Good Guys Win!

Randy Bailey, the owner of the Mesa, Arizona, brake shop featured in our recent story about eminent domain abuse, has won his case against City Hall. (The case was featured last Sunday in a great segment on 60 Minutes.)

Special props to the Institute for Justice, the DC-based libertarian law firm that represented Bailey.

Comments

[Keith]

Fyodor:
If the deed lists an easement for sidewalks (or street parking), and in my experience they often do, possibly spelling out maintenance requirements or referring to a mutable local code, well then, no problem in my book - everything would appear to be contractual.

Facade maintenace can reasonably be required based on risk - IE, compulsion to repoint your brickwork because chunks of masonry are falling to the street.

As long as enforcement is generally even and not politically motivated, and new maintenance requirements are not forced on existing properties (there's my big out, but it also means I'd want specific details before considering any given case... there was a misplaced property rights hue-and-cry a few years ago. A farmer in PA sold or donated a conservation easement promising no new construction to Nature Conservancy; then another buyer bought the farm, and built a new house elsewhere on the tract. Nature Conservancy sued, and the state of Pennsylvania demolished the house. The new buyer screamed "property rights", but here, the operational property right was owned by Nature Conservancy, and I support their defense of their rights.)

[Keith]

Found a link to my last example.

My bad - it wasn't Nature Conservancy, it was "French and Pickering Creeks Conservation Trust". It's sad for the secondary owner, but the outcome reads correctly to me.

http://www.prfamerica.org/ConsEaseUnexpectedLegacy.html

[fyodor]

Keith,

Hmmm, maybe you're right that if it's in the deed, then it's not technically coercive to make the property owner responsible. But it's still a murky area of law to this layperson, I mean, who are you contracting with to do this? The person you're buying the property from certainly wouldn't care! Do you have a legal choice not to have this included in the deed? If not, then I believe we're back to coercion!

As for the danger of falling masonry, that has nothing to do with what Joe said (and what I was responding to) anyway. Joe did bring up a landscaping ordinance, which I suspect could only be justified on aesthetic grounds, not on safety. If some of what that would cover is based on safety, well then (maybe*) it should have been there all along. The context of Joe's post was how to manage the planning of the neighborhood to bring in more desirable businesses. Safety issues are clearly a different matter.

*I say maybe cause on a strictly libertarian basis, one should only be held accountable once harm is done rather than be subjected to theoretical preemptive regulation. I'm begrudgingly willing to bend on that in extreme circumstances, so I'm not sure where I would stand on this falling masonry issue.

[arjay]

What about that mayor of Lakewood, OH? I guess I just dreamed about "us" winning the Cold War.

I see, joe, so you'd just harrass him, mandate expenses, raise his taxes etc. until he gets the message that low class scum like him had better leave town. Frankly the way the Mesa fathers tried to steal his land is more honest.

I didn't see any inoperable cars in any of the views shown on 60 minutes, but heaven forbid we should see how someone makes his living.

Both the cases they presented were nothing but State sanctioned theft, and it's a good thing that IJ is there to stop some of this. Altho they only catch a few of the thousands of abuses that occur.

[Anonymous]

If you notice falling masonry on a commercial property, chances are that commercial endeavor will be out of business rather soon. Once the property taxes are defaulted on, eminent domain is pretty much a given (and not likely to be opposed by anyone). But often the demolition costs are more than the real estate is worth. Lots of the eminent domain takes place because someone doesn't want to pay market price for the property.

joe's mention of "vacancy spreads" and "blight" is rather immaterial however. One man's blight is another man's opportunity to buy land real cheap. The difference is that joe's aesthetic standards are trying to create blight rather than remedy it. If he had seen the 60 Minutes piece, it would be obvious to him.

I grew up in what would now be called a blighted area, it wasn't blighted when I lived there but most of the residents of the area fled areas that became blighted. I can pinpoint the next areas to become blighted before they happen, all one has to do is look at the political history of the area, expecially the redistricting and the housing authority schemes, to see which areas are earmarked for blight. Blight doesn't just happen, it's often orchestrated.

[joe]

"I see, joe, so you'd just harrass him, mandate expenses, raise his taxes etc. until he gets the message that low class scum like him had better leave town."

No, I'd just make him keep his property looking decent. The businesses on his left and right that are doing the right thing don't need to see their business and property values decrease because of a deadbeat. Yes, aesthetic judgements depend on a values decision. But ultimately, so do property rights. Debate this in philosophy class all you want, you still shouldn't be able to drag down people's neighborhoods or businesses because your lazy. This is assuming that the appearance of the property is the problem; in the 60 Minutes case, it seemed like they just thought a body shop was, in and of itself, undesirable, regardless of the state in which the property was kept. Maybe that's true, but it's still not enough of a reason for a taking.

Tax title takings aren't eminent domain. You don't have to show public use at all, just owed taxes and sufficient notice. The laws were explicitly written so that the government could sell off property that people have abandoned. You want the government to own every property it takes for taxes?

In many areas of the country, the sidewalk is located within the public right of way. In fact, especially in newer subdivisions, the government often owns several feet of people's front yards. Telephone poles and mailboxes, for example, are located within the right of way, even if you have to go beyond them to mow the lawn.

anon raises some good points about abuse of the process (trying to create blight has actually happened, especially in old Urban Renewal days), but her libertarian zeal blinds her to the difference between use and abuse.

[Warren]

Party hats and noisemakers! Chalk one up for our side. We even got some decent publicity too! Victories this sweet are rare enough for us freedom lovers, so I'm celebrating tonight.

Oh yeah... Joe, fuck off and die you tyrannical scumbag.

WHOO HOOO Go Get Em I J

[fyodor]

I don't need a philosophy class to know that when my next door neighbor gets cited for having a couch on her porch that she's been wronged and that oughtta be no one else's business.

[joe]

Obviously, there are shades of grey here, fyodor. A couch on a front porch is different from a dozen semi-demolished cars in a parking lot with no visual buffer for months on end.

Warren, you'll understand better when you have some property to have rights over.

[arjay]

No, joe

This is not a philosophy debate these greedy bastards were just trying to steal a guys property plain and simple. You admit that you cannot find an esthetic issue here, and if you check other IJ cases you will find the same thing, somebody found a neighborhood of small businesses and decided to steal them. (Note to Kevin Carson: maybe if IJ had been around in 196? things might have been different with the WTC, what do you think?)

In regard to taxes most people whose property taxes are raised beyond their ability to pay (in the case of a business earn enough income at that location) sell before their property is seized. Property taxes are the same kind of blunt instrument used by elites to force the tacky low class out of their properties and businesses.

What do these folks need a brake shop for anyway, "if I need my brakes done, why, I'll just take my car to the Mercedes dealer, so we don't need this kind of business here".

It's not up to the elites to decide whether someone's earning enough money, or whether one their friends can use the property better, or whether it's not pretty enough. Show me a "revitalization" plan and I'll show you some connected guys planning it over martinis at the country club. Yeah, friend of the little guy, doing well while doin' "good". Yeah we need more of that "public spirit".

And whose money are you going to use for "a facade improvement loan" anyway? The money left over after the new sports stadium, the subsidies to bring the fortune 500 company to town? And where does that money come from? Most cities wouldn't be in these financial holes that they need to "revitalize" (see the Lakewood story) if they weren't spending so much on making the city "liveable" (translation - making the city fathers political careers and private fortunes).

[Warren]

Sing it arjay!

[fyodor]

Joe,

Sure they're not exactly the same, and of course I knew that when I made that post. But, while you ridicule fears of abuse as being caused by the blindness of "libertarian zeal," this is how I actually see this type of law being used in the real world (my world, anyway), and I like it not. I think the neighbor in question was ratted on by another neighbor (a Republican, at that!) who didn't like her dandelions. Hurts his property value, y'know!

[arjay]

In the interests of full disclosure, I have to state that in one of my job incarnations I wrote many legal descriptions that where used to take land for road projects, and am still in the business of designing roads.

That said, in spite of nearly 40 yrs of building or designing roads and bridges (highway, railroad and even pedestrian), I have serious reservations about the practice of eminent domain, even for the express constitutionally designated purposes, and those reservations grow with time. Especially given the political drives behind so many road projects and the entirely unsatisfactory method of financing them.

The takings referred to in this case however is not constitutional. Taking land from one private owner and giving it to another for their private gain is not a "public purpose".

[Gunner]

This is a good day to win.

[joe]

Good for him. These laws were never intended to be used to condemn viable businesses, just because another business is more desirable.

Wrong tool for the job.

[Mark S.]

Hoody hoo! Score one for our side!

[Rick Barton]

Kudos! Lets support the Institute for Justice so that we have more victories for liberty!

[Lefturn]

Just like greedy libertarians to fuck up planning for the community.

[Argyles]

Just like leftists to legitemize theft from one by another, so long as that theft is approved of by the state.

[joe]

I'm a lefty urban planner, and I think the City was way out of line.

[fyodor]

Good for you Joe! Though I wonder what "tool" you would use instead!

Lefturn, how is our "greed" being satisfied by sticking up for this brake shop owner? You think we're all getting paid off or something??

[Jade Monk]

Left Urn,

You should be happy. After all, as the article says, the action was a form of corporate welfare. And we all want to stick it to the corporations, right?

[Kevin Carson]

Lefturn,

Just like a "progressive" to defend robbery of the little guy to pad the profits of the big buy, and use a weasel word like "community" to describe such welfare for the rich.

But that's what "progressives" have been doing for the last century, for the most part: whoring out to big business interests in the name of helping the little guy. Our present corporatist economy, in which the profits of the Fortune 500 are maintained by the State, is the creation of "progressivism."

What "left-wing" cause are you gonna speak up for next? Maybe the government intervening so a real estate developer can bulldoze some old people's homes for a public golf course? The "left" has moved quite a bit to the center, it seems.

[joe]

"Good for you Joe! Though I wonder what "tool" you would use instead!"

Work around him. Pass a landscaping ordinance. Put in new sidewalks, and vigorously protect them from encroachment. Make sure his curb cuts are no bigger than they need to be. Plant trees, if there's any room in the right of way. Offer him a facade improvement loan. Require automotive uses to screen inoperable cars from the public way with a fence or shrubs.

Feel better?

[thoreau]

Is it possible that lefturn was being sarcastic, and that in fact he agrees with us?

[fyodor]

"Feel better?"

Hmmmmph! Some of your prefered tools are just as coercive as condemnation. How are they more fair to this "viable business?" Others would be fine were they not dependent on other people's coerced tax money. But oh well, of course taxes are here to stay. Sure, go ahead and plant some trees...

[joe]

Putting your car on the sidewalk so people have to go around it is just as coercive as a cop making you move it.

But setting standards for property maintenance is not "just as coercive" as kicking the owner off the property entirely.

[Perry]

Eminent Domain just like 'Public Health / Safety / Welfare Standards' are widely used and abused by municipalities. Whole areas and buildings that are structurally sound are said to be blighted and in need of 'economic development'. Health/Safety/Welfare standards are used to justify anything from 3 acre zoning to banning backyard storage to excessively wide street widths and many other things.

Noone would argue that a burned out crackhouse that is stuck in title limbo isn't a viable candidate for eminent domain or that light and air are necessities for rooms in dwelling units. The problem here is how do you take rules that may be necessary on a base level and prevent those in charge with co-opting it for any and all uses that they deem necessary?

[joe]

The thing is, Perry, vacancy spreads. There really is such a thing as blight. A development patten that is functionally obsolete (say, 45 units of housing in three cobbled-together four story tenements with 0 parking spaces) doesn't just fail in the market. It's presence becomes a market condition for the immediate neighborhood, one that lowers the value of otherwise-viable properties around it, and creates a viscious circle. Even if the buildings are still structurally sound.

It can be tough line to draw, though the Mesa case is clearly over it.

[fyodor]

Joe,

Re: not as coercive. The coercive part is the penalty for not obeying. Telling someone wipe your nose or I kill you is just as coercive as telling him to get out of town or I kill you.

As for the car on the sidewalk, that's the old bugaboo with public property. Technically, sure, if the city owns the sidewalk, they can tell the guy to keep his car off it. Just don't make the nearest property owner have to pay for the upkeep of that sidewalk, as cities often do!

[Joanne McNeil]

Have 60 Minutes gone -- if ever so slightly -- libertarian? There seemed to be good Hayekian fairies behind Sunday's episode (the only one I've ever watched.) I tuned in for IJ's mention, but before that was a good look at the Tulia case.

[Joanne McNeil]

Has 60 Minutes gone -- if ever so slightly -- libertarian? There seemed to be good Hayekian fairies behind Sunday's episode (the only one I've ever watched.) I tuned in for IJ's mention, but before that was a good look at the Tulia case.

[Jason Ligon]

Zoning and planning regs mostly drive me nuts anyway. They are based on the fallacious notion that you have a right to not have the market value of your house affected by the local housing market.

Do I get some sort of guarantee when I buy a stock that it will never be depressed by someone else dumping similar issues?

[Jason Ligon]

Pardon my split infinitive.

[Douglas Fletcher]

I'm wondering how to get rid of the judge who ruled in favor of the city of this one. What an asshole.

[joe]

arjay,

You raise some important points, especially about sports stadiums and country club types drawing lines on maps. But you conflate the project-driven ediface complexes of politicians and big shots with actual urban planning. I'll guarantee that none of these stadium projects were initiated in a planning office.

Your comment reminds me of freshman pacifists, who equate US Marines with Hamas, because they both shoot and other people and try to blow them up.

[arjay]

OK, joe, White Flag, Man.

Let's have a rational discussion about this. I'll bet after some shouting "'joe you stupid SOB'" "'arjay, you ignorant slut'" we might actually reach some level of agreement. Actually we have already, I know you're not actually in favor of stealing land from honest brake shop guys, but I will needle you til I find out what you do want to do.

Joe, as much as I like bulldozers, (I really do, I have actually operated bulldozers, its really neat knocking things over, as well as supervising bulldozer operators) I also like nature. I inherited from my father a conservation ethic that is both deep and wide. I also like hunting and I realize that anti-hunting sentiment also runs wide and deep.

The fact that you take the time to read REASON indicates that you are willing to think about your planning decicions.

I also have to face the fact that I work in a "planning office" too. (see my earlier post 6:39, 10/2) and I have to face the fact that to some extent we were arguing past each other (as in you don't really want to steal the brake shop guy's land.)

[Geyer Laura Talley]

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