Monthly Archives: June 2018

US Solicitor General’s Office Is Born Again

We haven’t yet gone through the US amicus curiae brief just filed by the federal government in the Knick case, but we have seen it and its bottom line is a suggestion to the Supreme Court that it vacate the lower court decision and eliminate from the law the requirement of having to first litigate takings claims in state court. This would eliminate the previous lower courts’ holdings that doing so amounts to the state court judgment becoming res judicata or issue preclusion, thus preventing the aggrieved property owners whose property has been taken without compensation from ever having their federal constitutional claims adjudicated in any court — state or federal.

This is a departure from the federal government’s usual pro-regulator position in these cases.

We can’t wait to see how the “police power hawks” will react to this development. Bottom line: the stakes of the Knick case have just gone up significantly.

Lowball Watch — California

A tip of our hat to Brad Kuhn who runs a blog on California eminent domain, and who reports the settlement of an eminent domain case in Palm Springs, that qualifies for inclusion in our “Lowball Watch” department. The taking involved a 29-acre former Palm Springs mall. The condemnor was a private college (they have the power of eminent domain in California).

The condemnor’s offer was $9.6 million; the case settled for $29 million. No details on what issues divided the parties’ original positions.

Brad Kuhn, College of the Desert to Pay $22 Million to Settle Eminent Domain Case, April, 25, 208.
Go to https://www.californiaeminentdomainreport.com/

Calling All Penn Central Junkies!

Remember the Penn Central Transportation Co. v. City of New York case? If you don’t, who can blame you? But if you are sufficiently interested to do some reading about it now, check out an article in the New York Times that somehow slipped by us, and that will provide you with an up to date status of the forgotten part of the Penn Central litigation, namely Grand Central Terminal’s transferable development rights. Those rights were mentioned but not really discussed by the US Supreme Court in its famous — or infamous, depending on your point of view — opinion appearing in 438 US 104 (1979).

It looks like now, some 40 years after the Penn Central opinion, those rights are finally being sold for heavy coin, being as the City of New York has rezoned the area around Grand Central, so those TDRs can be used.

https://www.nytimes.com/2018/03/02/nyregion/jp-morgan-chase-midtown-east-air-rights.html

For those of our readers who want to get into the litigational end of the Penn Central controversy, we also recommend our article, Gideon Kanner, Making Laws and Sausages: a Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill Rts. Jour. 653 (2005). It’s on the long side but it will tell you all you need to know about the Penn Central inverse condemnation litigation, and then some. That was the — by our standards — infamous case in which the Supreme Court confessed that it “has been simply unable” to articulate a coherent statement of a regulatory inverse condemnation case, and instead of giving us some workable rules, gave us a list of three vague “factors” to consider when trying to decide whether the complained-of property regulation is so onerous as to require payment of just compensation to the overregulated property’s owner. Believe it or not, the US Supreme Court somehow managed to transmogrify its confessed inability to articulate any reliable rules governing regulatory takings into what it called “a polestar’ it thought would guide us through the doctrinal and logical mess that is the Supreme Court’s regulatory takings law.

So if you are interested in that subject, have at it folks.

The State of the State of California

We offer without comment an excerpt from urbanologist Joel Kotkin’s assessment of California housing trends:

“What’s causing California’s housing crunch? Misguided progressive policies that have slowed housing construction are at least partly to blame. Construction firms, for example, must pay “prevailing wages” when undertaking some new housing projects, raising building costs by as much as 37 percent. Recent new subsidized “affordable” units in the Bay Area cost upward of $700,000 to complete. Urban theorists and planners promote government-enforced “density” requirements on new developments, ignoring data that show high-density construction to be as much as five times as costly per square foot as low-density construction. Those costs make it harder for developers to profit from housing construction, and hence less likely to build, and when they do build, the higher price tag gets passed on to residents. Rent control now enjoys widespread support, but it, too, discourages new housing construction.

“California’s dramatic demographic shift has added its own problems to the housing crisis. Since 2010, California’s white population has dropped by 270,000, while its Hispanic population has grown by more than 1.5 million. Hispanics and African-Americans now constitute 45 percent of California’s total population. Almost a third of the state’s Hispanics and a fifth of its African-Americans live on the edge of poverty. Incomes have declined for the largely working-class Latino and African-American population during the economic boom, as factory and other regular employment has shifted elsewhere.”

https://www.city-journal.org/html/brownout-15828.html