning law as “pre-emptive,” but so are the laws of assault and self-defense against assault in the criminal code: an assault is a threat of imminent harm that doesn’t require physical contact, and a right of self-defense gives the victim the right to retaliate before contact is made (and physical harm inflicted), precisely so as to avoid the harms in question. I think the analogy carries over to rights-violative externalities and zoning. The end of the lecture seems to concede that zoning has a legitimate purpose, if properly conceived, but the claim isn’t really developed in the lecture.

That said, I think the lecture is well worth watching, if only for making explicit the facts that need to be dealt with as a preface to a sustained inquiry into the topic.

Here’s the 2014 follow up lecture. I’m “bookmarking” it here for relevance; I haven’t watched it yet.

Postscript, June 28, 2015: Last postscript for now: It belatedly occurs to me that Ronald Coase’s “The Problem of Social Cost,” Journal of Law and Economics III (October 1960) is the classic discussion of this topic, and well worth reading (or re-reading). Here’s a summary.

That said, I reject virtually every major assumption Coase makes in the article, even when I incidentally end up agreeing with this or that claim in it. Coase’s thesis (it’s not really a “theorem”) is often regarded as a critique of the legitimacy of rights-based planning, zoning, and regulation, but I don’t think it succeeds as one, and don’t think Coase thought it did, either. Robert Nozick’s discussion of “Prohibition, Compensation, and Risk” (chapter 4 of Anarchy, State, and Utopia) is in effect a philosopher’s attempt to improve on Coase, but I don’t think it succeeds, either. Nor, as I say in a different post, do I find Hayek’s arguments against “planning” coherent.

Given that, I’ve never quite understood the intensity and scope of the libertarian-Objectivist animus for “regulation.” The animus seems to stand or fall with the idea that all government regulation violates a ban on first-uses of force, but even apart from the conspicuous lack of an argument for the ban, along with the absence of an argument for its application to all government regulation, the principle needs more explication than it’s ever gotten: in order to grasp what the principle says, we need to know what counts as a first use of force, and the principle itself doesn’t tell us.

In any case, it’s not at all obvious to me that regulations designed to thwart (what their architects regard as) first-uses of force must themselves always be first-uses of force. They could be just what their architects say they are: non-rights-violative regulations designed to thwart rights violations. The examples Coase cites in his paper make clear that there is no shortage of potential candidates for regulation in the name of rights. If you reject his analysis, as I do, at least some of those potential candidates become actual ones, and ought to be regulated.

(The preceding comments may well have re-invented the wheel. See Matt Zwolinski’s excellent discussion of the same issues in “Libertarianism and Pollution,” in the Routledge Companion to Environmental Ethics. Differences of detail aside, I basically agree with the approach he takes.)

2 thoughts on “James Stacey Taylor on Planning Boards and Property Rights

  1. I very much like this post, Irfan! I think that you’re right that many of the critics of my (our) view are begging the question against us by assuming that PBs must vio;late property rights; it’s not at all clear that they necessarily do this. They might, for example, be conceptualized as a way of adjudicating between competing *claims* to property rights. I’m looking forward to your reflections!

    Liked by 1 person

    • Thanks. And yes, agreed: planning boards could be conceptualized as a way of adjudicating competing property claims. Or they could be conceptualized as setting things up ab initio so as to minimize the need for subsequent adjudication between competing claims.

      E.g., if I’m building a car wash next to your residence, and my car wash is on a slope (and your residence is in “the valley” of that slope), it’s predictable that the run-off from my business will wash onto your property. If we’re not going to have mixed industrial/residential uses, a planning board could serve to pre-empt the inevitable quarrel that arises when the run-off from my car wash floods your basement on a daily basis. At that point, when the car wash is built, and the water is flowing into the basement of the adjacent residence, adjudication comes too late. The whole idea of a planning board is to plan things so as to avoid boundary crossings like that from the start. Doing so is obviously preferable to waiting for the boundary crossing to take place, and then initiating a suit.

      The commentators on your post at BHL don’t seem to have read your original post, or my response to it, so a lot of what they’re saying seems to me irrelevant and beside the point. Neither of us were saying that planning boards should have unlimited powers to do as they please, much less that planning boards ought to violate property rights in order protect property values or freeze the construction of new housing. Just as property owners don’t have the right to do as they please with their property, planning boards don’t have the authority to do as they please with their authority. The relevant questions are how to draw the relevant lines on both sides, and whether planning boards can in principle function to enforce rights rather than violate them–not “What about planning boards that violate property rights for aesthetic or mercenary reasons?” Putting aside your comments and Matt Zwolinski’s, little of what’s being said there really connects with the relevant issue.

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