Month: September 2024

The Merits of a Public Policy Do Not Justify the Executive’s Taking a Dive in a Challenge to a Statute

Last Friday the Star-Ledger‘s on-line incarnation, NJ.com, published a guest column by three members of a group opposed to the exemption in New Jersey’s Smoke Free Air Act for smoking in casinos. Among the topics of conversation was a lawsuit brought by that group seeking to have the exemption declared unconstitutional.1

They certainly have a legitimate argument that the allowing of smoking in casinos (when it is prohibited in almost all other public indoor venues) is bad public policy, but I part ways with them in their criticism of Governor Murphy and the commissioner of health for defending the statute in the litigation and in urging them to stop defending the lawsuit.

Policy choices like this are for the Legislature to make. Unless a statute’s unconstitutionality is clear, the executive branch has a duty to defend the statute in court. Now that a trial judge has upheld the legality of the exemption, there is all the more obligation on their part to defend that decision in the promised appeal.

Consider if it were otherwise. A governor could have a political crony challenge a policy the governor does not like and then tell the attorney general not to respond. Eventually a default would be entered. Absent discovery of and reporting on the lawsuit by the news media, the Legislature may not even know that there is a challenge. This is a misuse of the court system.

Jay Bohn

September 26, 2024

  1. This article reports on the dismissal of the lawsuit. ↩︎

Copyright 2024 by Jay Bohn.

Truth in Acronyms: YIMBY or YIYBY?

NIMBY is a well-known acronym for “not in my back yard,” referring to those who are opposed to the nearby construction of LULUs (another acronym, this one standing for “locally unwanted land uses”).1 Such opposition reflects the reality that the benefits of a particular development are often more geographically dispersed than its negative impacts.

In this case the term “back yard” is metaphorical; it means near my property, not actually on it. With the exception of utility infrastructure easements, development in my actual back yard will bring particular benefits to me that outweigh the detriments (to me), else I wouldn’t do it.

NIMBYism may not reflect opposition to a particular development anywhere, just not close by. If we have to have it, put it somewhere else: somebody else should “pay” for the social good that comes from it.

More recently I have seen the term YIMBY (yes in my back yard) touted as the opposite of NIMBY. Unlike NIMBY, which is usually used pejoratively, YIMBY is adopted as a badge of honor, if not moral superiority. See, for example, YIMBYs for Harris.

But I’m not convinced. You see, NIMBY has two opposites. YIMBY is one, but YIMBY means that I will accept a nearby development that others don’t want. That’s not what they’re pushing. I doubt that most YIMBYs for Harris want a lot more housing in their own back yards. Not to pick on him, but one of the politicians listed among YIMBYs for Harris is current Jersey City mayor (and New Jersey governor hopeful) Steve Fulop. A few years ago, Fulop made NIMBY-like noises against allowing parking on the streets near his Rhode Island vacation home to accommodate public access for surfers.

Most of the examples of YIMBYism I see discussed really seek to channel development to someone’s else’s back yard: “yes in your back yard,” or the less pronounceable YIYBY.2

Look, I get it. The so-called YIMBYs are right that we have a housing shortage and the cost of housing is increasing because demand is outstripping supply. I have said as much previously. But, if we’re going to build more housing, it’s going to be in someone’s back yard and the political process, as ever, is going to pick winners and losers, so let’s at least be honest about that and try to make those choices on a rational basis and not just raw power.

Jay Bohn

September 23, 2024

Copyright 2024 by Jay Bohn.

  1. See the Wikipedia article for the development of the term and variations of it. ↩︎
  2. Although I came to the acronym YIYBY independently, I am not the first. See, for example, these writings by Arlingtonians for Upzoning Transparency and 48hills, both of which use the term. ↩︎