Monthly Archives: July 2011

Lowball Watch – California, With a Lesson on How California Courts Can Treat Condemnees

An interesting, if sketchy news item comes to us from Willits, California via a story in The Willits News — Linda Williams, Good and Bad News for Brooktrails Water Users, The Willits News, July 15, 2011. For the whole story, click here

It appears that Brooktrails Township decided to acquire land for expansion of its water works, and in 2008 it “paid” the owners $27,700. The news story uses the word “paid,” but we surmise that what actually happened was that the township deposited that amount into court for the owners. Long story  short, the case went to trial and the jury  returned a verdict of $265,000, which the trial judge reduced to $236,000. For the benefit of lay readers, this sounds like an order of remittitur whereby the judge says to the winning party, “You either accept the remitted [lower] amount, or I will order a new trial.” This is what must have happened here because under the California Constitution just compensation is determined by the jury, so judges lack the power to just change a jury award.

Now comes the fun part.

Under California law, when a property owner wins a verdict that is larger than the condemnor’s pre-trial offer, the trial judge has the discretion to order the condemnor to pay for the owner’s attorneys fees and other litigation expenses, if the judge finds that the condemnor’s pre-trial offer was not reasonable but the owner’s demand was reasonable. So given the disparity in this case — a $27,770 deposit versus a $265,000 verdict — you’d think the condemnor’s offer was unreasonable on its face because the verdict came to almost ten times the condemnor’s deposit. Right? Wrong. This is California, man. The judge thought that the $27,770 deposit (which presumably was based on the condemnor’s appraisal) was “reasonable and fair.” No comment appears necessary.

We are unable to tell from the Willits News story whether the owners intend to appeal. We hope they do. See Tracy Joint Unified School Dist. v. Pombo, 117 Cal.Rptr.3d 470 (Cal.App. 2010)

The Road to “Carmageddon”

It’s the afternoon of Friday, July 15th, so if you are a sentient human being living anywhere near Los Angeles, you must surely know that in a matter of hours “Carmageddon” will be upon us. That’s the condition of local traffic that is expected upon the demolition of the bridge that takes Mulholland Drive over the stretch of the 405 Freeway (known to us old timers as the San Diego Freeway) that connects the San Fernando Valley and the West Side of Los Angeles through the Sepulveda Pass in the Hollywood Hills, to allow construction of a new bridge that will accommodate the new, widened freeway that is now in the process of reconstruction. This will require a complete shut-down of the 405 Freeway in the Sepulveda Pass in both directions for the coming weekend. Since the 405 is a major north-south traffic artery serving the west side of the Los Angeles basin, all hell is expected to break loose trafficwise during the coming weekend. What will actually happen is yet to be seen. Sometimes our fellow Angelenos can surprise you — like during the Olympics when a foreshadowed gridlock did not materialize, and traffic was better than normal.

All this, however, has stimulated a tidal wave of nostalgia on the part of your obedient servant whose memory runneth as far back as the olden days in which there was no San Digo Freeway, and the winding road through Sepulveda Pass was a nifty place in which to take a ride in a sports car. Oh, yes! We confess to having done that in a Nash-Healey roadster in the 1950s. And a fine ride it was. But we digress.

What the upcoming Carmageddon bids fair to demonstrate, however, is some truisms about highways, their construction and maintenance, and the acquisition of rights of way for them. To start with the present, and work backward in time, this project is an outstanding illustration of the absurdity of NIMBYism. The relevant stretch of the 405 runs through one of the most affluent areas (Sherman Oaks, Bel Air and Brentwood), so when the plans were announced, the predictable happened — local NIMBYs came out in force, complaining bitterly about the desecration of their rustic ambiance, the aesthetics of the new bridge design, and demanding a revised plan. Never mind that that original plan would have required only a one-day freeway shutdown, and would have saved millions of dollars. But guess what? CalTrans, well known for its arrogance, particularly when it comes to using eminent domain to roll over modest, minority communities that wind up in the way of its projects, somehow grew meek and compliant, and changed the execution of its 405 widening project. Changed how? Well, it turns out that the new, nimbyfied approach is substantially more expensive, will take longer, and will severely inconvenience the general public. So much for that precious ambience of the Sherman Oaks NIMBYs.

When land was being taken by eminent domain for the 405 right of way in the 1950s, it gave rise to the notorious People v. Symons case in which the California Supreme Court denied Mr. Symons compensation for the diminution in value of his home, that resulted from the taking of a part of his land. The freeway lanes, held the court, were built on land taken from others, so in spite of an incontestable diminution in the value of the Symons home, which wound up next to the freeway embankment, and had a part of its yard taken to accommodate a cul de sac required by the new freeway, Mr. Symons would receive no severance damages.

That would have been bad enough, but to add insult to injury, the court announced that it saw it as its duty to keep compensation in eminent domain cases down, lest compensating condemnees too liberally (i.e., for all their demonstrable economic losses that were incontestably suffered), would bring about an “embargo” on the construction of public projects in California. In fact, that was the period of time during which CalTrans was stashing annual surpluses that ran into the multiple nine figures annually.

Not only that, but California law of that time was shockingly one-sided: when it came to special benefits that are offset against severance damages, said California courts, it didn’t matter where the public project was located; it was only when it came to severance damages, that the project’s location on land taken from the compensation-seeking condemnee became decisive. Our courts were untroubled by this shocking lack of even-handedness on their part, and over the years repeated the “embargo” business several times.

Of course, there was no basis for any of this. In 1976, the California legislature repealed the Symons rule (Cal. Code Civ. Proc. Sec, 1263.420 (b)), but in the ensuing 35 years no “embargo” on public project had to be declared. When public projects had to be cancelled in California, it was not for lack of money but because of popular opposition (as in the famous San Francisco “Freeway Revolt”) or because of illegal conduct by condemning bodies.

So stay tuned, and before too long we’ll let you know how Los Angeles coped with that Carmageddon.

Follow up. Guess what? We were right in thinking of our fellow Angelenos as sensible and capable of rising to the occasion. As of mid-day of “Carmageddon Saturday,” July 16th, all is well. Traffic is down, and there is no gridlock in sight anywhere. People are staying away from the Sepulveda Pass area, and Jet Blue Airlines will fly you over the Sepulveda Pass, from Long Beach to Burbank, for a mere $4. Is that civic-minded class, or what?

So stay tuned and we will let you know how it all works out.

And you won’t believe this, but today’s Los Angeles Times ran an editorial, The Mulholland Bridge That Might Have Been, July 16, 2011 (click here ), chastizing the NIMBYs — gently to be sure — for their selfishness and arrogant stupidity in inflicting this unnecessary burden on the city.

But hidden in the Times editorial is another, more important point. The reason the highway builders caved in to the NIMBYs, suggests the Times, was the not-so-implicit threat of litigation under environmental laws and God only knows what else. If you are given to rational thinking, the question virtually asks itself: wouldn’t a lawsuit like that be deemed frivolous by a rational judiciary, and promptly thrown out of Court? In a rational society, yes. But when it comes to environmental laws and their enforcement, who says that California, where eberybody has standing to litigate everything, is a rational society?

So stay tuned for further Carmageddon news — if any.

Further your affiant sayeth naught.

 

 

Is Speaking Out on Eminent Domain Abuses a Protected Form of Speech Under the First Amendment?

We noted a while back that in St. Louis, the municipal authories banned the posting of a sign protesting abuses of the power of eminent domain. Here it is:

Originally, our reaction was to suppose that this bizarre municipal effort would have a half-life of a fruit fly, since it was obviously a violation of the First Amendment freedom of speech provision. Right? Wrong! Not so clear, as it turned out.

The U.S. District Court in St. Louis agreed with the city and upheld the municipal ban. Which left your faithful servant shaking his head in bewilderment. That meant that under the benign umbrella of the First Amendment you are free to violate a federal statute and falsely claim to be a Congressional Medal of Honor winner, you can harass the grieving family of a fallen soldier at his funeral, publish a supposedly humorous piece about an asserted sex act between a revered religious leader and his mother (in an outhouse, yet), march through Skokie, Illinois, calling for ethnically-based mass murder, etc., etc. But you couldn’t put up a sign whose content dealt with an ongoing, important public dispute that has been very much in the public eye. Sheesh!

Fortunately, this story has had a happy ending. The U.S. Court of Appeals for the 8th Circuit just reversed that wrongheaded trial court decision, holding that the provisions of the offending ordinance were content based (it allowed other signs based on their contest), which made its pertinent provisions unconstitutional. Whew! See Neighborhood Enterprises v. City of St. Louis, No. 10-1937, opinion filed July 13, 2011.

For a link to the opinion go to today’s post on www.inversecondemnation.com

Congratulations to the folks at the Institute for Justice who handled that case for the owner of the property displaying this sign.

 

More Worthless Government Eminent Domain Plans — This Time from Brooklyn

The misbegotten Atlantic Yards redevelopment project in Brooklyn is in the news again. That’s the redevelopment project that gave us that towering effort in judicial disregard of the courts’ traditional duty to review government acts for unconstitutionality, known as Goldstein v. Pataki on the federal side and Goldstein v. Empire State Development Corp. on the state side — both concluding that, gee golly, the courts are just plumb unable to review eminent domain takings for redevelopment with any degree of judicial independence, and must just rubber-stamp whatever the condemnors want to do.

By a decision filed on July 13, 2011, dealing with the environmental review aspects of that project, New York Supreme Court Justice Marcy Friedman took a dim view of the condemnor’s use of a 10-year build-out time for project planning purposes, when in fact the condemnor concedes that it will take some 25 years (or more) to build out Phase II of it. Accordingly, the court held — not that the project, having been approved on the basis of untrue projections, is improper (don’t be silly) — but that additional environmental studies will have to be performed (which will undoubtedly take more years). So if we may lapse into New York patois: This, you call a remedy?

The plaintiff, Develop Don’t Destroy Brooklyn, understandably rejoices over this development, but it seems to us that all it is likely to produce is more delay and more pointless consumption of private and judicial resources. In other words, to quote that famous line from an old New Yorker cartoon, we say it’s spinach and we say the hell with it. What the this field of law desperately needs is some judicial intellectual integrity, courage and common sens, such as displayed by New York Appellate Division  Justice Catterson in his exemplary opinion in the Kaur case. Alas, Justice Catterson seems to be one of a kind, more’s the pity. But we can hope.

The DDDB press release may be found by clicking here — it contains a link to Justice Friedman’s July 13th opinion. Have at it folks.

Oh, yes. In New York, as viewers of Law and Order know, “Supreme Court” is not an appellate court, but a trial court — the lowest court of general jurisdiction. What everybody else calls “Supreme Court” is known in New York (and in Maryland) as the Court of Appeals. Go figure. But this seemingly terminological point implicates a bigger problem. The city (ESDC) can appeal Justice Friedman’s decision, and if it does, who knows what the New York appellate courts will decide? After all, those are the folks who never see an eminent domain action they don’t like.

For This They Have Money

As our steady readers know, we take a dim view of the California courts’ oft-expressed but unjustified and never retreated from assertion that if condemnees are paid “too liberally” — meaning for all their condemnation-caused, demonstrable economic losses — an “embargo” will have to be declared on public projects. This is demonstrable nonsense because, if nothing else, the holding of the eminent domain case in which the California Supreme Court uttered this shibboleth, was repealed by the legislature in 1976, and as you know, no “embargo” has descended on the Golden State in the ensuing 35 years, and public projects of all sorts have continued to be built.

But California sure has ample funds to waste. We offer without comment the following from Jack Dolan, Prison Doctor Gets Paid For Doing Little and Nothing, L.A. Times, Jul. 13, 2011, p. A1:

“The highest-paid state employee in California last year, a prison surgeon who
took home $777,423, has a history of mental illness, was fired once for alleged incompetence and has not been allowed to treat an inmate for six years because medical supervisors don’t trust his clinical skills.”

For that they have money — for compensating people fully for damages inflicted on them by eminent domain, they don’t.

Why California Is in the Sorry State It’s In – Take 2

We must have been asleep at the switch, or maybe the New York Times did not see fit to include this news item in its national edition, but somehow a fascinating news item slipped past us. Check out David Barboza, Bridge Comes to San Francisco With a Made-in-China Label, N.Y. Times, June 25, 2011.

It informs us that the new San Francisco-Oakland Bay Bridge that is being constructed to replace the old bridge that was badly damaged in the 1989 Bay Area earthquake, is being built — are you ready? — in China. That’s what it says, and while we have seen some pretty strange opinions in the pages of the New York Times, generally, you can rely on its factual reportage.

Modern technology allows the construction of a major bridge on the other side of the world, where the bridge sections are fabricated, loaded onto ships, transported across the Pacific, and assembled on site in good ol’ Baghdad-by-the-Bay. All this, with the exception of assembly of the bridge sections, is done with dirt cheap Chinese labor while American workers stand in line at the unemployment office. How cheap, you ask? A mere $12 per day, up from $9 per day.

An undertaking of that magnitude requires a lot of skilled labor, and indeed the Shanghai Zhenhua Heavy Industries Company that is doing this work over there “put 3000 employees to work on the project: steel-cutters, welders, polishers and engineers. The [Zhenhua] company built the main bridge tower, which was shipped in mid-2009, and a total of 28 bridge decks — the massive triangular steel structures that will serve as the roadway platform.”

Couldn’t we do that over here, particularly given the high levels of unemployment in California? Actually, no. So says a project director for the American Bridge/Fluor Enterprises who is quoted by the Times as saying: “I don’t think the U.S. fabrication industry could put a project like this together.”. . . “Most U.S. companies don’t have these types of warehouses, equipment or the cash flow. The Chinese load the ships, and its their ships that deliver to our piers.”

For once, we are struck dumb in our search for something appropriate to say. Not only that, the Times informs us that our former Governator, Arnold Schwartzenegger himself has “strongly backed the project” and and even visited Zhenhua’s plant last September, praising “the workers that are building our Bay Bridge.” That musta been right before he came back to California to deliver a speech about how, given the dire unemployment situation at home, we must create more jobs, jobs, jobs over here.

Beverly Hills Is at It Again

We just came across an item in the Canyon News, a small local newspaper, reporting that the City of Beverly Hills is about to allocate $350,000 to fight the proposed extension of the Los Angeles subway under it. Daniel Antolin, City Eyeing $350,000 For Subway Fight, Canyon News, July 7, 2011. The money is planned to be spent on “legal services, public relations and consulting firms, in addition to experts in the field of tunneling and geotechnics.” It appears that the good folks in Beverly Hills go first class in every way, even when it comes to crying NIMBY!

This caper has precipitated some nostalgia on our part. Being a fully credentialled old geezer, your faithful servant remembers a similar donnybrook way back when CalTrans (or the State Division of Highways as it was then known) had a grandiose master plan whereby there would be a freeway crossing the Los Angeles basin every five miles or so, and one of those routes would be known as the Beverly Hills Freeway.

Of course, then as now, the Beverly Hillies took a dim view of such doings, particularly when it appeared that in a stunning display of foolhardiness CalTrans’ route of choice would run through the sacred soil north of Sunset Boulevard, an area where God would live if he could only afford it. “No way!” said the local folks, and that was that.  The freeway route started shifting south, so that by the time it came to a stop, you could practically chuck rocks from it onto the right of way of the Santa Monica freeway, whereupon CalTrans acknowledged reality and canceled the Beverly Hills Freeway.

You can read all about it in M.L. Gunzburg, Transportation Problems of the Megalopolitan, 12 UCLA L. Rev. 800 (1965).

While there is something about Beverly Hills that inspires snide commentary, we wish to assure our readers that for all its ostentatiousness  we actually like that community. Our warm feelings go back to 1955 when your faithful servant came back to his car (a 1952 Chrysler convertible) that he had foolishly parked in front of a Beverly Hills parking meter without taking the trouble to insert the required nickel (yes, a nickel) into it, only to discover that instead of a parking ticket, his windshield was adorned with a printed note from the BHPD, welcoming us to Beverly Hills, and politely suggesting that next time we decide to park at a metered space in that lovely community, it might be a good idea to insert the aforementioned nickel into the meter. So how can you possibly dislike a classy community like that?

 

Why California Is In the Sorry State It Is

A recent news item has brought to mind why California is in the sorry economic condition in which it finds itself. First, check out www.inversecondemnation.com – the blog of Robert Thomas who faithfully keeps his readers informed on the latest to emerge from the courts on the subjects of takings and land use. Today’s lesson (July 8, 2011) comes from a California Court of Appeal decision rejecting a familiar NIMBY plaint opposing on supposed environmental grounds a proposed housing development of some 500 homes on land that ostensibly allows 1000 of them. Those numbers, however, were not the problem. In California, when zoning allows a given number of homes, that is not deemed legislation, but merely a suggestion that the local regulators may or may not choose to follow. In this case, the court rejected the NIMBYs’ attack on the development, launched on a variety of grounds, but in the process revealed just how stark raving crazy California land use law can get. Rather than going through the whole megilla ourselves and thus duplicating Mr. Thomas’ good work, we quote his concluding observation, which speaks for itself and hits the bull’s eye.

“While it’s good to see a court recognize that enough is enough, it’s fascinating also to see what the court considers to be an example of where environmental review “worked.” Residential zoning approved 30 years ago. An application for development made 20 years ago. Sixteen years of environmental review. Cutting the number of homes 50%. A five-fold increase in open space on the land (read: no homes there). In-lieu payments in the “millions of dollars.” Protection of cultural resources. And even after [that extended] environmental review (indeed, based on it), a challenge that the EIR didn’t get it just so.”

The case is Clover Valley Foundation v. City of Rocklin, Cal. Ct. App. docket No. C061808, filed July 8, 2011.

What is scary about this case is not the horrific saga of government delay and obfuscation that by our lights could not have been in good faith, and that necessarily translates into the unconscionable cost of California housing, but that the court allowed as how this was a case of the state environmental laws “working.” Yes indeed, that’s what the court said. We’d hate to see what their California Lordships would consider a situation in which environmental laws weren’t “working.”

Taking Land But Not Using It – CalTrans Is at It Again

(Part III)

Gold-Plated Roofs in South Pasadena

In a front-page story, the Los Angeles Times reports that CalTrans is at it again. Jack Dolan, Sky-High Prices for Roofs on Caltrans-Owned Homes, L.A. Times, June 19, 2011, at p. A1. This time it is wasting not-so-small fortunes on maintenance of homes it had acquired years ago for the completion of the I-710 freeway (linking Monterey Park and Pasadena) that somehow never came about.

In the most determined efforts we have ever seen, the City of South Pasadena has fought CalTrans politically to a standstill, and has prevented the construction of that freeway link because it does not want it to cut across the city. You could say that South Psadena put the “Not” in the expression Not In My Back Yard (NIMBY). But while the city was fighting the freeway, CalTrans was acquiring land for its planned right of way, and now is stuck with it.

To be fair, the prevailing situation, in which the state became the owner of a bunch of homes located within that planned right-of-way is not entirely its fault — it really meant to build that freeway, but it underestimated the city’s tenacity and effectiveness in opposing it. All that, however, is no justification of has gone on since CalTrans’ aquisition of all that land in South Pasadena. Since CalTrans was unable to proceed with its freeway, it decided to save money by not demolishing the homes it acquired, and renting them out while it waited for a green light for its freeway, that never came. In the meantime, years (make that decades) have gone by and CalTrans, in its capacity as a landlord of those houses became responsible for their maintenance. And here is where the fun began.

According to the L.A. Times story CalTrans has been spending outlandish amounts of money on maintenance, such as, for example, paying $171,508 for the replacement of a roof on one of those houses that has been sitting empty for at least a decade, according to a former CalTrans employee quoted by the Times. How is that possible?

To begin with, CalTrans took the position that the homes in question are historical, and as such cannot be just repaired — they have to be restored to historical standards. Restored in order to be torn down for a freeway? Yep. That’s our beloved California bureacracy in action. And before you expend any sympathy on CalTrans’ plight in being caught in that Catch-22 predicament, be advised that another arm of the state, namely, the State Historical Preservation Office, takes the position that what CalTrans says just ain’t so. The Times  quotes the Preservation Office head as characterizing CalTrans’ designation of these houses as historical, to be “bogus.” The CalTrans honcho’s response: “I misspoke in referring to all of these projects as historic structures.”  So how did those folks run up six-figure tabs on the replacement of ordinary roofs on ordinary homes? Good question.

The culprit turns out to be “a ‘whopping fee’ tacked onto each project. Broken into a series of separate charges, the fee went to Direct Construction Unit, a small arm of the state’s General Services Departm. It amounted to nearly 20% of the cost of each job, the records show.”

And that, folks, is the same CalTrans that tends to whine in court that if it has to pay full compensation to people whose homes it takes by eminent domain, urban civilzation as we know it will come to an end.

Oh. We almost forgot. The Times story features one particuar incident in this fiasco, that cannot go without mention. CalTrans blew $103,443 on another new roof which turned out to leak. When the tenant complained, “[h]e was evicted in a dispute with Caltrans that began over the roof. “

Your tax money at work.

 

Land Use Institute Program Reminder

The American Law Institutue – American Bar Association (ALI-ABA) 27th annual Land Use Institute will take placve this year in Boston, on August 17-19, 2011. This is a well regrded and well attended program that includes material on eminent domain and inverse condemnation.

For a copy of the program brochure containing detailed information on the program, its topics and its speakers, contact ALI-ABA, 4025 Chestnut St., Phioladelphia, PA 19104-3099, telephone (800) CLE-NEWS. Or go to http://www.ali-aba.org/ct020