Lots of Money to Waste — No Money for Genuinely Just Compensation

       All experienced eminent domain lawyers know that from time to time courts offer excuses for shortchanging condemnees. If those property owners who find themselves in the path of a public project, goes the judicial lament, have to be paid  genuinely just compensation, that fairly compensates them for all their demonstrable economic losses inflicted on them by takings of their homes, farms and businesses, the construction of public projects will grind to a halt. The California Supreme Court has asserted that if compensation is provided “too liberally” an “embargo” on the creation of public projects will have to be declared. Yessiree Bob, an “embargo.” This bit of judicial nonsense has been repeated time and again by California courts without any supporting evidence.

            But in fact, there never seems to be a shortage of public funds to be blown in mind-boggling amounts on bungled public projects that either fail altogether or are so badly constructed that they cannot be used and have to be abandoned or redone. The most recent dispatch comes to us from Connecticut. A New York Times editorial of January 27, 2008 (Perestroika for Connecticut), comments on Connecticut’s bungled construction of a highway drainage system and highway widening of Interstate 84, that, according to the Times “created a traffic nightmare.” And guess what? “[W]hen everything was finished, virtually every detail was constructed wrong, rendering the highway prone to washouts and sinkholes,” and surprise, surprise, “leaving taxpayers on the hook for tens of millions of dollars.” The Times reports that the FBI is investigating. We can’t wait.

            This follows on the heels of another recent Connecticut highway fiasco, involving the I-95 in East Haven, where as of January 2006, the project was $9.5 million over budget and counting (I-95 Cost Overruns Put at $9.5 Million, NY Times, Jan. 1, 2006, Sec. 14CN, at p. 2).

            And over in Boston, the latest dispatch from that financial mega-disaster known as “The Big Dig,” (that has already swallowed some $14-plus billions as against the original estimate of $2.6 billion), is that “The two companies that managed the design and construction of the costly ‘Big Dig’ project . . . will pay more than $400 million in an agreement with the government over leaky tunnels and a fatal ceiling collapse.” Abby Goodnough, 2 Big Dig Companies to Pay $407 Million for Repairs, N.Y. Times, Jan. 24, 2008, at A13. Which, if you think about it, is chump change compared to the overruns already incurred on this project.

            And so it goes.

            So keep all that in mind next time a condemnor’s lawyer, or worse, a judge, starts going on about how we can’t provide genuinely just compensation to condemnees for all their demonstrable economic losses because – golly – we just plumb can’t afford it. Perhaps you can remind His Lordship that if the highwaymen have gazillions to waste, they surely must have enough money to pay innocent condemnees being displaced  by public works the just compensation that the Constitution promises but the courts don’t deliver.

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