Perpetual Peace

I wonder what anyone out there thinks of this issue, especially from a libertarian-type property rights perspective:

I live out in the country—granted, the countryside of New Jersey, but still, in a semi-rural area. The town I live in, Readington, is quite large (48 sq miles), and contains a fair bit of open space, along with a bunch of large-scale property holdings.

One of the owners of one of these larger plots owns a plot large enough to accommodate a small jetport—which is what he wants to build on it. The plot in question already has a small airport on it, intended for private propeller-driven planes, but the owner wants to upgrade the existing airport to the equivalent of a regional jetport for some of the smaller commercial airlines.

Predictably, area residents have objected to his project on grounds of traffic and noise: a jetport will greatly increase the amount of traffic in the area, and shatter the peace and quiet to which residents have become accustomed (aka, “our rural way of life”). Plus (they continue) a jetport is just plain “inappropriate in a residential area,” and “unnecessary,” given the (relative) proximity of other regional airports to central Jersey.

We’re relatively new to Readington, but apparently, the dispute between property owner and area residents has gone on for decades. As a local resident myself, I have a certain sympathy for the objections to the airport upgrade. The one big attraction of moving to the country, after all, was peace and quiet: the New York-New Jersey metro area is loud and obnoxious in ways that bucolic Hunterdon County is not, and I have to say, I like it that way.

I mean, frankly, I’ve done my time living next to airports. I just spent the last eleven years living under the flight path to Newark Airport (sorry, I mean Newark Liberty International Airport). It got old after awhile. As a grad student,  I spent a few years living next to Michiana Regional Airport (sorry, I mean South Bend International Airport). That, too, was a pretty unpleasant affair: the noise of jets landing and taking off at all hours made my apartment almost unusable. (The upside was that I could walk to the airport.) And you’ve already heard me yammer on and on about my noisy, dogshit-hoarding neighbors back in Bloomfield. I figured it was time for a change. I mean, Cicero and  Jefferson had country estates. Why not me?

Noise is an intrusive physical phenomenon–a pollutant–so if other pollutants can be regarded as rights-violative boundary-crossings (as apparently they can), so, goddammit, can impositions of unwanted noise. If impositions of unwanted noise are rights violations, well then, they can be stopped, and since jets are really loud impositions of unwanted noise, it somehow ought to follow that they can really be stopped. The noise-as-property-rights-violation thesis seems to imply that area residents are right to veto the building of the airport on grounds of noise, even if they end up being wrong about everything else. Which all seems to point in the direction of shutting down the airport.

But could it really be that easy? No, it could not. There’s something more than a little problematic about the idea that rural folk are somehow entitled to perpetual peace and quiet simply because they happen to live in the country, and have the legal power to keep development at bay in a way that would be laughed off the stage in a real town or city. (For an explicit book-length defense of this entitlement, you can’t beat this little book, which spells things out with offensive, aristocratic clarity.) Is peace and quiet a path-dependent phenomenon, so that you’re entitled to it only if you already have it, and are entitled to more, the more you have? I mean, at first glance, being in possession of the relevant thing, I’m ready to sign on. But at second glance, the whole thing looks a lot like…the essence of aristocratic privilege.

The larger point involved here is that it’s not clear how to think about property rights in or entitlements to peace and quiet, or how to think about noise as a rights violation, assuming it is one. On the one hand, noise is an unavoidable feature of human life, as are unwanted impositions of noise. Life, progress, and fun all require noise, and there’s no feasible way to internalize the whole of the externality involved. So no one has a right to total and perpetual silence, not even me.

But noise impositions have a limit, too. I can’t just plug my guitar into a Marshall stack at 4 am some fine Friday morning, open the windows, and play pentatonic scales at top volume for the next few hours. And this is apart from how badly I play them. Forget electric guitars: you can’t even run a lawn mower or leaf blower at that hour. Famously, in Islamic countries, the muezzin sounds the melodious (well, some think it melodious) call to prayer, loudly, five times a day, starting at dawn. You can’t feasibly call it “noise pollution” when you’re living in such a country. But you sure AF can when you aren’t.* Even the spectrum between total silence and outright cacophony presents a host of problems, as anyone who has lived in a downstairs apartment can attest.

Yes, I know: lawyers have clever fixes for all these problems, from zoning to contract remedies. And then there’s the common law and Coase’s Theorem and what not. But there’s a kind of ad hoc quality to all of this legal mumbo jumbo. In the absence of a principled account–a real Normative Theory of Noise with Application to Rights Theory–the remedy seems to be to grab at the levers of power and get what you can, however you can. I’m inclined to think that we can do better, but I’ve never seen the kind of principled account we truly need (and deserve).** Not that I’m about to write one.

Anyway, Readington Township, having exhausted its legal remedies to stop the airport outright, has now approved a plan to acquire large swatches of land around the airport by eminent domain, marking these would-be acquisitions permanently as “Open Space”–the strategy being to box in the would-be airport in ways that make it harder to develop as a viable commercial property (throwing some dubious environmental rationalizations into the mix). The more boxed-in the airport is, the harder to access; the harder to access, the less attractive as a commercial property. The MO, I assume, is to discourage the owner’s attempts at developing the property so as to induce him to give up on it: death by a thousand legal cuts.

Local residents seem pretty unanimously to think that Readington is infantilizing the property owner with the legal equivalent of cooing noises, but as far as I’m concerned, Readington’s strategy seems just as mercenary and objectionable as the most objectionable features of the airport proposal itself: the use of eminent domain violates property rights even more obviously than the noise of the jets would, and the boxing-in strategy, while not quite a rights violation (I suppose), seems problematic in its own way.

Even if we set aside the use of eminent domain, it’s not clear as a matter of general principle that one property owner should deliberately be allowed to box another one in so as to make the one owner’s plans (commercial or otherwise) unviable. It makes things worse that the one “property owner” doing it is a local government that depends for its revenue on the property taxes of individual residents, including taxes paid by the airport guy himself. This seems to imply that Readington could in principle box anyone in whenever there was sufficient political pressure to do so, as could any other town, or, come to that, any other relevantly similar corporate entity. Do New Jersey municipal governments learn their tricks from the Israeli occupation, or is it the other way around? I’m not sure, but I’m not sure it matters.

While I’m not sure who to root for or against, I don’t think neutrality is feasible, either: either a jetport will be constructed, dumping noise pollution directly into my home; or Readington will do its best to box the jetport in, scuttling the project with my tax dollars, in my name. There doesn’t seem to be a third alternative, and I have a stake in both of the two live ones.

Thoughts?


*Before you put a fatwa on me, let me just clarify: I like the adhan. I do. I just think there’s something problematic about commandeering public space five times a day in God’s name. During Ramadan, the morning call to prayer can go on for hours, starting at 2 am and ending around 5 am. I mean, come on. If this is what God wanted, would he have invented sleep?

**But as one of my ex-wives used to say: “Did you look?” No, alas, I hadn’t. A quick look reveals Yet More Fucking Things I Haven’t Read, as for instance, Robert C. Chanaud’s Noise Ordinances: Tools for Enactment, Modification, and Enforcement of a Community Noise Ordinance, in all of its 277 page glory. Then there’s Fred Roberts’s sadly unheralded Measurement Theory, with Applications to Decision Making, Utility, and the Social Sciences (Addison Wesley, 1979), doubtless a masterwork of accessibility, with its “applications of measurement theory to social problems and decision-making problems involving air and noise pollution,” inter alia. And though I haven’t quite read it yet, there is, more recently, Marrieke Borren’s “Human Rights Activism and the Politics of Smell and Noise,” Netherlands Journal of Legal Philosophy, vol. 46:1 (2017), pp. 4-12, which, despite its enticing title, fixates on the noise and smell pollution produced by migrants and refugees–rather than my adversaries, jet planes and cars.

At the end of the day, I guess, there’s always repose to be had in this.

4 thoughts on “Perpetual Peace

  1. Pingback: Nightcap | Notes On Liberty

  2. “especially from a libertarian-type property rights perspective:”

    I believe this was addressed fairly directly by Rothbard back in 1982 (and maybe prior).

    Law, Property Rights, and Air Pollution, Cato Journal 2, No. 1 (Spring 1982): pp. 55-99.

    https://mises.org/library/law-property-rights-and-air-pollution-0

    Relevant section:

    “Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

    “Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an ‘easement right’ to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

    “On the other hand, if the airport starts to *increase* noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.”

    I’m not quite sure what you mean here: “There’s something more than a little problematic about the idea that rural folk are somehow entitled to perpetual peace and quiet simply because they happen to live in the country, and have the legal power to keep development at bay in a way that would be laughed off the stage in a real town or city.”

    It seems that almost any property claim is problematic to someone else if that property claim interferes with something they want to do. But I wouldn’t say that property rights are problematic in an agent-neutral sense.

    Do you mean that normal economic development would be halted or slowed and that this would lead to a lot of other problems and that people’s property rights should not be honored to the point where they end up harming the entire society? Or something else?

    Liked by 1 person

    • Thanks, Nathan, that’s very helpful. Rothbard’s view is in effect a Lockean justification for the legal doctrine of “coming to the nuisance.” I’ll have to print that out, read that through, and think it through (I don’t have a printer at home). At that point, I may have more to say. But a quick comment for now.

      I infer from the passage above that Rothbard’s view ends up favoring Readington. The airport (Solberg Airport) was initially built in 1941, when Hunterdon County was much emptier than it is now; much of the County still remains rural or semi-rural. On Rothbard’s view, if we assume that the original acquisition of the land for the airport was legitimate, so was a certain noise level, X. If X was justified, I guess it remains justified in perpetuity, but can’t be exceeded, in which case the bid to expand the airport and exceed the original noise limit becomes a rights violation.

      I’m not sure how the owner’s attempt to expand would be handled under a Rothbardian anarchy. I guess the strategy of buying the land around the would-be jetport would be justified as self-defense against a rights-violation-in-the-making? With a municipal government in place, the only approximation to Rothbard’s view is to have Readington Township acquire the properties around it, to stop the jetport from being developed. Whether that’s the right approach or not, it certainly resolves the problem in a clear way; it can’t be faulted for indeterminacy.

      To answer your question about the passage of mine you quoted, I think I was conflating two different claims, and asserting both simultaneously. On the one hand, I was saying that it seems unfair that rural folk are entitled to stop noise-creating development by citing the noise it would make, on the grounds that since they already have peace and quiet, they’re entitled in perpetuity to the peace and quiet they already enjoy. Whereas city dwellers are entitled to no such dispensation, precisely because cities are noisy. Since rural dwellers have peace and quiet, they have a property right in it, and are entitled to use that property right to stop development around them. Since urban dwellers already dwell in noise, they have no such property right, and lack that entitlement.

      Reflecting on the Rothbard view, however, that doesn’t seem like such a cogent worry; I just seem to be objecting to the unfairness of inequality in property holdings as such. It’s easier to make money if you have some, but that isn’t by itself an objection to the fact that some people have more money than others. Maybe the same applies, with appropriate changes, to peace and quiet. Those who have it are entitled to keep it.

      The other thought I had in mind, however, was that where I live, people seem to believe that they have a property right in what they like to call “our rural way of life.” This is an open-ended, ad hoc concept whose only purpose is to stop development in the name of holding onto some commodity or resource that is (supposedly) collectively owned (land, water, development rights, noise, air quality, wildlife, etc. etc. etc.). Local and state governments are then given monopolies in these resources, and are rigidly allowed to control access to them. What this means in practice is that you can’t build or do anything without official permission. Sometimes the justification is safety, but often it’s “the preservation of our rural way of life” on the assumption that by living in a rural hamlet, we have all homesteaded a “way of life” and can declare any encroachment on our “way of life” a violation of our property right in that “way of life.”

      The book I mentioned in the post, Mary Anne Adams’s Illusions of Rural Character, is an explicit, 130 page defense of this point of view. It treats development almost literally as an “invasion,” using the baseline of the rural character of the county several decades before the book was written (1999). Increases in population growth or population density over that baseline are treated as though they were rights violations subject to government prohibition. This is the result:

      https://www.mycentraljersey.com/story/news/local/development/2019/04/01/readingtons-affordable-housing-quota-pretty-frightening/3310016002/

      People around here are afraid of affordable housing. They have the luxury of not having to fear unaffordable housing. I wrote about this here in the fall. Though I voted for the Democrats back then, the Democrats don’t differ from the Republicans on the essential issue, so I doubt I’ll vote for either this time around.

      One puzzle I’ve always had about views like Rothbard’s is how exactly to mark a principled distinction between the granting of easements on the one hand, and municipal zoning and planning on the other. Rothbardian libertarians favor easements, but oppose zoning and planning, but it seems to me that easements lead to–ease into–zoning and planning. Zoning and planning are just pre-planned and coordinated easement-granting, aren’t they (or else are a method arranging things so that a problem that would otherwise require an easement is avoided)? Whether you’re an anarchist or not, once you grant the legitimacy of easements, it seems to me that you’re granting the legitimacy of what we now call municipal zoning and planning, or at least some functional equivalent of those. And yet libertarians seem uniformly opposed to zoning and planning. This probably reflects my own ignorance of the relevant issues; I’m just recording the fact of my being puzzled about things.

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      • “… in which case the bid to expand the airport and exceed the original noise limit becomes a rights violation.”

        I think that’s right, though of course, this could be resolved by various means. But if surrounding owners are unwilling to sell their right (or the airport isn’t willing to pay as high as they demand), then that’s about the end of it until something changes.

        “I guess the strategy of buying the land around the would-be jetport would be justified as self-defense against a rights-violation-in-the-making?”

        I think the larger lesson for businesses would be to anticipate future expansion and make a cost-analysis of how much to invest now in buying up land that can’t be used versus using that money in current operations and hoping that by the time you’re ready to expand, you don’t have others moved in close enough to stop you.

        Part of the issue here is that if you have “regime uncertainty,” it may not be possible to efficiently plan such things. No one expects the Spanish Inquisition, and even less so a Rothbardian anarchy. So, it may be that businesses spend more than they would have because of uncertainty about how regulations may change in future, which makes them less likely to survive in the short-term.

        I don’t know how legitimate a Township’s actions could be on this perspective since we’re talking about an entity that is potentially the greatest rights violator (from a Rothbardian perspective) taking on the role of rights protector. There’s no easy way to resolve that tension, even if we generally find the result what we would have wanted to happen.

        “Reflecting on the Rothbard view, however, that doesn’t seem like such a cogent worry; I just seem to be objecting to the unfairness of inequality in property holdings as such.”

        I think it could be a cogent worry from a Rothbardian perspective in that the ways in which property allocations occur involve a great deal of corruption along the way. So, property claims as they exist are not automatically valid just because they’ve been that way for a while. You would have to take into account the actual history of how they arose and decide if there’s anything about how people came to be surrounded by noise and pollution that was actually a violation of their rights.

        In the case of cities specifically, definitely read Rothbard’s article to see what he says about air pollution. I would say that city dwellers have not simply had different property holdings, but that their rights to not be subjected to pollution aggression have been systematically denied. So, it’s not so much that rural types are super privileged as it is that city dwellers are super oppressed. (And I’m sure you’d agree that the way to resolve such a discrepancy is to start treating rural dwellers in a similar manner so that the misery is evened out.)

        “One puzzle I’ve always had about views like Rothbard’s is how exactly to mark a principled distinction between the granting of easements on the one hand, and municipal zoning and planning on the other.”

        I don’t know as much about these issues as I would like to, so take my comments in that spirit as mostly speculation about how to apply these ideas. But my impression is that the difference would be this: Rothbardian easements are more piecemeal and particular and mortal (meaning, they have but one life to live), whereas municipal zoning is more centrally planned, affects entire zones rather than individual owners, and can be endlessly revised, lapsed, and renewed again.

        So, for example, a city code might make a certain area of town off-limits to strip clubs, and this might generally reflect the wishes of the current residents of that area. But the city also has control over a lot of other things such as street access, lighting, police (dis-)services, and so on. And those things may also have an effect on what kinds of businesses start in particular areas.

        It seems that under a Rothbardian system, people in a given area might still have reason to not want a strip club next door, but the reasons why it wouldn’t happen would probably be more practical and social than legal. The effect might be almost identically the same, but the upshot might be because it would turn out to be a bad business decision because of the various costs of doing business that would not be outsourced to the city (and thus, indirectly, the taxpayers) rather than because the city just decided to make it illegal.

        I don’t know how well I answered your question, but as I say, it’s not something I know a great deal about.

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