Environmental Laws in California Being Misused

 

There is nothing new in the idea expressed in rthe above title. Our all-time favorite is a book by the late Professor Bernard Fieden, in his day Chairman of the Planning Departrment at MIT. Its title is The Environmental Protection Hustle (MIT Press 1975). If you haven’t read it, you should. It demonstrates in detail the widespread misuse of environmental laws as applied to California land-use regulation. Instead of protecting the environment, they are often used, or more accurately misused, to prevent construction of housing, so that the suburban NIMBYs already on the inside of desirable suburban communities can keep others out in order to keep their communities exclusive and pricy — they have little to do with environmental values like air and water quality, endangered species and all that stuff.

Now, it’s 40 years later and California has had a lot of experience with that stuff and with the litigation it endlessly spawns. So if you have an interest in the interface of land-use and environmental laws, we recommend an item in the current issue (September 2014) of the California Lawyer, at p. 45. It’s a featured part of a Roundtable Series — this one on Land Use — in which a half-dozen of specialized lawyers discuss the status of California environmental laws.

These folks have much to say about things, but the bottom line of their discussion is to deplore the fact that over the years California environmental laws have evolved into a mish-mash of contradictory policies whose outstanding feature is, not to protect the environment, but to serve as an obstacle to the creation of badly needed new development, notably housing, that has resulted in California cities unsurprisingly becoming the most expensive places to live. Take a look at Clover Valley Foundation v. City of Rocklin, 197 Cal. App.4th 200 (2011). There it took two decades, not to build, but merely to get a California Court of Appeal judgment approving a developer’s compliance with environmental laws — the court proudly announced that in that case, California environmental laws “worked” because it took only 20 years from a developer’s application to build a housing tract under existing zoning, to the court’s EIR approval. Res ipsa loquitur.

We like the featured conclusion of Roundtable participant Timothy A. Tosta who says (at p. 51):

“We cannot do the jobs of being asked to do and call ourselves ‘environmental lawyers’ with a straight face. It just doesn’t work anymore.”

All this is true enough, but the Roundtable participants, being practicing lawyers, carefully refrain from fingering those responsible for this wretched state of affairs: California judges. Behind every unreasonable, time- and resource-consuming interpretation of environmental laws are judges who eschew reason and at times basic fairness, in order to interpret environmental laws is such a way that they do accomplish the opposite from their intended purpose, which is to regulate — not frustrate — needed development. In order to survive, if only economically, California must provide housing for its population and facilities for its commerce and industry that provide essential employment to its population. Instead they function as a potent motivational factor in inspiring employers to leave California, or not to set up business here to begin with, like the Tesla car manufacturer just did. The Silicon valley geeks and the Hollywood “beautiful people” can afford the resulting cost of living in their chosen upscale California areas. So the present system keeps them in splendid isolation in selected communities that keep out the hoi polloi, so they don’t care. But mere mortals can’t afford to continue living under these conditions, and unsurprisingly, they increasingly vote with their feet.

 

Lowball Watch — Nevada

The Las Vegas Review-Journal reports that a taking of 15 acres out of a 56-acre parcel owned by MGM Resorts International settled for a total of $5.2 million on the condemnor’s  (Nevada DOT) original deposit of $$2.041 million. Evidently, the issue that divided the parties was compensation for impairment of access in the after condition. Arnold D. Knightly, Boulder City Bypass Eminent Domain Case Settled, Sep. 10, 2014., www.reviewjournal.com/news/lasvegas/boulder-city-bypass-eminent-domain-case-settled.

Lowball Watch — New York

We are reliably informed that in the case of Matter of West Ramapo Sewer Extension Project, 2014 N.Y. Slip Opinions 05889, August 12, 2014, on a condemnor deposit of $244,800, the trial court awarded a total of $8,100,000, which came to over thirty-three times the condemnor’s deposit. The Appellate Division affirmed, and awarded costs t o the owner.

Unfortunately, the Appellate Division opinion (cited above) does not provide any factual details or any insights into the legal issues that divided the parties. But it does make clear, albeit tersely, that the court applied sanctions (in the form of drawing inferences adverse to the condemnor) because its appraiser destroyed earlier versions of the appraisal report.

Rents Most Unaffordable in L.A.

UCLA Study Confirms that LA Rentals are Least Affordable in US , By Ben Bergman, Aug. 13, 2014:

“According to the Los Angeles Department of City Planning Housing Needs Assessment, the city needs to produce roughly 5,300 units per year that are affordable to moderate-income households or below (Los Angeles Department of City Planning, 2013). Los Angeles has instead averaged roughly 1,100 units per year since 2006. Since 2000, 143,000 rental units that had been affordable to those making less than $44,000 a year became unaffordable.”

Go to http://www.scpr.org/blogs/economy/2014/08/13/17145/the-average-los-angeles-renter-spend-almost-half-h/ for full story

We offer the following comment that we came across in reading this story:

The twist with this new study from UCLA is that it highlights the fact that affordability is not a new post-recession problem, but one that has been getting worse for decades. Justin Sullivan/Getty Images

 

In other words the cause of LA’s housing misadventures is government policies.

Lowball Watch — Virginia

WAVY.com (which we presume is a radio or TV broadcast station) reports the Virginia Department of Transportation settled a condemnation lawsuit in Portsmouth for over seven times its original offer. VaDOT took a part of the owner’s land for a new bridge, and offered $125,607 for the required strip of land, but the offer did not include any severance damages to the remainder of the land which was severely impacted by the taking that bisected the property. But after two years of hanging tough VaDOT came around and settled for a total of $925,000.

The story does not indicate why VaDOT failed to offer anything for severance damages at the beginning of the matter. See http://wavy.com/2014/08/14/vdot-settles-in-eminent-domain-lawsuit/

Lowball Watch — North Dakota

A dispatch from the North informs us that the town of Devils Lake acquired a parcel of land by settling an eminent domain case for $1.7 million. It originally deposited only $700,000 for the owner but the final settlement was almost two-and-a-half times that amount. http://www.inforum.com/content/devils-lake-pay-17-million-eminent-domain-case-0

Unfortunately this dispatch gives no details as to the issues that at first divided the parties.

Why California Housing Is So Expensive

Here we go again, folks. Today’s Los Angeles Times brings us what we like to call “sad but dependable news for the bald.” California housing is overly expensive, and the reason why that is so is that the supply of new homes is held down by local land use regulations. The Times illustrates the story with a prominently placed article, Andrew Khouri, New Home Shrinkage, LA Times, August 7, 2014, at p. B1.

“About 19,000 new homes will be sold this year in the six-county region — 53% less than the 25-year average average,. . .according to a spokesman for John Burns Real Estate Consultants in Irvine.

“The difficulty in winning construction approvals, . . . is a trend that long predates the housing meltdown and will probably continue long after. California has failed to build enough homes, relative to population growth, every year since 1989, according to a November 2003 report from a state senate committee.”

So what else is new? Reports like that, including two by Presidential Commissions on Housing, go back at least to the 1990s. So it boils down to what you were taught in Econ 101: When the supply is reduced while demand goes on, prices go up.

The handwriting on the wall was there for all to see as far back as August 30, 1998. That’s when the L.A. Times ran three — count ‘em, three — articles that painted a grim picture of the housing calamity that was overtaking the California housing market.

Truth Teller?

There is a fellow in California, who identifies himself as Dean (“Dino”) Cortopassi, and who has been running full-page ads in California newspapers, under the heading of “LIAR, LIAR, PANTS ON FIRE!” In them, he purports to expose government misrepresentations concerning California’s fiscal irresponsibility and the government’s concealment of the true financial picture.

We don’t know whether and to what extent Mr. Cortopassi’s allegations are true, but he sure lays it on the line. Our attention was attracted by his full-page ad in today’s LA Times (Aug.7, 2014, at p. A13). Like other Times ads, it’s not available electronically on line; you have to buy a hard copy of today’s LA Times to see it. The ad is devoted to allegations of overspending by the California Departments of Corrections and good ol’ Caltrans, particularly the latter’s overspending on the Bay Bridge. Interesting stuff, if true.

So we intend to keep an eye on his output and see if we can learn stuff from it.

But a word of caution: When we first posted this, we had trouble opening Mr. Cortopassi’s web page. But by this time of day (4:35 PM in California) all is well and you can open that web page containing his past articles by clicking on www.liar-liar.us . So please disregard the earlier (deleted) version of this post that appeared earlier today.