If at First You Don’t Succeed, Fail, Fail Again

Don’t miss the LA Times story by Angel Jennings, L.A. County Wants to Take Blighted Property, April 23, 2018, at p. B1. It tells the story of a land owner who stands to win our “lucky Pierre” award for being the subject of not one, but two eminent domain actions seeking to take his large plot of land that has been sitting vacant since the 2005 riots, and which — according to its owner — was blighted by the city’s activities, so it became an invitation to homeless folks’ encampments, and generally not what comes to mind when you speak of an area to be redeveloped with a mall, entertainment facilities, a restaurant, etc.

Long story short, the owner actually broke ground 2005, for a project of his own. But nothing came of it. He blames the city for this result. Anyway, nothing came of the city’s intention to take and redevelop the place, because California, in a rare stroke of common sense abolished redevelopment, whereupon the condemnation had to be abandoned (and attorneys’ fees and damages totaling $5.2 million paid to the owner).

Now, starting in 2017, the county filed another condemnation action seeking to do what the city couldn’t, and wants to take the property for assorted public uses like stores, entertainment facilities and — are you ready? — a facility for NASA lectures. The owner is resisting the taking on a variety of grounds, and the fight is on. In the meantime the subject area is known to local cops as “death alley” because of its high homicide rate.

We can’t wait to see how it all turns out. Stay tuned. And do read that lengthy LA Times piece cited above

George Will Reviews New Movie About the Kelo Eminent Domain Case

We live in an era of the visual, with readership declining and people increasingly getting their information from a screen — mostly a little computer screen, even though big movie screens are still hanging in there. So we were glad to learn that a movie about the wretched Kelo case has been made and is now being distributed. The national columnist George Will has joined in with a column reviewing it (link at the end of this post).

Kelo v. New London was the Connecticut eminent domain case in which the city of New London took an entire lower middle class neighborhood in order to turn it over to a private developer on a long-term lease (for a dollar per year). That developer was supposed to redevelop it into a higher class area of shops, classy condos and a marina, all serving well paid professional employees of a nearby research facility of the Pfizer company, the pharmaceutical biggie. The case eventually wound up in the US Supreme Court which, by a 5 to 4 vote sided with the city, over sharp dissents by Justices O’Connor and Thomas.

However, the project turned out to be a total failure, and the supposedly thoroughly vetted city plans turned out to be so much hot air. After an unblighted 92-acre waterfront neighborhood was destroyed, displacing its unoffending inhabitants, nothing was built on the site. Pfizer, which was to be the beneficiary of the economic revival flowing from the project, exhausted the tax benefits it got from the city, and instead of adding jobs as promised, moved out of New London, lock, stock and barrel. The site of the redevelopment project is now a vacant, trash-strewn wasteland. This caper cost the city and state some $100 million with nothing to show for it, except a tidal wave of popular revulsion that swept the country. The envisioned tax gains turned into losses, thus illustrating the line of the late California Court of Appeal Justice, Macklin Fleming, who once observed that when it comes to redevelopment, the bigger economic pie the project promoters tout as coming to all, turns into pie in the sky.

The movie’s title, like that of the book on which it is based is The Little Pink House
The link to George Will’s review is:
https://www.sltrib.com/opinion/commentary/2018/04/19/george-f-will-case-of-eminent-domain-in-little-pink-house-speaks-truth-to-power/

For a review of this film by Variety, go to:
Film Review: ‘Little Pink House’

Lowball Watch — Pennsylvania

The York Daily Record of April 17, 2018, reports that a York jury awarded $1.25 million for the taking of the old York County Prison (now in private hands), when the York Redevelopment Agency took it by eminent domain. The commissioners (called “Viewers” in Pennsylvania) awarded $65,000, plus $4000 in attorneys fees. But when the case went to trial, the jury awarded $1.25 million, which was affirmed on appeal, as we reported on March 17, 2018. It took the jury only 30 minutes to reach its conclusion.

The redevelopment agency is seeking review by the Pennsylvania Supreme Court which — like most supreme courts — is not required to review the affirmance on the merits. In the meantime, interest on the award is running at the rate of $188 per day. Stay tuned.

Dylan Siegelbaum, As Interest Mounts, RDA Appeals $1.25M Award for Old York County Prison, April 17, 2018. See

https://www.ydr.com/story/news/local/2018/04/17/rda-appeals-eminent-domain-verdict-old-york-county-prison-pennsylvania-supreme-court/525653002/

The Public Housing Tragedy

We recommend to our readers that they take a look at a New York Times article Bleak Housing which is a book review of HIGH-RISERS, by Richard Rothstein, appearing in the New York Times Book Section of April 15, 2018, at p. 21. It’s the story of the construction, decline and eventual fall — figuratively and literally — of the Chicago Cabrini-Green public housing project, a massive 20-story apartment building that with time became such a hellhole that it had to be demolished.

We have only read the NY Times book review, but that strikes us as enough. There is ample material there to support the conclusion that the Cabrini-Green project was a cautionary tale of the tragedy that results when good intentions meet unintended side effects, and an illustration of why government projects fail so often. It brings to mind Brendan Behan’s cynical line that “I cannot conceive of a human condition so wretched that the appearance of a policeman couldn’t make worse.” Substitute the word “government functionaries” for “policeman” and you got it, although the police have a good excuse because they are called upon to make split second decisions under often dangerous circumstances, while the city housing functionaries can take their time and benefit from the views of expert advisers.

It seems that in the public housing disaster exemplified by the downfall of Cabrini-Green, for every new idea intended to improve things, there was a counter-idea suggesting a rejection of the first idea and the substitution for it of another one whose features undid all the good that the first idea was intended to bring about, and then some.

And of course, much of the public housing disaster was brought about by the unfortunate behavior of the intended beneficiaries of those public projects. That, however is another sad story that we can’t very well get into here without prolonging this post excessively.

But if you have an interest in American urban affairs, do read that book, or at least the Times’ book review of it. Sad but informative.

Wisconsin Legislature Flips Off Supreme Court’s Murr Decision

Remember Murr v. Wisconsin? Sure you do. Murr was the recent Supreme Court land use/taking decision in which the majority of the U.S. Supreme Court inflicted yet another procedural nightmare on the law of land-use/takings. The court (per Kennedy, J.) did so by creating yet another multi-factor test, this time to determine what is the “larger parcel” in regulatory taking cases.

The facts were simple. The Murrs bought two adjoining parcels of land in the early 1960s. They were bought at different times, and were taxed separately so they were carried on the tax rolls as two separate parcels. The Murrs lived in a cottage they built on one parcel, and kept the other one vacant for future use. Eventually, they decided to build on it but the local regulators had a little surprise for them. Under a local regulation, the Murrs’ two parcels were deemed one, and — relying on the absurd statement in Penn Central to the effect that “takings jurisprudence” does not divide a parcel into segments for the purpose of deciding that a part of it has been taken — denied permission to build on it. Under that rule, when it comes to regulatory takings, it’s either the entire “larger parcel” or nothing at all.* So the Wisconsin regulators, relying on that rule took the position that the Murrs could neither sell the second (vacant) parcel nor build on it. The Murrs deemed that a de facto taking of the second parcels, but to no avail. The US Supreme Court upheld the regulators’ position in Murr v. Wisconsin

But something wonderful happened at this point. The Wisconsin legislature got wind of the Murr decision, and responded with praiseworthy speed. It promptly enacted Senate Substantive Amendment 1, to Senate Bill 387, which among other things repealed the local rules under which the regulators had purported to act. It forbade local land regulators from imposing lot merger requirements on separate lots. For a quick summary of the new legislation see Scott Bauer, Scott Walker Signs Bill Inspired y Western Wisconsin Cabin-Owners’ Court Fight www.Twincities.com, November 27, 2017.

Scott Walker signs bill inspired by western Wisconsin cabin-owners’ court fight

It took the Wisconsin Legislature only five months to rectify the US Supreme Court’s wretched opinion. Nice going.

_________________________________________-
* The reason we think poorly of that statement in the Penn Central opinion is two-fold. First, when the US Supreme Court uttered that line, it cited no authority — no precedent, no treatise, no commentary, no reason, no nothin’ in its support. It was just a naked assertion. Second, what the then-existing law was, held to the contrary — see U.S. v. Grizzard (1911). Besides, as anyone who has tried an eminent domain case knows, in a partial taking case the condemnor must pay not only for the part taken, but also severance damages suffered by the property’s remainder left in the owner’s hands after the taking. So that Penn Central statement about what the “takings jurisprudence” says, stands on feet of clay, or more accurately, no feet at all.

But hey, man. The Supreme Court had the naked power to say so, and it did just that, thereby confusing the law and providing lawyers with much gainful employment.

Lowball Watch — Pennsylvania

The York Dispatch reports that the Commonwealth Court has affirmed a jury award of $1.25 million for the taking of a 2.9-acre parcel of land with an old, former prison building on it. The Redevelopment Agency paid the owners $65,000, the amount awarded by commissioners. But after a trial, the jury took only 30 minutes to bring it its $1.26 million award.

According to our calculator, that jury award comes to almost 20 times the city’s offer.

Liz Evans, York City Must Pay $1.25 Million For Old Prison Property, Appellate Court Finds, York Dispatch, March 14, 2018. https://www.yorkdispatch.com/story/news/local/2018/03/14/york-city-must-pay-1-25-m-old-prison-property-appeals-court-affirms/425532002/

Back to the Future on Housing? Not in Our Lifetime.

If you are a person of that certain age like your faithful servant, you remember things and memory enables you to put events in perspective. In the good old days, we were told by planners that the American way to live was to buy a suburban home, ditch the city, and head out to suburbia where life was easier, schools were better and safer, and the kids could walk and play without fear of being robbed of their lunch money, or worse. Both ends of the political spectrum were in favor of this, including Herbert Hoover and FDR’s greenbelt czar Rexford Tugwell. This, we were told, was the benign future. And Uncle Sam lent a hand by insuring home mortgages and building highways to the suburbs with federal funds.

But things didn’t quite work out. The departing population left behind shells of cities, some of which more resembled bombed-out cityscapes that middle-class habitats. Add to that the negative factors that drove people out of cities, like riots, rising crime, drugs and above all the catastrophic decline in the quality and safety of urban schools, and you get an insights into the motivation of urban dwellers heading out to the suburbs. Thus it became a no-brainer for urban dwellers to pack their stuff and head out to the suburbs.

But now, the message from our betters has been flipped on its head. Now, we are told, we should pack our stuff and head back into cities, there to live in mid-rise, mass transit oriented apartment buildings. That’s the word from on high (from a Calififornia State Senator to be exact), who sees this vision of the urban future as the way to go to reduce the dreaded carbon footprint by elimination of long car commutes. See Conor Dougherty and Brad Plumer, In California, a Green Split Over a Density Push, N.Y. Times, March 16, 2018, at p. A1.

Predictably, this proposal has met with controversy and resistance from inter alia the Sierra Club, which is a real surprise. Will it succeed? We doubt it. “[R]esearchers studying public opinion have found that, as one survey from 2000 put it, Americans will support action in climate change ‘as long as these initiatives do not demand a significant alteration in lifestyles,’ such as driving less.”

So will Californina abandon their cars en masse and walk to the subway in Southern California’ 90-degree summer heat? Maybe some will. But not many.

Stay tuned.

Follow up: The proposed bill died in Committee, and appears dead as a doornail.

To Tell the Truth You Have to Tell the Whole Truth

When witnesses are sworn in before testifying they have to swear to tell (a) the truth, (b) the whole truth, and (c) nothing but the truth. Why the rigmarole; why not just have them swear to tell the truth? Answer: because by adding questionable extraneous assertions, or — as in the case at hand — omitting material parts of the story, the listener/reader can be misled. Case in point: Richard M. Frank’s column Property Rights vs Land Use Regulations at High Court, Los Angeles Daily Journal, March 15, 2018.

There, Mr. Frank, professor of “environmental practice” at the UC Davis School of Law, tells us about the Supreme Court’s recent grant of certiorari in Knick v. Township of Scott. It appears that the court is going to take another look at the “ripeness mess” it created in stages beginning some 30 years ago, when it engrafted a ripeness requirement onto takings litigation when it decided Agins v. City of Tiburon, and Williamson County etc. v. Hamilton Bank, and compounded it in San Remo Hotel v. San Francisco. The truly mind-boggling one in International College of Surgeons v. Chicago which held that you can’t sue for an unconstitutional, uncompensated taking of your property in federal court, but if you sue in state court (as you must under Williamson County) your opponent can remove your case to federal court and then — believe it or not — argue successfully that your case should be dismissed because you should have sued in state court. And never mind that you did just that, and that it wasn’t you but your opponent who removed the case to federal court. Now go back and re-read the last sentence slowly and attentively and reflect on the fact that this isn’t some grotesque joke. That’s “the law.” Yes, it is. For a more detailed discussion of this mess, see our article, Michael M. Berger and Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-parody State, 36 Urban Lawyer 671 (2004).

Under this clutch of SCOTUS cases, if you are an owner of property and government regulation deprives you of utility of your land, denying you all economically viable use of it, thereby effecting its de facto uncompensated taking and violating your constitutional rights under the Fifth Amendment, you can’t sue in federal court like every other kind of plaintiff to show that your constitutional rights have been violated by local government.

So it seems to us that if SCOTUS is thinking of straightening out this intellectual and moral mess, that ought to be a cause for satisfaction by every intellectually honest lawyer, no matter which side of the controversy he or she is on. But that hasn’t been the case. Government lawyers have been pushing this absurd doctrine to the nth degree, and some courts — to their discredit — have been going along with it. You don’t think so? Then try to contemplate the federal courts’ ruling that a property owner caught in this predicament cannot sue because he is simultaneously too early (his case is unripe) and too late (his effort to comply with Williamson County has rendered his federal claim res judicata so he can never get any relief, either is state or federal court.

So what does all this have to do with Mr. Frank’s article? A lot. What he does is tell the Williamson County, story about how you first have to sue in state court, but never gets around to telling his readers that the “first” isn’t first; it is rather the end of the game, because as we noted, when you sue “first” in state court (as you must under Williamson County) your case is over and you cannot — not ever, not never — get an adjudication of your federal constitutional rights in federal court like every other kind of constitutionally aggrieved plaintiff.

Is that all? Not quite. Mr Frank evidently couldn’t resist it, so he inserted into his piece a dig at Justice Holmes’ landmark Pennsylvania Coal v. Mahon holding, noting snidely that it was made up of the whole cloth. Really? And here we thought that it was consistent with first-year property law course material. He fails to clue in his readers to the fact that the California Civil Code (Sec. 654) expressly defines the right of use of one’s property as a property right. And he also fails to note that for years the US Supreme Court defined property that is subject to constitutional protection as not a thing, but a group of rights, including the right of use. See Lucas v. So. Carolina Coastal Council.

So let’s be careful out there, folks. Government lawyers have been taking advantage of their favored position in the courts and abusing it when they could.

And speaking of the whole cloth, in the 1970s they floated a novel doctrine that if adopted would — abracadabra! — transform the traditional, private right to build on one’s land into a “public right.” See Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1973, at p.1, reporting how a bunch of fat cats dba Citizens Advisory Committee on Environmental Quality announced that “henceforth development rights must be regarded as resting with the community rather than with property owners.” Fortunately, the US Supreme Court rejected that suggestion in the case of Bituminous Coal Assn. v. De Beneditis and reaffirmed the right to just companation for takings of property, whether physical or regulatory, total or partial, temporary or permanent in Firs English etc. Church v. Count of Los Angeles.

Calling All Kultur Mavens!

You may find this hard to believe, but out here in la-la land, the place where we never tire of trying to make ourselves look foolish, we have a new cultural cause celebre. Out in the Silverlake area of Los Angles a fellow owns an old, former gas station, now used as, er, we are not sure as what but it looks like an old car repair shop. It was built in 1941 and its owner, reasonably enough, thinks it has outlived its usefulness so he wants to tear it down and build housing which — Lord knows — is desperately needed.

But guess what? Local NIMBYs are protesting because they want this old decrepit-looking building designated as a “cultural monument” and preserved for posterity. Here it is in all its cultural glory:

Use the link below, and look at the photograph and see for yourself. One picture, as they say, is worth a thousand words. (Cut the link and paste it into your browser so you can behold this property in all its “cultural monument” glory):

https://la.curbed.com/2018/3/12/17111940/silver-lake-gas-station-historic-cultural-monument#nws=mcnewsletter

What makes this a case of deja vu is that we started our amateur journalistic career by writing in 1989, in the now defunct Los Angeles Herald Examiner about a similar caper in Studio City. Gideon Kanner, The Great Car-Wash Monument Caper, L.A. Heralf Examiner, July 2, 1989, at p. F1. There, local NIMBYs demanded that the City Cultural Preservation Commission declare a local car wash to be a “cultural monument” and thereby prevent its lawful owner from tearing it down and putting up a mini mall in its place. It was located at the busiest intersection in town, but that did not prevent the NIMBYs from calling for the preservation of “our quaint little village.” Incredibly, they got their way when the commission voted their way, but their triumph was short-lived when a Los Angeles Superior Court judge issued a writ of mandate vacating the “cultural” designation.

But while the fight lasted, it was a sight to behold, with the LA Times running beaucoup articles on this weighty civic matter almost on a daily basis. They even ran one of those full page Point/Counterpoint thingies where your faithful servant and a disappointed local politico squared off, with us taking the side of the owner’s right to use his property by tearing down the old car wash and replacing it with a small local shopping center. See Should a Studio City Car Wash Be Preserved as a Cultural Monument?, LA Times, June 25, 1989, at p. 5 (Valley Edition).

Fun was had, but all things come to an end and in the end the old car wash was torn down and replaced with the shopping center which as far as we can tell is thriving.

So we can’t wait to see how the Silverlake “cultural monument” caper turns out. Stay tuned.

Urban Decline — Chicago

The decline of American cities is an old, sad story, with Detroit usually taking center stage because of the severity of its problems and its abandonment by over half its population. We wrote about it in Detroit and the Decline of Urban America, 2013 Michigan State Law Review 1547, and you may want to take a look at it. But you rarely see a broad discussion of this phenomenon that combines the role of land-use law and policy as well as municipal misgovernance, local politics, law enforcement and race relations. Now, along comes Joseph Epstein, our favorite essayist, and takes on this subject from soup to nuts.

Epstein manages to tell the story — the whole story of urban decline — in a single essay that is both informative and occasionally amusing. The only factor in this sad story of urban decline that he does not get into — and who can blame him for that? — is the role played by the post World War II government policy of encouraging and financing an out-migration from cities to suburbs. That was covered by Jane Jacobs in her famous book, The Death and Life of American Cities.

So we recommend that if you have an interest in land-use law and politics, and their combined effect on American cities you read it. Here is the link:

http://www.weeklystandard.com/chicago-then-and-now/article/2011701