Monthly Archives: October 2011

Eminent Domain in China – How It’s Seen (or Not Seen) in Academia.

As our readers may know, there have been widespread riots in China over the confiscation of land which over there the government leases to farmers, but from time to time decides to kick them out and sell their land to developers, pocketing the price as a source of municipal revenue. Chinese farmers and other small property owners being evicted in this fashion take a dim view of this process, particularly since the compensation paid to them is grossly inadequate. See gideonstrumpet.info/?p=1923.  So we though it might be interesting to see what American law academics think of the rule of law in China and we turned with interest to a short article entitled The State of Chinese Law, published in The Law School, one of those slick alumni magazines published by NYU Law  School for 2011.

But we were disappointed to learn that the Chinese legal subjects these folks were interested in included none of this stuff. Instead, they were: Labor law, human rights, criminal law, and the justice system. Not a trace of property rights in general, or their confiscation in particular. Not a peep about those riots we have already alluded to.

But all is not lost in Academe. The good news is that next week, the William & Mary College School of Law, together with Tsignhua University, will co-sponsor a symposium on property rights, to be held in Beijing. It remains to be seen what participants in that Beijing conference will have to say about the violence over private property rights, that is going on in China even as we write.

This year, the recipient of William & Mary’s annual Brigham-Kanner prize is Justice Sandra Day O’Connor. Her remarks have been videotaped and will be available in a few days. For additional information about the Beijing conference, click here. By now it’s too late to make arrangements to attend, but the information you get when you click on the highlighted word, contains links to various detailed aspectes of the Brigham-Kanner conference in Beijing.

 

How Come Judges Who Are Insightful and Critical In Environmental Cases, Fall Silent and Proclaim Themselves to Be Incompetent to Review Government Action in Eminent Domain Cases?

We have commented on this subject before, and today’s Los Angeles Times brings it back to mind forcefully. In Bettina Boxhall, He Had Control Over California’s Spigot, October 9, 2011, at p. A37,  the Times tells the story of federal judge Oliver W. Wanger who has presided for years over the complex litigation involving decisions “how much water gets pumped from the Sacramento-San Joaquin Delta south to fields and cities and how much stays behind to sustain fish species pushed to the edge of extinction by the state’s thirst.” The article takes note of Judge Wanger’s harsh chewing out of federal government functionaries for what he called “deliberate deception and ‘bad faith’ on the part of the Interior Department.”

As far as this blog is concerned, however, of even greater significance is the Times’ tone of admiration for Judge Wanger and for his opinions as “several hundred pages long, replete with charts and technical analysis.” We were struck by this because when it comes to eminent domain, it’s a whole other story. There, courts (certainly federal courts) overwhelmingly take the position that a condemnor’s decision to take private property for a purported “public use” is “well-nigh conclusive,” and that the courts would never, ever dream of contradicting a condemnor’s decision to take on grounds similar to those used in overruling government decisions in environmental review  cases. It gets really sticky when it comes to issues of public necessity. In federal law necesity is not considered at all. In state courts (with the exception of Florida which allows limited inquiry into necessity) judges take the position that, even when state statutes require findings of public necessity before a condemnation can proceed, they will not “second guess” the technical decisions of condemnors’ engineers and planners. Why the difference?

The only justifications we have been able to find in the case law for this judicial attitude in eminent domain cases is that judges are not competenet to pass judgment on the complex technical matters that go into the condemnor’s decision how much land is necessary to meet the project’s needs or whether better and cheaper alternatives exist. Those decisions, say the courts in eminent domain actions, are for the condemnor alone. Out here in California, until 1976 our Supreme Court took the position that issues going to public necessity were altogether nonjusticiable, even when the resolution of necessity (required by statute before a condemnation case could be filed) was procured by the condemnor through fraud, bad faith and abuse of discretion. In 1976, the California legislature repealed that rule and substituted for it one holding that resolutions of necessity are not conclusive when procured through “gross abuse of discretion” or bribery.

Particularly egregious are cases where the condemnee establishes that the proposed public projects cannot be constructed because of lack of public funds or a legal impediment to the project (such as for example, a county proposing to take land for a right-of-way through an Indian reservation). There is even a law review article on this subject. See Thomas J. Posey, This Land Is My Land: The Need For a Feasibility Test in Evidence of Taking for Public Necessity, 78 Chi.-Kent L. Rev. 1403 (2003), discussing several cases of that sort. It’s a pretty good read.

So we end this post with the inquiry that began it: if judges are perfectly capable of “second guessing” technical decisions of government fnctionaries and their technical experts in environmental review cases, how come thay lose that capability when the same parties appear in their courtrooms in the context of an eminent domain rather than an environmental review case?

We seem to recall a line attributed to California’s late Chief Justice Roger Traynor who observed that the hallmark of a good judicial decion is that it leaves the losing party with an understanding of why he lost. But it seems to us that no person with a moral compass can say that of judicial decisions that refuse to do in eminent domain cases what judges routinely do in environmental review cases.

 

Mark Your Calendar — Another Eminent Domain Program Coming

CLE International announces that its 13th Annual Conference on Eminent Domain will be held at  the Hotel Nikko in San Francisco on November 3-4, 2011. The program is largely California-centered and will cover both developments in the law as well as litigation techniques, appraisal matters, relocation assistance, ethics, and a discussion of redevelopment’s future in California.

For further information and a copy of the program brochure contact CLE International, telephone (800) 873-7130, or cle.com/california.

“Federal Judiciary Ain’t What It Used to Be” — So Says Justice Scalia

The Associated Press reports via the Washington Post that in his congressional testimony, Justice Scalia allowed as how there are too many federal judges, deciding too many criminal cases, and that — here it comes — the quality of the federal judiciary is not what it used to be. See Associated Press, Justice Scalia Says Too Many Federal Judges, Too Many Federal Crimes Harm Federal Judiciary, Washington Post, October 5, 2011. Click here .

We agree, with the sorry state of federal eminent domain and inverse condemnation law being respectively Exhibits A and B for Justice Scalia’s concerns. Forty years ago, the late, great Professor Arvo Van Alstyne described the relevant decisional law as “largely characterized by confusing and incompatible result, often explained in conclusionary terminology, circular reasoning, and empty rhetoric.” (44 S. Cal. L. Rev. at 2). Not much has changed for the better and much has grown worse, notably the law of inverse condemnation.

 

 

Redevelopment in California — Can’t Tell the Players Without a Program

A tip of our hat to the folks running the Nossaman blog for their diligently compiled summary of the parties supporting and opposing the redevelopment litigation now pending on the merits before the California Supreme Court. It’s quite a list. Actually, two lists. Click here.

For the benefit of readers who may not be on top of such doings in la-la land, the California Legislature, faced with imminent insolvency, passed a law recently, requiring that redevelopment agencies pay to the state to make up for the funds they skim off the property tax revenues collected in redevelopment areas, or, failing that, go out of business.

The redevelopment agencies have petitioned the California Supreme Court to review the [state] constitutionality of this legislation, being that an election or two ago, the people adopted by initiative a provision barring transfer of local funds to the state.

Stay tuned.

 

In India, If You Take Land Improperly, You Have to Give It Back

It is one of the more obnoxious features of American eminent domain law that once land is taken, its [former] owner loses any right to reclaim it when it is put to uses other than the “public use” specified in the eminent domain action by which the condemnor acquired it. We wrote about it a while back; see Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning — Sorry About That, Justice Stevens, 39 The Urban Lawyer 529 (2007).

Out here in California, this sort of stuff is not uncommon. The best known example of this kind of shuffle is Dodger Stadium. It sits on land that was taken by eminent domain for public housing in the 1950s. But that housing was never built, and the land in question, located in Chavez Ravine, was transferred by the City of Los Angeles to the Brooklyn Dodgers to induce them to move from Brooklyn to Los Angeles. If you are interested in this sort of municipal skulduggery, do read the above-cited article which cites other examples. Probably the most egregious case of this sort was Beistline v. City of San Diego, 256 F.2d 421 (9th Cir. 1958). There the owner charged that his property had been taken for redevelopment but instead was resold to General Dynamics for a profit. The court denied relief.

Now we learn that this isn’t how they do it in India. The Hindustan Times reports that over there the Supreme Court of India has held otherwise. See Hindustan Times, Govt Cannot Change Purpose of Acquired Land, October 5, 2011 – click here.

There, The Kamataka State Tourism Development Corporation had acquired land ostensibly for a golf course/resort hotel. But the condemnor lacked the funds necessary for construction of the golf course, so instead, the land was transferred to a private developer who intended to construct group housing and “other corporate housing.” But when the former owner sued, the court took a dim view of that transfer and held that it was illegal, and that the land would have to be returned to the former owner upon his return of the compensation awarded him when his land was taken. Luckily there are Solutions for Corporate Housing in other reputable companies.

True enough, over here we supposedly have a rule of law that disfavors “pretextual” takings, but the courts mostly talk a good game about that, and actual cases providing relief under such circumstances are few and far between. This is true even in states that have statutes requiring a return of the taken land when it is not put to the public use for which it was ostensibly taken. By an odd coincidence, last week the U.S. Supreme Court turned down a petion for certiorari in a case charging a pretextual taking in Hawaii (if you want to read about that event, click here . )

So it looks like in India, they take such abuses of the power of eminent domain more seriously than we do.

 

 

More Twaddle From New London

Guess what? Newlondon.patch.com reports that the Yale Urban Design Workshop has come up with proposals for development of the 91-acre vacant tract of land on which the home of Susette Kelo and her neighbors stood. We will spare you going through all the planning babble contained in this effort. Suffice it to say that the report’s main goal is to “move towards a comprehensive design concept for the Fort Trumbull area that anticipates the creation over time of a distinctive mixed-use urban neighborhood, creating economic development opportunities built around historic and scenic resources of the site.” What “resources” of the site? Isn’t “the site” a vacant, weed-overgrown, trash-strewn parcel of land? But that does not seem to deter these folks. “The key additional development would be a resort hotel and conference center . . .”

And when is all that going to happen? We’re glad you asked. “Most of the proposals are projected to be long term developments, not likely to appear for two to 10 years.” So can’t anything be done right away? Of course it can – “The report recommends that some proposals can be implemented  immediately, such as the establishment of the Fort Trumbull Action Committee and Design Review Board and marketing of the peninsula.” Right! When in doubt, form a committee.

We tried hard to find it but nowhere in this dispatch is there any mention of the likely cost of this caper or the source of funding for it. And so it goes.

For the full newlondon.patch story click here .