Category: reason

My new article, “Freedom Through Foot Voting” (forthcoming in the British public policy journal Economic Affairs), is now available for free download on SSRN. It builds on and expands some of the ideas developed in my recent book Free to Move: Foot Voting, Migration, and Political Freedom. Among other things, the article applies my framework for dealing with potential downsides of freedom of movement to the case of the Covid-19 pandemic, and other similar situations. My book, of course, was finished just before the pandemic began, so I was not able to address that issue there.

Here is the abstract:

Freedom of movement is one of the great issues of our time. Expanding opportunities for both international and internal migration can greatly expand freedom and opportunity for hundreds of millions of people. The same goes for expanding freedom of choice in the private sector. “Voting with your feet” in any of these three ways is also, in crucial ways, superior to ballot box voting as a mechanism of political choice.

In this article I summarize the key advantages of foot voting over ballot box voting, describe how they apply to the three major types of foot voting, and outline answers to several types of standard objections to expanded migration rights. I address these issues in much greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom, on which this article draws.

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From DZ Reserve v. Facebook, Inc., decided earlier this month by Judge James Donato (N.D. Cal.):

A hallmark of our federal judiciary is the “strong presumption in favor of access to court records.” Public access maintains confidence in the fair and impartial administration of justice, and protects the integrity and independence of the courts. This is why the business of the federal judiciary is done in open court.

In limited circumstances, there may be grounds for curtailing public access. This is an exception to the rule, and so a party requesting that a document or evidence be sealed from the public needs to present a good reason explaining why. A particularized showing of good cause is required to seal documents related to non-dispositive motions, and a compelling reason supported by specific facts is needed before the Court will consider sealing records involving dispositive motions such as a summary judgment motion.

Both sides in this litigation have filed a slew of motions to seal nearly every kind of filing in this case: discovery letters, supporting declarations, motions, scheduling stipulations, and even the complaint itself. All told, the parties seek to seal a mountain of records that ordinarily would be accessible to the public.

While the sheer breadth of the sealing requests prompts concerns, the main problem is that the parties often made a sub-par effort to justify their motions. Each side frequently offered perfunctory claims that a document contained “commercially sensitive,” “proprietary,” or “confidential” information relating to “internal assessments and analyses,” and other equally unilluminating statements. Such conclusory and unsupported formulations, which for example do not explain how a competitor would use the information to obtain an unfair advantage, are insufficient for sealing.

The sealing motions also violate our District’s local rules. “A sealing order may issue only upon a request that establishes that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law.” “The request must be narrowly tailored to seek sealing only of sealable material.” In this case, the parties ask to seal any document or record that even minutely touches upon Facebook’s products, and with little discernable effort to limit sealing to genuinely protectable materials.

For purposes of illustration, the Court highlights an example of the questionable sealing requests. Facebook seeks to seal large portions of plaintiffs’ Third Amended Complaint on the proffered ground that the reliability of Facebook’s Potential Reach estimate for advertisers is “sensitive” and “confidential,” and would cause competitive harm if publicly known.

Why that may be so is not explained. Facebook merely insists that unspecified competitors might “gain an unfair advantage against Facebook by exploiting details” about Facebook products. These allegations stand at the heart of plaintiffs’ claims, and sealing them would make this litigation virtually incomprehensible to the public. The fact that one or another party may have designated the Potential Reach information as confidential under the stipulated protective in this case merely begs the question of sealing.

This example is just the tip of the iceberg. The Court declines to expend its own resources on cataloguing the full extent of the sealing problems. The better approach is to return this to the parties for corrective action that follows our local rules, the Court’s sealing practices, and governing law. The Court would be well within bounds to order everything filed in the public record, but it will give the parties a second chance to make a well-supported request to seal a discrete number of records….

Any renewed administrative motion to seal must be accompanied by a joint declaration that states with particularity, and in a non-conclusory fashion, the factual bases supporting sealing under the applicable legal standard. Any disagreements should be noted in the joint declaration….

For any future motions to seal, the Court expects the parties will embrace this order and use the same approach. The Court advises the parties that it will restrict or bar the opportunity to file future motions to seal if a party shows again an inability to conform to the governing standards, the local rules, or the Court’s orders.

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A coalition of preservation groups in Orange County, California, is suing the coastal community of Laguna Beach in an effort to overturn a recent amendment to the city’s historic preservation ordinance that requires property owners to voluntarily opt in to having their homes considered a historic resource and all the restrictions that come with that.

“It would be unthinkable for the City to require owner consent to review biological habitat or wetlands during the approval process,” said Krista Nicholds, president of Preserve Orange County, in a press release. “State law recognizes that historic resources have comparable public benefit. Owner consent has nothing to do with objective standards of historic merit.”

Last week, Preserve Orange County, alongside the Laguna Beach Historic Preservation Coalition and Village Laguna, filed a lawsuit in the Superior Court of California, County of Orange arguing that Laguna Beach failed to conduct sufficient environmental review—as required by the California Environmental Quality Act (CEQA)—when approving its new voluntary preservation law in August 2020.

Supporters of the voluntary preservation ordinance counter that Laguna Beach had for years been relying on an outdated “historic inventory” when determining which buildings were historic resources. Homeowners were often unaware of their properties’ supposed status as a historic resource and thus were blindsided by the restrictions that come with that status when applying for permits to perform even basic alterations.

“They would make their planning applications and they’d just get ambushed by someone popping up and saying this is a historic resource,” says Larry Nokes, a Laguna Beach attorney who was an advocate for amending the city’s preservation ordinance.

Property owners “looking at a fairly simple window replacement or door replacement would be forced to get a historic assessment of the house at their expense and then find that they were limited at what they were able to do in their remodel,” he says.

“In 2011, I was able to hire a contractor to install new clad windows, fireproof the house with Hardback siding and drywall the interior walls. However, when I went to the city to pull a permit, I was told I was on the historic inventory and would have to install all wood,” wrote one Laguna Beach homeowner in a blog post published by Let Laguna Live, a group that supported the voluntary preservation ordinance. Not until October 2020, after the passage of the new preservation ordinance, was this homeowner able to obtain permits for these modest alterations, according to the post.

The conflict over what counts as a historic resource in Laguna Beach goes back to 1980 when the city created a Historic Resources Inventory of 852 pre-1940 homes.

In 1989, the city considered a historic preservation ordinance that would have automatically deemed anything on this inventory to be a historic resource. That idea, says Nokes, provoked huge opposition from homeowners at the time, so much so that the city council instructed city staff to amend this draft ordinance to make clear that it would “apply the historic preservation program on a voluntary basis only.”

Under that ordinance, homeowners could volunteer to place their homes on the Laguna Beach Historic Register—a separate list of properties from the historic inventory—and receive incentives for doing so.

But beginning in the 2000s, says Nokes, “the way the city started to apply the matter was that if your house was on the inventory you were considered to be a historic resource and that you as a homeowner had to prove to the city that you the house was not a historic resource.”

This presumption that properties on the inventory were historic buildings frustrated a growing number of homeowners looking to make changes to their property, says Nokes.

To remedy this problem, the new voluntary historic preservation ordinance passed by the city makes three main changes that protect the property rights of homeowners.

Firstly, it creates for the first time a comprehensive city-level definition of what counts as a historic resource. In order to qualify for that designation, a property has to be listed on the city’s historic register or on a state and national historic register. Secondly, it requires that property owners consent to be placed on the city’s historic register and provides them with incentives for applying to do so, including property tax breaks and relief from minimum parking requirements. Lastly, the new ordinance scrubs all references to the 1980 historic inventory from city regulations and policy documents.

The new law does not remove any properties from the city’s historic register. The ordinance still goes too far for preservationist groups who candidly argue in their lawsuit that many homeowners can’t voluntarily be trusted to maintain their properties as is.

“Property owners with plans to clear valuable coastal lots for new buildings are likely to oppose rather than consent to historic status despite the unique historic value of existing buildings,” reads their complaint. “Owners will not be required to explore options for the feasible, cost-effective expansion and restoration of historic homes…Laguna’s Historic Preservation Program will thereby facilitate needless, irreversible damage to [the city’s] charming beachtown character and historic legacy.”

CEQA requires that government agencies study “projects”—which include things like zoning or historic preservation ordinances—for significant environmental impacts before approving them. Should significant impacts be found, said agencies must mitigate them before approving a project. The law also empowers third parties to sue if they believe a project was approved without studying some environmental impact.

A 250-page study prepared for the city on its voluntary historic preservation program determined that it would not have any significant environmental impacts. Preservation groups argue that this conclusion was reached in error and that the city’s new ordinance needs to be put aside until an even more thorough environmental impact report can be performed.

Specifically, they argue that CEQA “protects the historic ‘built’ environment to the same extent as the state’s natural resources such as air, water, and forests” and that owner consent is wholly irrelevant to whether a property merits historic protection.

It’s not unheard of for preservationists to try to landmark properties as historic over the consent of their owners. In 2019, Denver preservationists attempted to landmark the long-standing Tom’s Diner in order to prevent the owner from selling the property to a developer as a means of funding his retirement, for instance.

The theory behind these efforts is seemingly that the value residents gain from looking at a historic building outweighs whatever plans the person who actually owns that building might have for their property. The lawsuit filed against Laguna Beach’s preservation ordinance adds another wrinkle to this idea by arguing that buildings are every bit as pristine as nature itself and thus should be afforded the same level of protection.

Nokes argues that preserving truly historic buildings and property rights need not be an either-or proposition.

“People who are passionate about historic preservation are passionate about it. There are other people who have a piece of real property and they want to use that for their family,” he tells Reason. “The ordinance does nothing to dampen the enthusiasm of the preservationists, but it also doesn’t do anything to place the other owners in a state of real estate servitude where they have to maintain the property as a historic resource or be subject to criminal penalties.”

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A Pennsylvania couple is fighting an inane local ban on raising a handful of ducks and chickens in their backyard.

In August, officials in Wellsboro, Pennsylvania, warned residents Anna Wales and Raquel Rogers that they’d have to get rid of the four ducks and four chickens they housed in their backyard. A subsequent hearing affirmed the ban.

Adding to the controversy is the fact Craig West, the borough council president, who lives on the same street as Wales and Rogers, reported the couple and their flocks to the city.

Wellsboro’s poorly written code prohibits keeping honey bees, poisonous reptiles or spiders, or “any live swine or pig, live chicken, turkey, pigeon or other domestic or wild fowl, goats, alpacas, and other species.” The Wellsboro council says it’s concerned that allowing residents to raise livestock in their backyards will lead to complaints over noise or odors.

Wales and Rogers, who’ve already been fined $7,000 for refusing to comply with the chicken ban, are scheduled to have their request for a variance heard before the Wellsboro Borough Council on Wednesday. A court date on the matter has also been scheduled for next week—though the couple’s fines continue to accumulate. 

Wales and Rogers are fighting those fines. I don’t blame them. According to a report at NorthCentralPA.com, the couple say they were willing to find a new home for their ducks and chickens. But reports also say West and another councilor urged them to rezone their property so that the council could take action on backyard livestock. So Wales and Rogers say they did just that. 

“However, the council then failed to pass a vote allowing birds in rural residential,” the report indicates.

People choose to raise chickens in their backyard, as I explain in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, to provide themselves not just with fresh eggs but also with free fertilizer and pest control. And Wellsboro, quaint and rural, seems like exactly the sort of place one might encounter owners of backyard chickens and ducks.

In fact, just last year the Audubon Society designated Wellsboro as “a Bird Town.” Audubon Bird Towns, the group says, are so designated because they demonstrate “a healthy, more sustainable environment for birds and people.” Ironically, the group presented the Bird Town designation to none other than Craig West, the same borough president who seems intent on making Wellsboro a bird-free town.

Conflicts that center on raising small animals for food in one’s backyard aren’t new. In a 2016 op-ed in the Des Moines Register, for example, I highlighted the plight of Clare Heinrich, an Iowa high schooler whose backyard beehives—which Heinrich used to produce honey that had won three blue ribbons at the Iowa State Fair—had run afoul of local law in Urbandale, Iowa, that deemed honey bees illegal livestock. The city ordered Heinrich to remove the hives or face thousands of dollars in fines.

Thankfully, even as Wellsboro and Urbandale treat small-scale hobby farmers as pariahs, other cities and towns are responding positively to residents’ interest in raising animals for food. Earlier this year, for example, residents in Pelham, New Hampshire, fought back against a 2019 ordinance that banned many backyard livestock animals. In March, in a “landslide” vote, the town repealed the ban.

Perhaps surprisingly, many bigger U.S. cities today feature more permissive rules for raising small food animals than do many smaller cities and towns—even ones such as Wellsboro that are located in rural areas. As I detail in Biting the Hands that Feed Us, backyard poultry ownership has spread across the country, from Los Angeles to Miami to New York City. And cities such as Seattle, Denver, and Salt Lake City have passed good rules in recent years to facilitate that ownership. 

To oppose bans on owning and raising backyard chickens, as I do, is not to say that the practice can’t nor shouldn’t be regulated. It can and should. For example, nearly every city ordinance I’ve read that allows raising backyard chickens also sets reasonable ground rules for doing so that includes prohibiting homeowners from raising noisy roosters.

Indeed, I speak out in favor of such reasonable limitations in Biting the Hands that Feed Us. Sadly, though, prohibitions of backyard poultry stretch well beyond reason.

“Bird law in this country is not governed by reason,” lamented renowned (though sadly fictional) Pennsylvania bird lawyer Charlie Kelly several years ago. As Wellsboro’s campaign against fresh eggs makes clear, Kelly’s complaint still rings true today.

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1/23/1915: Justice Potter Stewart born.

 

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