Monthly Archives: April 2013

“Let ‘Em Eat Cake” Comes to Hawaii

There is a controversy going on in Hawaii, that is worth pondering because it demonstrates that when it comes to arguments over unconstitutionality and plain overreaching of land-use regulations, nothing that is advanced in defense of government land-use regulations is too stupid. Our old friend, Professor David L. Callies, of the University of Hawaii, wrote a law review article a short time ago, in which he criticized the Hawaii Supreme Court’s patently biased record of favoring the environmentalists’ contentions at the expense of property owners, noting the court’s assertion that the right to exclude strangers from your land is a “western” concept, alien to Hawaii law. Never mind that the U.S. Supreme Court has held the contrary in the Kaiser Aetna case where their Supreme Lordships made it clear that, no, they have no right to demand that a private marina in Hawaii give up its right to exclude, and admit members of the public into a private yacht club.

Naturally, Professor Callies criticism precipitated a controversy and caused court defenders to, well, defend its record. Fair enough. But the problem is how some of those defenders have gone about it. One of them turns out to be the Hawaii Business magazine which, according to the April 10, 2013 post, Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use of our friend Robert Thomas who runs the www.inversecondemnation.com blog goes like this:

 “Maybe our regulatory system is  working just as it was designed to work. Instead of complaining about  our complicated land-use laws, or overzealous environmentalists, or  policy-making by the state Supreme Court, we should look inward. These  are laws, after all, that were written by elected officials: state  legislators, county councilors and constitutional convention delegates.  If we don’t like the laws anymore, we can elect officials to change  them.”

Can it be that the idiots who evidently run the Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment? As explained in Article VI, Clause 2 of the Constitution:

“This Constitution, and the laws of the United States enacted in pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

If you don’t believe us, just check out the pressies’ response to laws that in their opinion — and is there any other? — interfere with their First Amendment rights. Do you suppose that under those circumstances they would shrug off the provisions of the First Amendment as subordinate to  laws enacted by “elected officials” and advise complaining citizens to elect more sensitive legislative representatives? No? We don’t think so either.

Moreover, under the “reasoning” of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

 

 

 

Violence Over Land Seizures in Vietnam

Hidden as a little “squib” on p. 5 of the N.Y. Times of April 4, 2013, is a dispatch entitled Vietnam Farmers Sentenced to Prison For Resisting Eviction From Their Land. It reports that a family of Vietnamese fish farmers resorted to violence (using homemade guns and land mines) to protect their land from seizure by a state eviction squad. However, the prime minister found on investigation that the attempted seizure was illegal, ordered the property’s return to the farmers, and ordered punishment for the members of the squad.

Nonetheless, the farmers were sentenced to two to five year prison terms, for attempted murder.

For the NY Times article, click here.

Lowball Watch – California

Word reaches us from Solano County, California, of another worthy entry in this category of eminent domain cases.

Solano County v. Valine, No. FCS032554, April 3, 2013, was a partial taking case. The county took 10 acres out of a larger parcel, splitting it into two parts, respectively 25 and 43 acres.  Condemnor’s deposit was $575,000, and the final statutory pretrial offer was $750,000 (raised from $700,000). The owner’s demand was $877,000.

The trial testimony of condemnor’s first appraiser was $320,420 for the take, plus $129,600 in severance damages. The second county appraiser testified to $350,408 for the take, and $124,000 in benefits, with no severance damages.

The jury verdict was $328,823 for the take, plus $924,148 in severance damages, for a total of $1,252,971, over twice the condemnor’s deposit.

They Never Learn, Do They?

Quotes without comment:

 “Fannie Mae, the nation’s biggest underwriter of home mortgages, has been under increasing pressure from the Clinton administration to expand mortgage loans among low and moderate income people and felt pressure from stock holders to maintain its phenomenal growth in profits.” . . . “In moving, even tentatively, into this new area of lending, Fannie Mae is taking on significantly more risk, which may not pose any difficulties during flush economic times. But the government-subsidized corporation may run into trouble in an economic downturn, prompting a government rescue similar to that of the savings and loan industry in the 1990s.” Steven A. Holmes, Fannie Mae Eases Credit To Aid Mortgage Lending, N.Y. Times, Sep. 30, 1999. Emphasis added.

Now we get the same story.

“The Obama administration is engaged in a broad push to make more home loans available to people with weaker credit, an effort that officials say will help power the economic recovery but that skeptics say could open the door to the risky lending that caused the housing crash in the first place.” Zach Goldfarb, Obama Administration Pushes Banks to Make Home Loans to People With Weaker Credit, Washington Post, April 2, 2013. Click here.

The Jedi Knight Strikes Back

First, a little memory test. Remember our post of last year, about George Lucas of Star Wars fame having a confrontation with Marin County over his effort to enlarge his Lucasfilm movie studio up there? Sure you do. How can one forget a confrontation between a famous Jedi Knight and a mob of rich NIMBYs? But if you don’t  remember, click here

The end of that story was that Lucas, bloodied in that confrontation, was seen retreating from his movie-studio plan, but vowing to return in an effort to build some — gasp! shudder! — low cost housing on his land. In Marin County?! The  area where a median home goes for $650,000? The same.

Today, April 1, 2013, at p. A1 (that’s the front page), the Los Angeles Times brings us the dispatch that Lucas, good as his word, is now making an effort to actually build those dwellings, working together with a local foundation interested in building affordable housing units. Egad! Click here

You have to understand, folks, that Marin County is — in the words of the L.A. Times — “California’s wealthiest county [that] has always brought its ‘green’ lifestyle and liberal social leanings into conflict. No Bay Area county has more protected open space — or fewer workers who can afford to live anywhere near their jobs.” It’s the sort of place where God would live if He could only afford it.

And the land-use permitting process being what it is, particularly in California, and even more particularly in Marin County, that means hearings before county land-use authorities. The LA Times gives us only hints and glimpses of the elitist nonsense that is part and parcel of these proceedings (like “we mustn’t let those poor folks live near a freeway, because there the air is polluted by car exhaust fumes,” and “we can’t let those poor folks live away from freeways because their transportation needs will go unmet,” etc.). So take our word for it, they sound like a bunch of characters from Myra McFadden satire.

To get away from self-parody, do read something serious about that place and its inhabitants. We recommend a wonderful book by Bernard J. Frieden, entitled The Environmental Protection Hustle (MIT Press 1979).  The late Professor Frieden was at the time Chairman of the MIT planning department. His book is short, lucid, readable and richly supported by facts provided or referred to in the endnotes. We recommend you read it if you have any interest in modern land-use.

In the meantime, back in Marin County, county planners say that the subject land is suitable for around 240 units, “although,” says the Times, “no plans for construction have been submitted.” Maybe this summer.

Maybe. Then again, maybe not. Stay tuned.

 

The New York Times Lambastes Justice O’Connor’s New Book

We took time out this past weekend to peruse the book section of the Sunday New York Times, and in the process came across a doozy in the form of Adam Liptak’s review of Justice Sandra Day O’Connor’s new book Out of Order. Wow!

Adam Liptak, as you may recall, is the NY Times SCOTUS reporter and Justice O’connor is the lady who wrote the ferociously pro-government opinion in Hawaii Housing Authority v. Midkiff, leaving virtually nothing of the “public use” limitation on the eminent domain power to take private property. She is also the lady who wrote the ferociously pro-property-owner dissenting opinion in Kelo v. New London, contradicting almost everything she had to say in Midkiff, without disavowing it. Oh well, as the Italians say, La donna e mobile.

Anyway, Mr. Liptak doesn’t think much of Justice O’Connor’s exertions as an author, and slams her book good and proper. See Adam Liptak, Summary Judgment, N.Y. Times Book Review, March 31, 2013, at p. 8.  Click here.  We could go on, but let’s let Mr. Liptak give you the essence of his book review in his own words:

“[O’Connor] has a lot to say. But . . . she is not saying it here. Instead, she has delivered a disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court. ‘Out of Order’ is a gift shop bauble, and its title might as well refer to how disorganized and meandering it is.”

Anything else? You bet. Liptak concludes:

“The larger problem is not that Justice O’Connor’s little sketches and lessons are wrong. Quite the contrary. The problem is that they are empty. She writes correctly that ‘the court’s only weapon is moral authority.’ But she refuses to give this and similar sentiments substance.”

Well, we don’t know about that last sentiment as applied here, because — though Liptak fails to deal with it — the Supreme Court’s biggest pratfall in modern times (as acknowledged by such diverse personages as Justices Stevens and Scalia) is Kelo v. New London which — surprise, surprise — is not even mentioned by Liptak. It seems to us that when the Supreme Court hands down a 5 to 4 decision that is despised by some 90% of the population, and the redevelopment project which it approved as examplary of “good planning” is a total and complete failure (after wasting some $100 million in public funds), it behooves their Lordships to take another look at it in an effort to ascertain whether it possesses that “moral authority” that according to Liptak (and to Justice O’Connor) lies at the heart of public respect for judicial handiwork, and presumably enables courts to speak with authority.

At least Justice O’Connor was on the morally and civically right side of that issue in the Kelo debacle. The New York Times, on the other hand, was on the wrong side, and we have no reason to believe that Liptak ever deviated from the Times’ editorially embraced but morally deformed “party line.”