Monthly Archives: February 2012

Wanna Buy Detroit?

The Detroit News (Darren A. Nichols, Detroit Crisis May Force Sale of Crucial Assets, February 13, 2012) reports that Detroit is considering raising money to forestall a state takeover of the city by selling some of its facilities like Belle Isle, City Airport, and golf courses among other city assets. For the full Detroit News article, click here.

We hate to kick a fellow when he is down, but we can’t refrain from recalling all those Detroit redevelopment projects like Poletown and all those casinos, to say nothing of the city abusing property owners whose properties had been marked by the city for eminent domain/redevelopment acquisition, but not acquired  for a long time, while the city harrassed the owners in order to depress values and pick up their properties for a song — notably in the Foster case in which the federal courts put an end to it — or at least tried to — by holding the city liable in inverse condemnation. So if it comes to the city having to sell its assets to stay afloat, that mey be no more than justice. Maybe justice delayed but justice nonetheless.

Lowball Watch – California

The Los Angeles Times reports a settlement of the controversy between the San Gabriel Valley light-rail project and a property owner whose 4.8-acre tract of land is being acquired for it. Dan Weikel, Gold Line and Landowner Reach Accord, L.A. Times, Feb. 15, 2010, at p. AA4. For the entire L.A. Times article click here.

According to this story, the  light-rail officials originally offered the owner $5.8 million, which he rejected. There was also collateral litigation in which the owner charged members of the authority with conflict of interest and violation of environmental laws.

Bottom line: the litigation settled for $24 million which comes to over four times the original offer, and is exactly what the owner demanded to begin with. The light rail authority folks aver that, notwithstanding these figures, litigationg this controversy to its bitter end would have resulted in a two-year delay and cost an additional $100 million.

We can dig the delay, but doesn’t California law provide for quick-take, whereby the condemnor can take the subject land as soon as the condemnation litigation starts, with compensation determined later? It does.

Sometimes the Good Guys Win – Virginia

The Roanoke Times reports that the eminent domain reform legislation that would amend the state constitution to resrict eminent domain takings to genuinely public uses, has passed both houses of the Virginia legislature. Julian Walker, Eminent Domain Bill Passes in Virginia Senate,, February 14, 2012 – click on The Senate vote was 23-17. This new provision in the law will be subject to a popular referendum. The new provision in the law enjoys widespread support, but local government entities, cities and counties, are opposing it because they don’t want to pay the full amount of damages suffered by property owners in eminent domain cases, and want to consume the proverbial “free lunch” at the owners’ expense.

For our earlier take on the Virginia situation click on

So things are looking up in Virginia, but we won’t count the chickens until they hatch. Stay tuned.

Lowball Watch – New Jersey reports that a Paterson, New Jersey, jury brought in an eminent domain verdict double that of the condemnor’s offer. NJ Transit took by eminent domain a 3-acre parcel for a commuter parking lot. It originally offered the owners $1.6 million, but the owners rejected that offer. The case went to a valuation trial, and after deliberating for only 2.5 hours, the jury brought in a verdict of $2.6 million.

For the story,  see Nick Clunn, NJDOT Ordered to Pay $2.6 Million for Mother’s Lot,, January 27, 2012 A tip of our hat to the New Jersey blog for alerting us to this one.

Condemnation Blight – Once More With Feeling

We note that the property owners in River Center LLC v. The Dormitory Authority of the State of New York have retained Professor Larry Tribe of Harvard to represent them, and he has filed a petition for certiorari. Robert Thomas’ comments along with a link to the petition may be found here.  The opinion below (by the N.Y. Appellate Division) may be found at 905 N.Y.S.2d 18.

We wish Professor Tribe and his client the best of luck, but being the curmudgeonly type all these years, we feel compelled to mention that we urged the court to tackle this issue way back in 1973 — see Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation? 48 Notre Dame Law Review 765, 808-810 (1973) — with singular lack of success, although that article was relied on by the Oregon Supreme Court to reach the right result. It appears that the current Court either doesn’t understand this question or doesn’t care about the plight of condemnees whose land is first deliberately blighted and then acquired at the blighted price — a practice that SCOTUS ostensibly condemned over 60 years ago in the Virginia Elec. & Power Co. case.

In the meantimes, miracles do happen, so we’ll just stand by and hope for the best.

Lowball Watch – Missouri

The Columbia Daily Tribune reports that the City of Hallville set out to acquire a 148-acre farm property by eminent domain to “resolve sewer system violation.” Accordingly, it offered the owners $550,000, whereas the owners demanded $1.9 million. As is the custom in some states, before going to a valuation jury trial, the matter is decided by a board of commissioners (usually three well informed laymen). In this case, the board of commissioners awarded $1.25 million, or over twice the city’s offer. This is probably not the end of the story because in states using the commissioner system, a party dissatisfied with the commissioners’ award can usually demand and get a jury trial in court, and here it remains to be seen whether the city will avail itself of this option.

The wrinkle in this case is that according to this report, the owners have repeatedly presented an alternative solution for the city to increase the the size of its wastewater cell at a cost of about $400,000. The city refused the offer.

For the Columbia Daily Tribune story (Jodie Jackson, Jr., Panel Values Hallsville Farm at $1.25 Million, Feb. 6, 2012) click here.

Highway Trust Fund Going Broke?

Here comes news from those wonderful folks who brought you government insolvency. The Congressional Budget Office thinks that the hihghway trust fund will go bust in 2014. See Keith Lang. CBO Reports Highway Trust Fund Headed for Bankruptcy in 2014, The Hill’s Transportation, Jan. 31, 2012 – click here.

Have a nice day.

A Red Letter Day

We can’t imagine how we missed taking note of it, but February 1st was the day on which California redevelopment came officially to an end. From now on, it will be up to successor agencies (like cities) to take charge of CRA assets and dispose of them. We can’t wait.

For an article describing five recent redevelopment failures in Los Angeles, click here.


An Honest Man in Virginia

When legislative reform of eminent domain law raises its head, one can count on various government types rushing to the fore with lamentations that the end of the world as we know it is at hand, and that if the reform legislation is adopted, we won’t have any more public projects. You think we are exaggerating? Think again. Out here in la-la land, the California Supreme Court once wrote in an opinion that if condemnees were to receive full compensation for severance damages concededly inflicted on them by partial takings of their land, an “embargo” on useful public projects would have to be declared. No, we are not making this up. You can see it for yourself in People v. Symons, 54 Cal.2d 855 (1960). Of course, this was a classic “parade of horribles” argument, as lawyers tend to put it. It plumb wasn’t so. In fact, in 1976, the Symons rule was repealed by the state legislature, but during the 36 years that have elapsed since then no “embargo” had to be declared. You get the idea.

But things are different in Virginia. There, a constitutional amendment is before the electorate. If adopted it will curb the use of eminent domain, and require compensation for impairment of access and loss of business profits. Naturally, as you can imagine, the usual suspects are screaming to the high heavens that if this constitutional amendment is adopted, it’ll be curtains for ol’ Virginia, etc., etc. But in Virginia, there is a difference — an honest man has stepped to the fore and his argument has blown this BS to smithereens.

Virginia Attorney General, Ken Cucinelli, has been pointing out the obvious: if indeed adoption of the new law will cost the state so much, that means that Virginia property owners are now forced to absorbed those “excessive” damages without compensation, and public projects are now being built on their backs. The bill might cost the state money, Cucinelli said, but that money is the amount now being lost by landowners who aren’t fully compensated when their land is taken by state agencies, so making the state responsible for paying the full amount of losses now inflicted on condemnees will only provide real just compensation.

In other words, those losses (that now go without compensation) are incurred either way. They are either paid by the state or absorbed by condemnees. The only valid question is not whether they are paid, but who pays for them, and through what institutional arrangement. So if the state has to pay for the full extent of economoc losses it inflicts on innocent people when it takes private land, that won’t change the total cost one bit. It will only assure that those losses are paid for by the people who benefit from public projects — to wit, the public. Justice Holmes once wrote that the public, the same as everyone else, is only entitled to what it pays for. Sounds right to us.


A Good Word for a Good, Brave Man

This is another instance where we depart from our usual topic of eminent domain/land use to comment on a noteworthy individual or event. Today’s object of our admiration is the late Roger M. Boisjoly (pronounced Beaujolais, like the wine). Roger Boisjoly, who just passed away at the age of 73, was a rocker engineer who worked for Morton Thiokol, makers of large solid-propellant rockets. Those are the honkin’ big cylindrical devices strapped on to the outside of space shuttles, to give them the short extra boost necessary to get them into orbit, and to augment the cluster of  huge F-1 liquid propellant rocket engines that gave the Apollo space vehicles their main thrust.

Those solid propellant boosters were used on the ill-fated Challenger which blew up shortly after takeoff in 1986. The cause of the blowup was an explosion inside those solid propellant booster rockets, an event that shocked the nation and killed all those brave astronauts aboard. How did it happen? How could it happen? And what did that have to do with Roger Boisjoly?

The simple answer to these questions is that the propellant inside solid-propellant rockes is a highly combustible substance, that looks and feels like solid rubber. The problem is that unlike liquid propellants, its consumption of the solid propellant by fire cannot be controlled, except by the shape of the “grain,” or the solid chunk of the stuff inside the rocket. Which means that the shape of the grain must be carefully controlled so it does not burn any faster than its design calls for. If it starts burning faster than that, the combustion becomes uncontrollable, the pressure inside the rocket goes up, and . . kaboom! That is what happened in the Challenger booster.

To accomplish that, the grain must be carefully sealed within its designed space to control its burn rate, and in this case the seals took the form of large o-rings. But as ambient temperature drops below a certain level, the o-rings’ sealing capability becomes compromised and if ignited then, the fire bypasses the seals, ighnites the grain’s outer surface and becomes uncontrollable. And in this case, at the time scheduled for launch, the ambient temperature dropped below the specified limit.

But Roger Boisjoly, took note of this and urged that the Challenegr not be launched at that time. But the launch was behind schedule, and NASA as well as Morton Thiokol management were under pressure to get on with it. So, over Boisjoly’s vigorous objections, and an explicit warning that human lives were at stake, they ordered the launch to proceed. It did. The rest became tragic history when the Challenger blew up 73 seconds after launch.

So was Boisjoly hailed as a hero whose skill and insight would have prevented the Challenger tragedy if only he had been listened to? Don’t be silly. Instead he was perceived as a “whistleblower” and shunned by his colleagues. His employer, according to the New York Times, cut him off from further space work, even though he was awarded the Prize for Scientific Freedom and Responsibility by the American Association for Advancement of Science.

So we figure that those of us who remember these things, and who are into justice should take a moment to remember the bravery and determination  of a good man who risked  his career in an effort to save those poor astronauts from death, by simply trying to play by the rules of science. Ah, but as we lawyers know all too well, playing by the rules is a sometimes thing, isn’t it?

For a link to the New York Times story, click here.