Be Grateful. Give Thanks.

As the orgy of merchandising unfolds around us, and as too many places in the world (including the government in Washington) appear to be going to hell in a handbasket, for us in America there is nonetheless much to be thankful for.

Please keep in mind that however much you may be enjoying your holiday feast, that is not what this holiday is about. Do enjoy your turkey etc., but be thankful for everything else, not the least for the opportunity to get together with people you love, and, above all, for living in America.

The AIG Litigation (Cont’d.)

We assume that the case of Starr v. US is grinding on in the US Court of Federal Claims, with the government still putting on its defense case. We say “presume” because press coverage of it has pretty much dried up. But if you have an interest in that unusual case — in which Uncle Sam is being sued by shareholders of AIG who allege that the bailout terms that were imposed on it by Uncle on AIG were so draconian as to amount to a taking of property — you may want to take a look at a nifty bibliography of articles and on-line posts on this subject, compiled by our friend and colleague Robert Thomas on his blog www.inversecondemnation.com.

Go to his post of November 20th under the heading Links From Today’s ABA Talk On The AIG Bailout Takings Case – See more at: http://www.inversecondemnation.com/#sthash.lojPsvZr.dpuf

NY Times: Berman v. Parker Redevelopment Project Was a “Crushing Failure”

You remember Berman v. Parker, don’t you? Of course you do. Why else would you be reading this blog? But in case you are new to this stuff, Berman v. Parker was the 1954 U.S. Supreme Court case that approved large-scale modern urban renewal, and in the name of “slum clearance” allowed the taking of unblighted properties so the renewal project could proceed on an area-wide basis for the convenience of planners who would not have to bother with establishing slum conditions for each parcel they sought to take by eminent domain. Do reread the court’s Berman opinion (by none other that Justice “Wild Bill” Douglas). There, he waxed eloquent about the plight of slum dwellers, and about the wonders that redevelopment would bring to the area by eliminating slum conditions.

Of course, this was nonsense which since then has become a staple of judicial prose in eminent domain right-to-take cases. The Berman project was supposed to reserve at least one-third of the new dwellings to be built on its site as low-cost housing renting for $17 per room per month. But as soon as the Supreme Court gave this project its imprimatur that provision in the redevelopment law was deleted. The poor slum dwellers got no benefit from the project. Some 23,000 households were destroyed, and the residents were bulldozed into other, worse parts of the District of Columbia, where they had to pay higher rents for worse dwellings. If you want the whole sad, sordid story, do read an article by Amy Lavine, entitled Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010).

We know a lot of this stuff first hand because your faithful servant lived in that area, just north of Fort McNair, during the Kennedy administration – actually in one of those modern, glass and aluminum townhouses depicted in Lavine’s article on p. 463. By then, ten years after Berman, the entire area was an empty, razed wasteland, save only a couple of large apartment building that redevelopers put up along with a small shopping center and the aforementioned glass-and-aluminum townhouses, plus two historical buildings, two restaurants, and a pizza joint. The rest was wasteland.

What eventually replaced the razed buildings was a bunch of sterile, boxy structures that had all the warmth and charm of Stalinist architecture, only without the ornamental spires. Of course, the redevelopers weren’t in it for their health, and rents in the new buildings rose so high that in a few years they inspired a rent strike by their affluent tenants. Joanne Lublin, Tenants’ Revolt Hits A Luxury High Rise; Target if FHA, Wall St. Jour., Aug 13, 1969, at p. 12.

All this is merely prologue to the meat of this post. We learn from today’s N.Y. Times that — guess what? — far from being the wondrous new habitat envisioned by Justice Douglas, the Southwest/Berman redevelopment project turned out to be – are you ready? — “a crushing failure.” Eugene L. Meyer, Contrite Over Failed Urban Renewal, Washington D.C. Refreshes a Waterfront, N.Y. Nov. 18. 2014, at p. B10. Go to http://www.nytimes.com/2014/11/19/realestate/commercial/washington-dc-refreshes-a-waterfront.html?ref=business (mostly a puff piece about the wonders of the new re-redevelopment of the area).

Now we are told in breathless prose that the new, improved Southwest Washington area will be — what else? — “a great world class destination” and would be “as has been widely acknowledged” a “notable achievement.” But to give credit where credit is due (however little of it) that Times acknowledges that what the Berman project did was “to [give] rise to the pejorative term ‘Negro removal’ applied to urban renewal and derived from this failed experiment, and destroyed a viable commercial waterfront.”

But the greatest harm that Berman did was not the failure of one grandiose project, nor even the harm  done to the poor, indigenous African-American inhabitants of the area. Rather it was the harm done to the law that in the hands of Justice Douglas and his merry men established a precedent that destroyed any semblance of meaningful judicial review of eminent domain takings in spite of the constitutional limitation on takings requiring “public use.” As Professor Ellen Frankel Paul put it in her book Property Rights and Eminent Domain (1987) at p. 91,

“With one mighty obfuscation, Justice Douglas, in a decision that confused the law almost beyond redemption, dealt a devastating blow to the public use limitation upon what government can constitutionally take.”

The obfuscation of which Professor Paul spoke was the willful confusion of the police power (usually a non-compensable regulatory power used to eliminate public harm) with eminent domain (inherently an acquisitory, compensable expropriative power used to achieve public good). It was that confusion that led to such judicial absurdities as the Oakland Raiders case in which — who else? — the California Supreme Court held that the ”public use” limitation of the 5th Amendments permitted a city’s taking by eminent domain of an NFL franchise of a professional football team in order to prevent its owners from exercising their constitutional right to travel and moving their team to another venue. And of course it eventually led to the wholesale takings of property for the benefit of favored private businesses (Dean Starkman, Take and Give: Condemnatioon is Used To Hand One Business Property of Another, Wall St. Jour., Dec. 2, 1998, at p. A1). Eventually, it led to the wretched 2005 Kelo decision that by a 5 to 4 vote allowed the taking of an unblighted lower middle class neighborhood in New London, Connecticut, merely in an effort to generate more revenue. And as you may recall, it didn’t accomplish that either. Kelo proved to be another total and complete failure — the 90 acres taken in 2002 at an eventual cost of over $100 million is sitting empty until this day, generating no taxes and doing no one any good.

The moral of this story is that the Berman case mangled the law and laid the foundation for inflicting untold injustice on people all over America. By the end of the 1960s, redevelopment displaced hundreds of thousands of urban dwellers annually and was instrumental in contributing to the decline of urban America. See Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1550.

Follow up. After putting up this post, we came across this statement in the Washington Business Journal on line:

 ”Until recently, however the Southwest Waterfront area — largely cut off from downtown Washington by an elevated freeway — languished. The Waterside Mall, the center of Southwest commerce, deteriorated. Southeastern University closed. L’Enfant Plaza remained an imposing concrete jungle.”

Go to “ http://www.bizjournals.com/washington/print-edition/2014/03/07/after-nearly-a-decade-dcs-prime.html

Electrical “Zero Emission” Cars Aren’t

It has been an article of faith among environmentally conscious folks that “zero emission” electric cars are environmentally ipsy pipsy. No exhaust, not even an exhaust pipe. So that has got to be environmentally superior to gasoline powered cars that, no matter how efficient, emit some exhaust gases. Right? Wrong.

First of all, if you have a nodding acquaintanceship with physics, to say nothing of thermodynamics, you know that, as the Romans used to say, Ex nihilo nihil fit. Or, as they say in New York, for nuttin’ you get nuttin’. What electric cars do is not somehow generate pollution-free energy, but only transfer the products of combustion of hydrocarbons from the car’s tail pipe to the power generating plant from which they draw the electrical current necessary to charge their batteries. The savings in air pollution, if any, may inure  to the benefit of your immediate area, but on a global scale the pollution emitted from your tailpipe is only transferred to the area surrounding the power plant from which you draw power to charge your electric car (or plug-in hybrid).

Now, along come three spoilsports and tell us that electric, shmelectric, depending on where and when your electrical power is generated, your electricmobile may emit more air pollutants than a gasoline burning car. See Joshua Graff, Matthew Kotchen, and Erin Mansur, Are Electric Cars Greener? Depends, L.A. Times, Nov. 17, 2014, at p. A15. How can that be? Let the authors explain:

“We find, for example, that charging an electric car at night in the upper Midwest will generate more carbon dioxide per mile driven than the average conventional car that burns gasoline. In contrast, electric cars in the western United States and Texas always generate  lower emissions than even a hybrid, and this arises because natural gas [which they burn] rather than coal tends to be used for generating the additional energy in these regions.”

And to make things more complicated, the efficiency of gasoline-burning cars has been moving up, so this calculation is affected by how efficient your old-fashioned gasoline burning car is. If you are a mileage freak and are willing to compromise, some gasoline-burning cars in some places turn out to be overall no more polluting than electrical ones. We do not suggest that you forgo a spiffy Tesla or a thrifty Prius, if that is what floats your boat. But don’t delude yourself into supposing that on a global scale you are performing feats of air pollution reduction. You aren’t.

Federal Court Says “No” to Uncle Sam’s Effort to Condemn

Take a look at the November 10, 2014 opinion of the U.S. District Court for the Northern District of California, denying in part Uncle Sam’s motion to strike the condemnee’s affirmative defense to a taking of vacant land near San Francisco. United States v. 1.41 Acres, Case No. C 14-01781 WHA. The condemnee was the State of California, and Uncle Sam’s stated reason for the taking was to acquire some vacant land to enhance the utility and value of an existing holding of federal land which Uncle meant to sell to a developer (for some $3 million).

But the federal trial court ruled that as to one ground for Uncle’s motion to strike,  it appeared unmeritorious because the statute authorizing takings for such a purpose was not relied on in the complaint. Is that the end of the story? Not by a long shot. The court allowed as how Uncle Sam could file a motion for summary judgment which we assume will follow shortly.

Quoth His Honor:

“As the record actually stands, the United States relies solely on condemnation to support “continuing operations of the federal building.” In light of the easement already owned by the United States for exactly that purpose, the supposed rationale for condemnation would appear to be a sham – or so it is alleged – and at this stage, that defensive allegation will not be stricken.”

Still, when a federal court says “No” to the federal government in its capacity as condemnor, that’s noteworthy. Check it out.

California Choo-Choo (Cont’d.)

Not much happening on this subject, except we love the headline (and the rest of the article) from the Breitbart blog, so we share it with you here. The California railroad authority has started to acquire land for the right of way for the high speed “bullet train” that will run between Los Angeles and San Francisco, the Lord willin’, in 80 years if progress continues at the present rate.

So far, some parcels have been acquired for the right of way, but no eminent domain case results yet, so it’s hard to tell the “spread” between railroad offers and court awards. Stay tuned, and check out this:

http://www.breitbart.com/Breitbart-California/2014/11/10/Cal-High-Speed-Train-on-Track-to-Open-in-80-Years

We’re Back

We are back in the saddle having just returned from Williamsburg, Virginia, where William & Mary College Law School held it annual award ceremony and seminar for the Brigham-Kanner prize that is granted to people who have made an outstanding contribution to the subject of property right. And a good show it was.

As usual our colleague Robert Thomas has covered the event admirably. So rather than repeating what transpired again, we borrow his post at www.inversecondemnation.com below:

2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

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You can’t have rights without advocates.”

- Michael Berger

We’re at the William and Mary Law School in Williamsburg, Virginia today for the 11th Brigham-Kanner Property Rights Conference. As we’ve noted earlier, Michael Berger is this year’s B-K Prize honoree, for his career contributions to property law and his “scholarly work and accomplishments [which] affirm that property rights are fundamental to protecting individual and civil rights.”

The list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor (the latter perhaps more for where she ended up in her Supreme Court career than where she started). See the plaque on the Law School’s wall for the complete list of prizewinners. Quite a line up, no?

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This is the first time that the Prize has been awarded to an actual practicing lawyer, and the today’s panels are focusing on the role of the advocate in defining property rights. Mike started the day’s short career retrospective with the quote above.

 

 

Legal scholars have their place, of course. They spend their careers thinking, researching, and writing about the “why’s” and the “should be’s” of the law. But without lawyers to detail the “how’s,” and who advocate for actual clients, these lofty academic theories would remain just theories. It’s the practicing bar representing clients who decide what cases to present to the courts, who craft the arguments that the judges eventually adopt (or don’t), and who take the theories and translate them to the real world where they actually matter.

Legal scholars may pump up the tires, but it’s practicing lawyers who ride the bike.

 

 

Other prizewinners have a mix of practice and academics (such as Professors Thomas Merrill and Richard Epstein), but not nearly the full-time level of Mike Berger. Given that the B-K Prize is named after a practicing lawyer (Toby Brigham) and an advocate/academic (Gideon Kanner), presenting it to Mike Berger is particularly appropriate, since in addition to his practice, he has also created a body of scholarly work.

 

 

If you haven’t had a chance to attend the Brigham-Kanner Conference, you really should consider doing so in the future. It is, in our opinion, the best one-day-and-a-bit-more academic conference of its kind. The speakers, which include past prizewinners, other notable property law academica (David Callies [U. Hawaii], Orin Kerr [George Washington U.], Weixin Shen [Tsinghua University, Beijing], and Steve Eagle [George Mason] for example), and practitioners (Jim Burling [PLF], Dana Berliner [IJ], Janet Bush Handy [State of Maryland], and Joe Waldo [Waldo & Lyle, Norfolk, Virginia]), are really interesting and exciting for those of us who do this for a living. We’ve been appointed to serve on the B-K Conference’s Board of Advisors, and we’re already planning future events.

And the highlight of the Conference is the event at which the Prize is awarded, a candlelight dinner in the historic Wren Building, in the room in which John Marshall and Thomas Jefferson read law. Here’s Mike with the four past prizewinners in attendance at the dinner last night.

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Please also note that the Brigham-Kanner Property Rights Conference Journal is published as a record of the Conference (volume 3 is available here).

 

 

As a parting shot, I’ll re-share one of my favorite Mike Berger moments (which didn’t even involve him personally). At the tail end of a teleseminar on land use and regulatory takings a few years ago, the panel accepted questions from the audience. When one of the 50+ attendees asked a question about what the first step he and his clients should take having just lost a regulatory takings case in a trial court (the details of which escape me now), one panelist — a government lawyer — responded, “you mean after you call Mike Berger?”

Who among us hasn’t thought the same thing?

- See more at: http://www.inversecondemnation.com/#sthash.fnABsHel.dpuf

Another Startling Win for a California Land Owner

We are getting ready to take off for the Brigham-Kanner program on property rights at William & Mary College in Virginia, so this post will have to be brief. Go to the California Court of Appeal decision in Bowman v. California Coastal Comm’n, No. B243015 (Oct. 23, 2014), holding that the California Coastal Commission’s demand for an exaction was invalid because there was no nexus and no proportionality between the Commission’s demand for an easement, and the owner’s request for a permit to repair an old structure.

Anywhere else such a ruling would be routine, but in la-la land it’s a big deal.

“Man Bites Dog!” – Landlord Wins Lawsuits in San Francisco

If you have any interest in inverse condemnation, particularly in the landlord-tenant context, don’t miss the new U.S. District Court Decision in Levin v. San Francisco, No. 3:14-cv-03352-CRB, opinion filed on October 21, 2014. In it, the court struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional . It ruled that the ordinance requiring the owner of a duplex to pay the city some $118,000 in order to be permitted to evict a tenant in the second unit (the owner lived in the first one), before being able to go out of the rental business and using the second unit for his family, was unconstitutional.

The court held that this ordinance violated the constitutional rules of Nollan, Dolan and Koontz cases, concluding,

“San Francisco’s housing shortage and the high market rates that result are significant problems of public concern, and the City legislature’s attempts to ameliorate them are

laudable. “[B]ut there are outer limits to how this may be done. A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Dolan, 512 U.S. at 396 (quotations omitted).

The Constitution prohibits the City from taking the policy shortcut it has taken here, in which the City seeks to “forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Id. at 384 (quoting Armstrong v. United

States, 364 U.S. 40, 49 (1960)). The Ordinance apparently is unprecedented in requiring a massive lump-sum payout from one private party to another in exchange for regaining possession of property.  But that trail had not been blazed before for good reason. In so doing, the City has crossed the constitutional line between permissible government regulation of land and an impermissible monetary exaction that lacks an essential nexus and rough proportionality to an Ellis Act withdrawal.”