Who Cut Down My Tree?

Tim Kowal 42 Comments

One of the disputed trees. In a recent neighbor dispute, retired baseball All Star John Olerud petitioned his local board of adjustment in Washington to force his neighbor to cut down a rare Chinese pine, worth $18,000, so Olerud could have an unobstructed view of the Seattle skyline, improving his own property’s value by $255,000.  Ilya Somin at Volokh Conspiracy talks about property rights issues involved in the story.

What I’d like to ask is: Who’s to blame here?  Is this outcome the result of toothless judicial protection of property rights?  Of the lack of statutory protections?  Of local ordinances that subvert rights to economic value?  (Bear in mind that most state and local governments derive substantial revenues from property taxes, which are tied to property value, giving little motivation to protect owners’ subjective values to generations old trees, jungle gyms and tree-houses for their kids, etc.)  Or, in light of the fact this is the first time the particular provision in the local ordinance has ever been invoked, is the problem simply that Olerud is an ass?

Or was this the right outcome?

UPDATE:  Unsurprisingly, it’s hard to find a debate on this subject — everyone instinctively believes there is something just wrong about the outcome here.  So let me play devil’s advocate.

According to the Clyde Hill Municipal Code, Chapter 17.38 entitled View Obstruction and Tree Removal (http://www.mrsc.org/wa/clydehill/index_dtsearch.html), the people through their representatives enacting the chapter declare that although trees are beautiful and wonderful, etc. (17.38.010), views are also really important:

Views also produce a variety of significant and tangible benefits for both residents and visitors to the city. Views contribute to the economic environment of the city by substantially enhancing property values. Views contribute to the visual environment of the city by providing inspiring panoramic vistas, and creating distinctive supplements to architectural design. Views contribute to the cultural environment of the city by providing a unifying effect, allowing individuals to relate different areas of the city to each other in space and time.

So there’s obviously a conflict, as the code goes on to recognize:

It is recognized that trees and views and the benefits derived from each, may come into conflict. Tree planting locations and species selections may produce both intended beneficial effects on the property where they are planted, and unintended deleterious effects on neighboring properties. Trees may block light, impinge upon the utilization of solar energy, cause the growth of moss, harbor plant disease, retard the growth of grass, harbor rodents, interfere with snow and ice removal, as well as interfere with the enjoyment of views, including the undermining of property values. It is therefore in the interest of the public welfare, health and safety to establish standards for the resolution of view obstruction claims so as to provide a reasonable balance between tree and view related values.”

In light of the competing recognized values of trees and views, the city explains in impressive detail how it will decide conflicts between these values:

17.38.020  Preservation of views.  It is recognized that trees and views and the benefits derived from each, may come into conflict. Tree planting locations and species selections may produce both intended beneficial effects on the property where they are planted, and unintended deleterious effects on neighboring properties. Trees may block light, impinge upon the utilization of solar energy, cause the growth of moss, harbor plant disease, retard the growth of grass, harbor rodents, interfere with snow and ice removal, as well as interfere with the enjoyment of views, including the undermining of property values. It is therefore in the interest of the public welfare, health and safety to establish standards for the resolution of view obstruction claims so as to provide a reasonable balance between tree and view related values.

17.48.030 Complaint.  [Sets forth procedure for filing a complaint, how complainant’s view is obstructed, description of efforts to resolve the issue with the neighbor, description of costs to remediate, etc.]

. . . .

17.48.050 Hearing and findings of the board.  [A finding in favor of the complainant may be issued only if the board] shall find all of the following facts to be true:

1. That the property owner making the complaint has contacted the tree owner and made reasonable efforts to alleviate the problem as set forth in CHMC 17.38.030;

2. That the view from or the sunlight reaching the real property of the complainant is unreasonably obstructed and the manner in which the view or sunlight is obstructed. In determining whether the view from or sunlight reaching the real property of the complainant is unreasonably obstructed, the board may consider several factors, which include but are not limited to, the following:

a. The extent of the alleged view obstruction, expressed as a percentage of the total view, and calculated by means of a surveyor’s transit or by photographs or both;

b. The extent to which landmarks or other unique view features, as defined in CHMC 17.38.020(E), are obstructed;

c. The extent to which the tree(s) cause shadows or reduce air circulation and/or light;

d. The extent to which the tree(s) affect the real property value of the complainant’s real property;

e. The extent to which the tree(s) provide visual screening; a wildlife habitat; soil stability (as measured by soil structure, degree of slope and extent of root system); and energy conservation and/or climate control;

f. The extent to which the tree(s) affect neighboring vegetation;

g. The visual quality of the tree(s), including, but not limited to, species characteristics, size, form, texture, color, vigor and location; and other tree-related factors, including, but not limited to, indigenous tree species, specimen tree quality, rare tree species, and historical value;

3. That such obstruction materially decreases the enjoyment of the real property of the complainant; and

4. That trimming, pruning, removal or other alteration of the site of the obstruction in the manner to be determined by the board will not unreasonably decrease the enjoyment of the real property of the tree owner, as determined by an objective evaluation.

C. In making the board’s decision, the personal attachment of a party to particular trees or landscaping shall not be compelling nor shall a minor obstruction of a view or sunlight be decisive. (Ord. 805 § 1, 1999; Ord. 648 § 1, 1991)

Based on this list of criteria, it is fair to say that both Olerud and the neighbor were on notice of how disputes between trees and views were going to play out in Clyde Hill.  Given the alleged rarity and value of the Chinese pine here, this was probably a close call (“rare tree species” is a factor, but so is “visual quality,” and according to Olerud, this was a tree “that only an arborist would love”).  But the neighbor was on notice that his personal attachment to the tree has no significance in Clyde Hill:  the city values trees, too, but if there’s a dispute, they’re basically going to crunch the numbers and a few other “objective” factors.  If you don’t like it, you can take your business (i.e., the business of buying and residing in a home) to another city that perhaps puts more of a premium on trees than Clyde Hill does.  That’s the marketplace of municipalities.  Vote with your feet.

Similarly, the law, and economics, will presume that Olerud’s purchase price factored in his right to “inspiring panoramic vistas” of Puget Sound free from arboreal obstruction.  It doesn’t matter if the tree was already there when Olerud purchased:  the law says that he had the right to have it cut down.  Thus, his purchase price would have been increased by the value of that legally guaranteed view, less the transaction cost of enforcing the ordinance (i.e., trying to settle with the neighbor and ultimately obtaining the order from the board).

So, on closer look here, there’s nothing wrong with this outcome.  If you don’t like it, just don’t move to Clyde Hill.

The Cliff: Fake Poll, Real Quote

Tom Van Dyke 89 Comments

“Look, if you taxed every person in successful small business making over $250,000 at a hundred percent, it’d only run the government for 98 days. If everybody who paid income taxes last year, including successful small businesses, doubled their income taxes this year, we’d still have a $300 billion deficit.

You see, there aren’t enough rich people and small businesses to tax to pay for all their spending. And so the next time you hear them say, don’t worry about it, we’ll get a few wealthy people to pay their fair share, watch out, middle class. The tax bill is coming to you.”—Paul Ryan, VP debate ’12

Via the exquisite Patterico.

Reinventing the Safety Net

Tim Kowal 37 Comments

On last night’s GOP LeagueCast, I alluded to Republicans’ catch-22:  Their core conservative message is community-centric, but community-centric policies are impracticable at the federal level.  Instead, our GOP leaders in Washington focus on shuttering clumsy and unprincipled federal programs and policies–a righteous agenda–but are unable to roll out state and local programs and policies fill the holes they would create.  In other words, the GOP is heavy on “Repeal” and light on “Replace.”  This is the heart of the objection that Republicans are the “Party of No” and why they are always playing defense when it comes to health care and immigration and other social issues.  And when they do take the initiative, such as with No Child Left Behind, it backfires badly.

So here’s a concrete suggestion that I would be making to California Republicans if this were still a two party state: Take the lead on solving this state’s overcrowded prisons and over-incarceration problems with conservative principles:

  • restore rehabilitation,
  • reform three strikes,
  • restore mental illness treatment,
  • incorporate substance abuse training,
  • incorporate job training,
  • consider decriminalizing marijuana.

I realize that, at first blush, many of these do not look “conservative” at all.  Aren’t conservatives all about retributive justice and harsh punishment for criminals?  Isn’t the GOP the champion of Three Strikes?  Weren’t state mental hospitals dismantled under Governor Reagan?  And for heaven’s sake–GOP, the party of “legalizing it”?

But I say these objections overlook other aspects of the GOP that have gotten short shrift over the past many years.  The GOP has a strong interest in family, and while single mothers deserve all the support we can give them, the best support possible is to restore their husbands and their children’s fathers.  The GOP can be tough on crime and actively work to rehabilitate those who have paid their debts.  Individual responsibility should not mean a cold shoulder.

Let’s put it this way:  The GOP, in California in particular, tilts at windmills when it tries to curb spending.  Might as well spend it in a way that furthers conservative values of virtuous and productive citizens rather than policies that create dependency and recidivism.

There is a difference of opinion on whether Three Strikes is truly effective, but even LA’s DA Steve Cooley recognizes it’s time to reform it, as voters just did last week by approving Prop 36. And short of legalizing marijuana as Washington and Colorado did last week, California Republicans could favor decriminalization so as to end imprisonment for marijuana use–a punishment well in excess of the offense.

While we’re at it,at the local level, GOP leaders could promote human relations councils to improve the public’s trust of schools, police, and other local institutions. In my work with the Human Relations Commission in Orange County, it is painfully obvious that the communities that most depend on our public institutions are the most alienated from them.  The Commission works as a liaison that tries to make these groups feel heard and that recommends ways to ameliorate social tensions. Given the tenor of the GOP in recent years, it’s perhaps not surprising that I’m the only openly conservative member on the Commission.  The GOP needs to change that tenor and realign with its community-oriented principles.  While conservatism focuses on the importance of our institutions, Republicans too often throw their arms up at tough local problems, leaving “personal responsibility” to do all the work.

These restorative, revitalizing, rehabilitative measures would reduce the need for debilitating and dependency-creating safety net policies, strengthen families and communities, improve the economy, reduce state spending in the mid- to long-term, and reduce the burden on the prison system.  The latter would have the happy side-effect of decreasing the demand for prison guards and thus hitting the union’s membership rolls and pocketbook.  In other words, these policies would neutralize the powerful prison guards union without once mentioning pensions, immunizing the GOP from the meme that seeks to pit them against the middle class.  They would also give the GOP credibility as the party that cares about building virtuous citizens and healthy communities, and Democrats as the party that puts well-meaning but clumsy, ineffective, band-aids on problems.

These ideas fall in line with John Hinderaker’s excellent observations:  The social issues that were a net gain for the GOP were crime and welfare in the 1980s.  They can be again.

Liberalism: A Post-Mortem

Tim Kowal 51 Comments

I lost half of yesterday afternoon obsessing over early election returns, the evening hours brooding about the GOP defeat, and much of this morning so far catching up on post-mortems.  I’m providing my own (perhaps overly) bleak outlook here with the proviso that I intend to spend the rest of the day—and my life—trying to look ahead to happier things.

Scouring Twitter for solace among fellow conservatives, someone mentioned this election wasn’t about Americans choosing the wrong guy but about conservatives failing to articulate their principles. I have to disagree.  Conservatives articulated their principles forcefully in opposing Obamacare, for example.  They were right to do so given the conservative principles about liberty and the role of government.  Conservatives don’t follow those principles always or in the same way, but I’ll get to that in a minute.  The law has the rare distinction of exceeding Congress’s authority under the Commerce Clause, as the Supreme Court held.  Although it was upheld as a tax, it is technically unconstitutional under the Origination Clause, which requires all tax measures to originate in the House.  It’s a long shot SCOTUS will reach that issue in the case currently pending, though.  The point surely would have been argued had the Court ever indicated it was considering taking the tax argument seriously. I don’t mean to re-litigate Obamacare. The point is that there were (and still are) real problems with it in principle.  A majority of Americans agreed and even still agree.  But what happened when conservatives took up the principled position?  When they maintained that position?  They were tarred as obstructionists.

The reason the GOP’s principles were considered obstructionist stems from the fact that they supported an individual mandate in the 90s.  So they did.  The GOP is institutionally conservative, after all, and sometimes that cuts both ways when it motivates them toward protectionist and anti-competitive policies and to kowtow to big business.  But conservatism and the GOP are also chastened by their countervailing commitment to liberty.  Is that hypocritical?  It may be somewhat schizophrenic, sure.  Any ideology that tries to achieve a balance of liberty and security necessarily must be.  Ideologies that don’t deal with these difficult balancing acts are called the Libertarian Party, the Green Party, etc., and they don’t cause the major parties any concern whatsoever.  But there are principled ways to find middle ground and have a meaningful place in policy-making, and the GOP proposed some as alternatives to the conservative/progressive ideas that Obamacare espoused.  They were rejected as not ambitious enough, and the Democrats were satisfied to tar the GOP as obstructionists to the extent they professed a commitment to inflexible principles, and as flip-floppers to the extent they proposed more nuanced views.  The Democrats don’t want a GOP that moves to the center.  They want a GOP that will just leave them alone like the other principled fringe parties do.

This election season has had me writing about politics and the election much more than I’m comfortable doing. I’m obviously partisan, but I understand and appreciate nuances. I believe conservatism allows for nuance within a principled framework. As much as I’ve tried, though, I can’t find any legible framework of principles in modern liberalism—the liberalism whose heredity is in the protectionist conservatism of the mislabeled “progressive” movement under Teddy Roosevelt, Taft, and Wilson, and then dusted off and mislabeled again as “liberalism” under FDR.  Musings on modern political ideologies seem to me like notes from Babel.

That form of conservatism/progressivism/liberalism is anything but liberal.  In fact, the more I study that train of political thought the more I confirm that its very essence is the rejection of principles, and most importantly, principles of liberty. It is Hegelianism in the form of political ideology.  It is the truth of an ever-changing History:  truth as action, truth as will, truth as power. As an objectivist, as one who believes in universal truth, it simply is not within my constitution to understand modern “liberalism,” let alone to be a “liberal.” And so the sting in losing elections to a modern liberal like Obama has less to do with what he will accomplish.  Although I was fooled four years ago by people who insisted he would “govern from the center,” I tend to believe that the House will act as a firewall against his doing to much more illiberal damage.  No, my fear is not about the policies that will be enacted in the next four years.  It is about the extent to which his existentialist political philosophy will change how we understand society, individual, government, and their relation to one another. What is a “right” if we reject the founders’ concept of negative liberty? Who owes the corresponding duty? I’ve asked that question on these pages a number of times, and despite the number of smart liberals here, I’ve never gotten a cogent answer.  I’ve found common ground that the “idea” of liberty carries some emotional weight, some psychic significance.  But there is no intellectual machinery offered by modern liberalism to guide us in questions about when it must yield to some other value.  When truth is merely defined by History, there is never a need to answer those questions.  Times change, and so does truth.  Is there any wonder why conservatives resist change when those are the stakes?

This reelection, I fear, goes some length to making this all a moot point.  Obamacare is in, and the consensus seems to be that it makes health care a “right.”  (Actually, it’s only health coverage, quite different from care, but that’s another story.)  This is further precedent that we get rights when the Government says so and that’s that. A better answer about the nature of rights can neither be expected nor given. The rub is that we also cannot now expect or demand a better answer when the government deprives us of rights, either.  We prostituted that principle in exchange for the “right” to government entitlements.  The modern liberal America is actually strikingly illiberal: The government giveth and the government taketh away on its say so.  If liberty is not a fixed, objective concept, it has no protection to offer us.  The Declaration of Independence ushered in a liberal nation that, by degrees, ceased to exist sometime during this modern conservative/progressive era that began in earnest a century ago.

So perhaps conservatives and classical liberals will attempt to regroup and define and refine their principles for the next contest. But in addition to the attacks they will receive on top of being “divisive” and “hypocritical,” they will also have to hear that they’ve already lost this fight.  This is a nation we liberal conservatives no longer recognize because it is indeed not the same nation.  Liberal democracy is something of a misnomer because democracy eventually devours liberalism.  The aspect of conservatism that sought to stave off that eclipse has failed, and for me, that is the bitterest part of the defeat.

In the meanwhile, I will pray for the health of our aging justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy. With them and the other constitutional conservatives on the Court, and scarcely anywhere else, our founding principles still live.

From the eyes of a casual voter

Tim Kowal 6 Comments

A Facebook conversation this afternoon with a friend who is, at best, a casual voter, put things into high relief for me:

Friend: so whos it going to be for you

Me: I was not going to vote Obama anyway, and I’ve always liked Romney, and he’s looked better and better throughout the campaign.

Friend: he also had a bigger flag pin during the debate dont forget that.

Obama i could barley see his.

From a observation stand point.

This election day, consider not voting

Tim Kowal 3 Comments

This election day, Ilya Somin reminds us why many people really should stay home, and why the rest of us should consider not voting on down-ticket races and issues unless we know what we’re doing:

As political philosopher Jason Brennan argues, voters have a moral duty to be at least reasonably well-informed about the issues they vote on, because the decisions they make affect not just themselves but all of society. John Stuart Mill put it well when he wrote that voting is not just an exercise of personal choice, but rather “the exercise of power over others.” If you can’t exercise that power in at least a minimally responsible manner, maybe you should not do so at all.

. . . .

[T]he evidence strongly suggests that most people’s political views are only weakly correlated to their self-interest. When voters support bad policies, it is usually out of ignorance rather than selfishness.

I agree.  Instead of passing out “I Voted” stickers on election day, maybe we should pass out “I read a non-fiction book” or “I visited a thoughtful political blog today” stickers on the other days.  Somehow we ought to convey the message that our civic duty requires something more than Googling “who is running for president” on Super Tuesday.

A single-issue election: Do we or don’t we care about the debt in the short term?

Tim Kowal 75 Comments

I was going to vote against the incumbent either way, but if I had to boil all my problems down to a single issue, it could fairly be done on the debt.  In the short term, Obama believes it’s not a problem.  When David Letterman asked him back in September “is it $10 trillion?” Obama responded “I don’t remember what the number was precisely.”  It’s $16 trillion.  But like he went on to say, he believes “we don’t have to worry about it short term.”

This is classic can-kicking at what I believe is a critical juncture.  Even if we called it a draw on everything else, Romney would get my vote based on this single, sharply contrasting issue.