It’s old news to eminent domain mavens that often the municipal plans for a new public or not-so-public improvement, that are presented to courts in cases where the hapless owners challenge the right to take, undergo a miraculous transformation after they are rubber-stamped by compliant judges. This sort of thing goes back to Berman v. Parker, the 1954 U.S. Supreme Court case approving the taking of private land from its rightful owners in order to reconvey it to a chosen redeveloper who then goes on to build purely private malls, condos, car factories and dealerships, or even casinos in some of the best neighborhoods in Manhattan, in the hope of makiing oodles of money, while the owners of the taken land are undercompensated.

In Berman, the gimmick was that the redevelopment plan that was sold to the Supreme Court provided that at least one-third of the new dwellings built on the site of the taken properties would be low cost rentals, renting for no more than $17 per room, per month. The ostensible idea was that this would improve the lot of the poor folks who lived in the slums of Southwest Washington, and who would thus gain decent housing at affordable rates. Yeah! Ri-i-i-i-ght. In reality, as described in Amy Lavine’s article Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010), after the taking was approved in Berman, the ordinance was amended to eliminate that provision, and the poor folks in Southwest Washington were shoved aside and crowded into other slums in the District of Columbia, to make room for more upscale inhabitants who replaced them, giving rise to the bon mot that “Urban renewal is Negro removal.” A few years after Berman, the Wall Street Journal reported that affluent tenants of the new apartments built on that site, were staging a rent strike to protest high rents. So much for low cost housing.

Now, we learn of another bait-and-switch gimmick in New York arising from the proposed Willets Point redevelopment project . Willets Point is a kind of neighborhood that though butt-ugly, is indispensable to the functioning of a modern city. You have to have some place to put all those car repair shops, junk yards, and other unlovely businesses that are essential to modern living. Ah, but that very feature of these neighborhoods is what makes them vulnerable to charges that they are “blighted” and as such proper objects of redevelopment. Which, if you think about it, is nonsense. Where else are you going to put inherently grundgy enterprises of that kind? Park Avenue?

So the city has begun the process of establishing a redevelopment project that would take the 62-acre Willets Point area and replace its current land uses with, well, the usual sort of stuff that redevelopment produces. Which can be outrageous for several reasons, notably the reverse Robin Hood nature of the process that takes from small, middle-class owned businesses and gives to the wealthy folks with city hall connections. In the case of Willets Point, the problem is acute because most of the properties in the redevelopment project area are devoted to business uses, and New York follows the outrageous and archaic rue that makes losses inflicted on business owners when the premises on which their businesses operate and they cannot relocate, non-compensable. And please spare us the BS about the Relocation Assistance Act calling for “compensation” in such cases. Why BS and why the quotation marks? Because, first of all, by its terms the Act is unenforceable, and it limits such compensation to $10,000. These days, for that kind of money you can’t buy a decent pushcart, much less a real business. So very often, takings of land on which small, one-location businesses are situated, spell their end. Back in the heyday of redevelopment, when hundreds of thousands of people were being displaced by redevelopment annually, a study by the Commission on Intergovernmental Relations disclosed that some 80% of small, one-location, individually-owned businesses did not survive a condemnation.

So the property owners in Willets Point, almost all small business owners, are rightly incensed at what appears to be in store for them.

But we promised to talk about “bait-and-sw itch,” didn’t we? Well, in the case of Willets Point, the environmental impact report (that was duly approved by a New York trial court) provided for the construction of some highway off-ramps, but it turned out that the city was talking out of both sides of its mouth. It represented to the court that it would build those ramps, but in its submission to the Federal Highway Administration it represented the opposite. Which, in the words of Rick Hills of the PrawsBlawg is “doubly odd because the two reports were authored by the same consulting firm.” Click here.

So far, this would appear to be a dog-bites-man story — par for the course. We actually wrote an entire law review article on this subject – Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Plans — Sorry About That, Justice Stevens, 39 Urban Lawyer 529 (2007). But it appears that things are different here because this is not a right-to-take case — it’s an environmental review case. Moreover, the city came across an intellectually honest judge who is not about to take this sort of stuff lying down. For the opinion of Judge Joan A. Madden, in Ardizone v. Bloomberg, NY Supr. Ct. Index No. 103406/09, filed December 6, 2011, click here. Quoth her Honor:

“I relied upon the City’s representations. As the City has now changed its position and is seeking to exercise its powers of eminent domain without approval of the ramps, in direct contradiction of its prior representations, and based on the significance of the ramps to the plan, I conclude that the integrity of the decision-making process has been impacted and sufficient reasons exist for me to consider vacating my prior judgment.”

So is it back to the drawing board? A definite maybe. The order calls for further proceedings to determine whether the court should exercise its inherent power to look into this situation, although since the right-to-take issue is pending before the New York Appellate Division, that determination will await the outcome of that appellate proceeding.

Being a cynical curmudgeon when it comes to adjudications of eminent domain issues, we are not holding our breath while waiting for justice to be done. But to see an intellectually honest judge in action in one of these cases, particularly in New York, is a good thing. So we conclude with three loud “Attagirls!” for Judge Madden, and an invitation to our readers to stay tuned.

Who knows, though this is New York, it is possible that justice will be done. Enjoy it if and when it happens, but don’t bet on it.

The annual ALI-ABA program on Eminent Domain is coming up on January 26-28, 2012, in San Diego. Good program in a great place.  It has been consistently the best and best-attended program on eminent domain for the past three or four decades. It will cover all sorts of topics from developments in the law, to trial and settlement techniques, and of course valuation. It’s a good place to learn, to meet other eminent domain mavens, and to get feedback on your own ideas.

To get the brochure, click here.

The crooks are at it all over the world. The latest dispatch on government abuses of land owners comes from Myanmar (Myanmar’s Courts Subvert Rule of Law, Activists Say, December 4, 2011, at p. 18, news  section — click here for the N.Y. Times article) where the government has been seizing land ostensibly for “government buildings,” that were never built, with the taken land later turned over to “companies with ties to the military” (which runs that country). The problem is growing.

But resistance on the part of the population is also growing, most recently with a protest march of some 300 people, which is a big deal in a totalitarian country run by a military junta, where citizens who speak out get arrested and charged with phony “crimes” (e.g., owning a fax machine without a government permit).

The leader of the protest movement, a lawyer named U Pho Phyu (who has been jailed and disbarred for his trouble), is quoted as charging that local land laws are being rewritten for the benefit of “favored allies of the government, including former military officers and their businress associates.”

We dig that part because, as it happens, California environmental laws have just been rewritten to favor the big boys — developers who propose to build $100-million-plus projects — who have just been granted a special, speedy judicial review process of their compliance with environmental laws, while others who propose smaller projects, may have to slog through a bureaucratic maze for years (click here ). Which is not to say that California is like Myanmar, but it illustrates a verity that just laws must be even-handedly applied if they are to command respects. And that goes for the courts too.

Our recent post about the civic, moral and economic disaster in Minnesota, whereby that state’s supreme court approved the taking of the subject property for redevelopment in the Eagan case (click here https://gideonstrumpet.info/?p=2380), even though the court knew and expressly acknowledged in its opinion that no redevelopment was taking place, reminded us that this isn’t the first time such a thing has happened up there.

Take a look at Johnson v. Minneapolis Community Development Authority (Minn. 2003) 765 N.W.2d 403. Were we to describe here what went on in that case, this would be a very long post at the end of which you might not believe us, so you better read for yourself what the Minnesota Supreme Court had to say about the Johnson saga of municipal chicanery and bad faith. Also see an earlier case arising out of the same redevelopment, La Societe Generale Immobiliere v. Minneapolis Community Development Authority, 44 F.3d 629 (8th Cir. 1994) in which the federal court of appeals reversed a fully-justified trial court award of $17,280,000 to a French developer who was enticed to become involved in a redevelopment project in Minneapolis — associated with the notorious Nicolette mall — only to be harassed and frustrated by the city, and prevented from completing the project. While the mayor was doing all he could to frustrate SGI’s proposed plans, the city represented to the owner that all was hunky dory, and the city was proceeding with the project. Don’t take our word for it. Do read that case. Whatever you may think about the legalities of the matter, the treatment those Frenchmen suffered was uncionscionable. You may also find a shorter version of that saga in a law review article appropriately entitled Cities Gone Wild, 32 Wm. Mitchell L. Rev. 1465, 1475 (2006).

And that wasn’t the end of it.  If you want to know what happened later, do read the Johnson opinion which affirmed an award of $4,348,000 to the mistreated land owners. It was another saga of delay, mendacity and abuse of property owners targeted for the taking of their land for redevelopment, that extended for years. Long story short, it was more or less a repetition of the Societe Generale disaster, except that this time, the Minnesota Supreme Court upchucked,  intellectually and morally speaking, and could not stomach the city’s conduct. So it reversed the Minnesota Court of Appeals holding and restored the trial court award.

So why are we writing about that sorry mess years after the fact? We’re glad you asked. In the process of writing about the Eagan case, it occurred to us that we should also find out what happened in the wake of Johnson. In the process, we discovered that after all that sturm und drang, after all the municipal chicanery and prevarications, the redevelopment project was not built and the Johnson parcel remains vacant.

Your tax money at work.

Keeping track (no pun intended) of the adventures and misadventures of California’s proposed high-speed railroad between San Diego and San Franciso, has become a sort of “Perils of Pauline” serial — old-timers may recall the movie serial of yore in which at the end of each episode the heroine was left tied to the tracks with a train coming straigh at her. You don’t remember that? No matter. We have a modern version, except this time it’s the train that’s in peril.

As you may recall, a few years ago, California voters — a gullible bunch that will vote for anything — approved a $9 billion bond issue to raise funds for a — ta, da! — high speed rail that would be built with federal aid and run between San Diego and San Francisco. One of the problems, however, turned out to be that the probable cost of that railroad is now estimated at $98 billion, and there is no way California (which for all practical purposes is broke) can lay its hands on that kind of money, even with federal aid.

Now, another bombshell comes from the nonpartisan state Legislative Analyst’s Office, which points out that when the voters authorized those piddly $9 billion, it was on the explicit premise that the funds would be used for usable high-speed rail, whereas now, the would-be railroad builders want to start by building a 130-mile stretch of ordinary rail tracks for the first segment  running  from “south of Bakersfield” to “south of Merced” — which is to say, from nowhere to nowhere — with a high-speed  upgrade coming in the sweet bye and bye. To say nothing of the fact that current plans call for start of construction before the environmental impact study is completed.

But if the Legislative Analyst is right, proceeding along these lines would be a violation of the terms of those bonds. And to make sure that things are taken seriously, there is an already-pending lawsuit seeking an injuction that would stop this boondoggle on the grounds that the voter-approved plan calls for high-speed trackage, not plain old regular tracks.

So stay tuned and see how it all turns out.

For the L.A. Times story bringing us these new facts see Dan Weikel, Bulet Train’s Funding Plan Faulted, L.A. Times, November 30, 2011, at p, AA1 — click here.