This season of the Institute for Justice's podcast series "Bound by Oath" is devoted to property rights. It's a fascinating series -- produced by John Ross, it is more like an audio documentary than a typical podcast -- focusing on constitutional issues. And we say this not just because we've been a guest a couple of times -- see "Groping in a Fog", this season's immediate prior episode about regulatory takings, and Season 1, where we guested on the episode about the origins of the "incorporation" doctrine).
In the latest episode, "A Lost World," John covers the world before zoning and the use (and abuse) of the plain-old police power to regulate the use of land and property.
Here's the description:
On Episode 3, we journey back to a lost world: the world before zoning. And we take a look at a trio of historic property rights cases. In In re Lee Sing, San Francisco officials tried to wipe Chinatown off the map. In Buchanan v. Warley, Louisville, Ky. officials mapped out where in the city residents were allowed to live based on their race. And in Hadacheck v. Sebastian, a Los Angeles city councilman sought to use the police power to protect his real estate investments.Click here for transcript.
We were happy to share some of the backstory (and sad ending) of Hadacheck. Here's a photo looking down Pico from the site of the Victoria Park neighborhood, showing how close the two brickyards covered by the ordinance's ban were to Councilman Andrews' real estate investment.
Which gets to the good part, the rest of the story that is not reported in the opinion:
John: And there’s one more piece to the story. It’s one that’s not in the briefs or in the court opinions, but it is in newspaper articles from the time. It turns out that just a couple blocks away from Hadacheck’s lot, real estate investors were selling lots in what was then a fancy new development. Here’s an advertisement in the Los Angeles Times printed in 1911.Ad in L.A. Times: FOR SALE: The finest residence property in Los Angeles. Victoria Park is located in the ultra-fashionable southwest district on the very crown of West Adams Hill. The highest skill of the landscape gardener’s art has been employed to make ….
Robert Thomas: And if you take a left and drive down about a minute you turn into a neighborhood called Victoria Park. And well it turns out that this was the residential subdivision that the Los Angeles City Council was concerned with, because on one hand it was two blocks or so from Hadacheck’s brickyard, and it was literally across the street from one of the other brickyards that was subject to this ordinance. I think the homes there today when you drive around must have been the homes that were built then because they have that period look to them. Arts-and-crafts type of houses. Really kind of nice. One and two story houses with lawns and substantial lots. And of this being Los Angeles, there's a ring of palm trees.
John: Victoria Park was being developed by a consortium of real-estate investors. Robert Thomas: Well, it turns out that one of the leaders of that consortium was a fella called Josiah Andrews.
John: Josiah Andrews was a Los Angeles City Councilman, and one of the very first things he did after getting elected was to introduce the brickyard ban – not a ban in the whole city but just in the area that just so happened to be next to his investments in Victoria Park.
Robert Thomas: The story, when you piece it all together by looking outside the opinion, looks like one where it's pretty clearly self dealing on the part of Councilman Andrews. Why that does not make it into the record. Why that does not make it into the opinion. We don't know. John: In fairness, the city did get around to banning brickyards elsewhere in the city within a few years. But in 1910, the only ones they banned were the ones that threatened Josiah Andrews’ pocketbook. The Hadacheck decision remains good law, and looking back it today it appears to be a harbinger of things to come. Namely, the Supreme Court’s unwillingness to find that land-use regulations violate the due process of law – even when they seem arbitrary and even if someone’s ox is very definitely getting gored. And while you might think that invoking the police power as a pretext for a government official’s private pursuit of profit would be something of a no-no, well, stay tuned on that. We’ll come back to pretextual confiscations later in the season. Today, of course, Mr. Hadacheck’s case might be litigated differently. He probably would raise a regulatory taking claim, for instance, but as we talked about last episode the likelihood that he would achieve a more favorable result is not great.
For more visuals to go with your reading, see our post "Takings Pilgrimage, LA Edition: Police Power, The Zoning Game, And Nuisances" where we visited the Hadacheck site. Or read a short essay we wrote a few years back which includes more about Hadacheck.
And be sure to add this episode to your listening queue.
