We wish our readers a happy, healthy and prosperous New Year, and lots of good luck which, alas, we are going to need.
And while we are relating good news from exotic places, we must also mention that a five-judge tribunal of the Southern African Development Community has ruled that the government of Zimbabwe may not seize the farms of white farmers who established them back when the country was still known as Rhodesia, and turn them over gratis to favored politicians.
While this is good news on principle, don’t pop the champagne corks on that one just yet. First, according to the New York Times, the SADC court ruled in favor of the land’s owners only because Zimbabwe awarded “the spoils of expropriation primarily to ruling party adherents.” So in darkest Africa, as they used to say, if you award the “spoils of expropriation” to your political cronies, that’s a no-no, but if you seize it for “the people,” it may be hunky-dory. Second, the Zimbabwe government responded to the court’s ruling by defiance – a government spokesman asserted that the SADC tribunal judges were daydreaming when they made their ruling.
So forgive us if we utter only one-and-a-half cheers for that one, even as we acknowledge that something by way of justice is better than nothing. You can get the full story on that one in Celia W. Dugger, White Zimbabwe Farmers Defy Mugabe in Legal Battle for Land, N.Y. Times, Dec. 28, 2008, at p. 1.
We are back from our Christmas break, and note that things have been happening while we were away.
The Hawaii Supreme Court outdid itself in County of Hawai’i v. C & J Coupe Family Limited Partnership, (Civ. No. 00-1-0181K, opinion filed December 24, 2008). In it the Court held that the mere fact that a proposed public use is of a kind that is normally usable by all – i.e., a road – does not in itself preclude an owner’s right to put on a defense that the attempted taking is pretextual, in that the proposed road is sought to be built, not to satisfy a public need, but to facilitate the desire of a local private developer. In this situation, held the court, the owner contesting the taking is entitled to a trial on the merits, which may not be denied to him because of the ostensibly public nature of the taking. You can read the entire lengthy majority opinion and the dissent on www.inversecondemnation.com
This is another step in the unfolding process of American courts beginning to take condemnees’ defenses to the right to take seriously, unlike the bad old days when the latter were given the back of the judicial hand and even in some cases the protesting property owners were chastized for demanding their constitutional rights, as the New York Court of Appeals did in the infamous City of Yonkers v. Morris case that we blogged about on September 15, 2008, as Justice Delayed Is Still Justice, or How the Bad Guys Got Their Just Deserts.
The Coupe case is thus similar to the recent District of Columbia Franco case, where the DC Court of Appeals reversed a trial court’s ruling rejecting an owner’s challenge to a municipal claim of public use, and remanded the matter for a trial on the merits. In other words, in cases of this kind the owner may face an uphill fight, given the state of the right-to-take law (exemplified by the recent Second Circuit case of Goldstein v. Pataki), but he is entitled to his day in court. In this imperfect world, one must be grateful for small favors. Besides, you never can tell; in some cases the owners may prevail on the merits, as in Brannen v. Bulloch County, 387 S.E.2d 395 (Ga.App. 1989), where the court held that the county exceeded its power in seeking to condemn privately owned land to reroute a road in order to avoid inconveniencing a lumber company that created a hazardous condition in an existing road.
We have an unshakable hunch that the Coupe case, along with the other recent state court cases that have limited condemnors’ right to take, is a harbinger of a new judicial attitude. We further offer the speculation that much of this is a reaction – or perhaps more accurately, judicial revulsion occurring in the wake of the outrageous facts of the notorious Kelo case, where the U.S. Supreme Court held that taking unoffending private homes and turning over their razed sites for a dollar a year to a municipally-favored redeveloper for construction of purely private uses, such as high-end condos and upscale shopping facilities, somehow met the constitutional limitation of “public use” — which the court conveniently redefined as “public purpose.”
And so, three cheers for the Hawaii Supreme Court, and our congratulations to Robert Thomas who represented the condemnees in the Coupe case, and who happens to be our fellow blogger who runs www.inversecondemnation.com
Follow-up: Along the line suggested in the penultimate paragraph of the preceding post, we commend to our readers’ attention the Pennsylvania Supreme Court’s opinion (filed in time for Christmas, on December 22, 2008) in a case with the mouth-filling caption of In re Condemnation by the Redevelopment Authority of Lawrence County, No. 1293 CD 2007, pointedly noting the states’ authority to reject Kelo’s endorsement of condemnation for “economic redevelopment,” and holding that the statutory phrase “economically undesirable land use” may not be used by redevelopment agencies as a basis for condemning land to make it more profitable in its redeveloped condition. In other words, “blight” means that there is something affirmatively wrong with the land, not that the condemnor and redeveloper can put it to a more profitable use.
Last January we took note of the depiction of the Kelo case by Jeffrey Toobin in his bestselling book THE NINE: Inside the Secret World of the Supreme Court (Doubleday 2007). It turned out that Toobin got a number of things wrong. For one thing, he asserted that Kelo drew relatively little public attention. But in fact, when the Supreme Court heard oral arguments the attendance was quite large; the line stretched across the court plaza all the way to the Library of Congress. Even parties involved in the case (which included your faithful servant who had co-authored an amicus curiae brief) had problems getting in. There were a couple of dozen amicus curiae briefs filed in the matter. It was quite noteworthy that the amici came from both sides of the political spectrum. Suzette Kelo’s supporters included such liberal organizations as the NAACP, the AARP, the Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference. The highly regarded urbanist Jane Jacobs also took Kelo’s side.
After the decision came down, it was the subject of widespread, sharp public criticism by the likes of Ralph Nader, DNC Chairman Howard Dean, Bill Clinton and the ultra-liberal Congresswoman Maxine Waters. But according to Toobin, the Kelo decision was cut-and-dried, and it was conservatives like Congressman Tom DeLay and Senator John Cornyn whose criticism inspired its critics. Toobin never let on that the vociferous criticism of the Kelo decision came from both political “wings,” as well as the vast majority of the press.
We took note of all this in our post of January 9, 2008 (Jeffrey Toobin, the Eminent Domain Maven, Speaks). Our blog was picked up by Professor Ilya Somin of George Mason Law School when he blogged about these events on the Volokh Conspiracy. He too was critical of Toobin’s misrepresentation of the Kelo decision and of the country’s reaction to it. We in turn, picked up Prof. Somin’s blog – you can find it on this blog (complete with reader comments) in our post Playing With the Big Boys, January 17, 2008. Check it out.
Prof. Somin’s observations inspired a lot of comments on the Volokh Conspiracy blog, and – lo and behold – thereupon Jeffrey Toobin was heard from. He sent an e-mail comment to Eugene Volokh, the boniface of the Volokh Consiracy. It read:
Now, the paperback edition of The Nine has come out, and guess what Toobin’s changes are? Whereas in the hardcover version, on p. 306, one sentence concluded “ . . . the case drew relatively little attention,” in the paperback he inserted the word “public” between “little” and “attention,” so the new sentence now reads “the case drew little public attention,” which is not what happened, judging from the mob of people trying to get into the oral arguments and the score or two of amicus curiae briefs. Also, after “explaining” how the Kelo opinion was no big deal and how the negative reaction to it was stirred up by conservatives, he added this sentence: “Even some liberals, who regarded the decision as a symptom of authoritarian government, denounced Steven’s opinion.”
Th-th-that’s all folks. No mention of the prominent liberal amici curiae and critics who supported Suzette Kelo, no mention of the overwhelming (and probably unprecedented) rate of public disapproval of the Kelo majority opinion, that ran around 90%, and no mention of the fact that the prestigious U.S. Court of Appeals for the Second Circuit, analyzed Kelo in Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008), and concluded that because New London did not justify the taking of Suzette Kelo’s land on the basis of either blight elimination or elimination of other adverse conditions, and forthrightly agued that it was pursuing economic redevelopment in order to increase its revenues, Kelo was indeed novel and unlike either Berman or Midkiff.
In short, the paperback edition of The Nine is substantively no different than the hardback version, and neither one conveys – certainly not to a lay readership – what actually happened in that case.
On November 13, 2008, we added to the unhappy story of the Los Angeles “Intercontinental” Airport in Palmdale (Update on the Palmdale Airport), that set the taxpayers back some $100 million in early 1970s dollars, with nothing to show for it even though eight or nine airlines unsuccessfully tried over the years to make a go of it. We reported that the Los Angeles Department of Airports finally gave up on that airport and turned over its operations to the City of Palmdale.
Now, the Los Angeles County Board of Supervisors has formally resolved to request an explanation from the City of Los Angeles, as to what it intends to do with the 17,000 acres acquired by it for that “Intercontinental” airport. The Board”s press release of December 16, 2008, quotes Los Angeles County Supervisor Michael D. Antonovich: “This vital property is not being utilized as the City of Los Angeles promised when it took private property through eminent domain. It is time to build the airport or return it to the original owners.” Another Supervisor, Don Knabe, added, “For four decades, this land has been sitting vacant, not being used for the development of a critically-needed regional commercial airport, which was the the intended use of this land.”
Return it to the original owners? Gasp! We can’t wait. So stay tuned. There is bound to be more on this story even though under California law a condemnor is not required to devote taken land for the purpose for which it was taken and may put it to other uses, no use at all, or may just sell it. See Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning — Sorry About That, Justice Stevens, 39 Urban Lawyer 529 (2007).
As an aside, we should mention that in the mid-1970s the California Law Revision Commission, acting as part of its major program of revision of the law of eminent domain, considered legislation that would require the return of condemned land to its [former] owners, unless it was actually put to the use for which it had been taken. But evidently, this idea was so sensible that it proved too much for the Commission which, after pondering needed revisions in eminent domain law for twenty years — count ‘em, twenty — decided not to recomend any legislation granting the former owner a right to regain the taken land. If you are into such stuff, read Nathaniel Sterling, Former Owner’s Right to Repurchase Land Taken for Public Use, 4 Pacific L. Jour. 65 (1973). Sterling served on the Law Revision Commisssion staff at the time.
We commend our fellow blogger, Robert H. Thomas of www.inversecondemnation.com for his post (The Dark Side of Zoning, December 14, 2008) on the background of Euclid v. Ambler, the first-impression U.S. Supreme Court case dealing with zoning. In it, a split Court voted 5 to 4, to reverse the trial court’s decision and to uphold zoning as constitutional. Thus, zoning is not, as is at times tacitly assumed, some sort of unchallegeable ancient doctrine, but a relatively recent notion endorsed by the U.S. Supreme Court in 1926, by a razor-thin, one-vote majority. You can read the Court’s opinion at 272 U.S. 356, but Thomas gets our attaboy for noting what does not appear in the opinion – that at first, the Court voted (also 5 to 4) to affirm the trial court and to hold zoning unconstitutional.
It was only after some suspicious departures from the Court’s usual procedures that the author of that opinion, Justice Sutherland, changed his vote, thus converting the dissent into a majority opinion. It appears that this judicial change of heart took place only after Justice Stone had a private chat with Sutherland and persuaded him to change sides. The consensus of the informed members of the land-use bar is that Stone stressed the need to uphold a regulatory regime that would protect the homes of the well to do from proximity to the hoi polloi. A significant clue may be found in Sutherland’s Euclid opinion. Although in that case, the landowner wanted to use his land for industrial purposes, whereas the Village of Euclid zoned it single-family residential, in the midst of his opinion Sutherland launched a vitriolic attack on – are you ready? – apartments which he depicted as corrupters of society and destroyers of good neighborhoods, even though this had nothing to do with the issue before the Court. Sure enough, after the Euclid opinion came down and gave its imprimatur to zoning, zoning promptly became the subject of abuse as a tool of socio-economic segregation, used to keep immigrants and minorities from desirable areas. We recommend the discussion of this phenomenon in Dennis J. Coyle’s book, Property Rights and the Constitution (1993) at p. 22 et seq.
But all that does not do justice to zoning’s forgotten man, U.S. District Judge David Westenhaver who presided over the trial of Euclid, and who after holding zoning unconstitutional, concluded his opinion with the observation that the true purpose of zoning was to provide social and economic segregation; see Ambler Realty v. Euclid, 297 F. 307, 316 (N.D. Ohio 1924). Unfortunately, zoning is so used at times until this day. Thus, in Dews v. City of Sunnyvale, 109 F.Supp.2d 526 (N.D. Tex. 2000) the court found the local zoning scheme to be an illegal, invidiously racially discriminatory device that – in the court’s blunt words – was the equivalent to a sign reading “niggers keep out.” (Ibid at 533).
Does all this mean that we are doctrinally opposed to zoning? Not necessarily, though traditional, horizontal Euclidian zoning leaves much to be desired. It is difficult to see how allowing, say, some two-family homes, or a few convenience stores and cafes in single-family residential areas would corrupt the order of things. It seems to us that the steep price in money and municipal corruption exacted by so many municipal zoning practices may not be worth the benefit. The city of Houston has no zoning but it basically looks no different than other, similar cities. That fact makes one wonder what is actually being accomplished by zoning. A number of knowledgeable, respected scholars have made cogent arguments for the abolition of zoning, at least in its present form. It is certainly a valid question, that should be the subject of a thoughtful public debate, whether zoning and the myriad intrusive land-use regulations associated with it, that transfer virtually unlimited power over private housing choices and lifestyles into the hands of the lowest form of political life, are the way to go.
One of the best modern commentaries on the law and realities of land-use to be found anywhere is the 1985 book The Zoning Game Revisited by Richard F. Babcock, the late dean of the nation’s land use bar and his associate, Charles L. Siemon, now a practicing attorney in Florida.
The book deals with several high-profile land-use controversies that pitted local NIMBYs against hapless land owners who attempted to build on their land. One of the stories told by Babcock and Siemon, is contained in a chapter entitled Sea Ranch, California: The Devil’s Due (pp. 235-254). It deals with the travails of Sea Ranch, probably the best, and certainly the most environmentally sensitive housing development in California, located on the Sonoma County coast (110 miles north of San Francisco).
To give you an idea what we mean by the most environmentally sensitive project, here is how Babcock and Siemon describe the developer’s approach. In addition to the usual planning that goes into a subdivision, it included a study of wind currents, the migration of whales, sea lions and abalone, and inventorying wildflowers, before tree specialists, geologists, architects and planners drew their plans. Babcock and Siemon describe the architecture as so-called “stove-pipe” or “mine shaft” modern – unobtrusive, earth colored buildings built far apart from each other, that blend into the landscape. You can see color photos of them in an article by Patricia Leigh Brown, entitled Utopia By the Sea, N.Y. Times, Dec. 14, 2008, at p. 1 (Travel section), hereafter cited as “the Brown article.” If this subject is of interest to you, we urge that you get that issue of the New York Times, and see those color photos for yourself.
But excellent or not, this is California, so as sure as God made little green apples, local NIMBYs opposed the project unless they could prevail on the developers to provide generous beach access. So the developers did – they dedicated 125 acres for a public park that would provide ample, half-mile frontage access to the beach. But, hey man, like we said, this is California, so naturally the NIMBYs declared that this generous gift wasn’t enough. They continued to oppose the Sea Ranch project, and after being turned down by the local Board of County Supervisors, they mounted an initiative election which they lost as well. So surely, you might think, that took care of things, right? Wrong. Enter the California Coastal Commission created in 1972 by initiative, and sold to the voters as a means of saving the California Coast – which sure sounded good. In fact, the Commission turned out to be the sort of outfit that tends to confuse the regulatory state police power with the power of a police state. For a vivid example, see Healing v. California Coastal Commission, 27 Cal.Rptr.2d 758 (1994), a rare court decision chastizing the Commission for its treatment of a property owner who only tried to build a home for his family, and characterizing his ordeal as a 17-year-long nightmare.
What ensued was a lengthy process of Commission harassment of the buyers of Sea Ranch lots, who tried to build comparatively modest individual homes, a feat that was possible in those days, before California coastal residential land became the province of movie stars and assorted petro-sheiks. Nothing doing, ruled the Commission, and imposed a moratorium that would remain in place for years, until all sorts of absurd conditions were complied with. Such as, for example, cutting down many pine trees that the developer had planted. This was demanded ostensibly to protect the view of the ocean by folks driving on nearby picturesque State Highway 1. The problem with that, as Babcock and Siemon point out, was first, that you couldn’t see the ocean from the road anyway, and second, considering the notoriously sinuous nature of the winding State 1 highway, taking one’s eyes off the road while driving that stretch was near certain to result in a crash. The Brown article describes it as a “stomach-churning, acrophobia-inducing sliver of highway.” The commission also demanded control over height, siting, and bulk of the houses that could be built, and its decisions were frequently arbitrary and capricious, such as the imposition of a requirement that each septic tank leach fields be made extra long, and be backed up by a redundant, second leach field, which required elimination of a number of building sites.
To get a feel for what went on there, you should read the Babcock and Siemon retelling of this sad story. To their everlasting shame, the state and federal courts in California failed to provide protection to the rights of the unfortunate Sea Ranch lot buyers. For a collection of citations to the reported court decisions, see endnote 1, at p. 292 of The Zoning Game Revisited. As Babcock and Siemon sum it up: “In California, the courts have elevated government arrogance to a fine art.” But eventually, the California legislature intervened and enacted a legislative compromise that provided token compensation to the lot owners and permitted construction, requiring “only” five access ways to the beach (in addition to the half-mile stretch of public beach in the park that the developers had already dedicated, and that for some strange reason didn’t count).
So why did the Commission act this way? One answer is provided by Babcock and Siemon when they quote one of the actors in that battle who opined that the Commission functionary in charge “was going to beat Sea Ranch because it was the best-designed project along the coast. If he could lick Sea Ranch, he could beat any proposal.”
So why rehash all that now? Because we just came across that New York Times article, whose author, Patricia Leigh Brown, waxes positively orgasmic in heaping praise on the aesthetics of Sea Ranch and praises its creators to the Heavens, dropping famous architects’ names like autumn leaves, and leaving no doubt that by the lights of the bien pensant architectural good-taste mavens, Sea Ranch is the ipsy-pipsiest cat’s pajamas of oceanfront homes. Says she, “Sea Ranch, a cluster of homes overlooking the Pacific, lifts the souls of design aficionados with its style forged by A-list architects and its deference to nature.” And this, in case you haven’t been attentive, is the very subdivision that was singled out by the Coastal Commission for especially harsh treatment, whose owners were harassed by the Commission, and whose construction was delayed for years because the Commission claimed that it was environmentally “bad.” So if you wonder why so many people despise government regulators, and why courts are sliding down on the scale of public respect, here is a proverbial “Exhibit A.”
Follow-Up. If you want an insight into how the California Coastal Commission’s excesses have been abetted by California courts that neither see, nor hear, nor speak evil when it comes to the Commission’s doings, see Michael M. Berger, You Can’t Win ‘Em All — Or Can You? Cal. State Bar Jour., Feb. 1979, at p. 16.
In his blog www.nationaleminentdomain.com Alan Ackerman of Detroit reminds us that a quarter of a century has gone by since the Michigan Supreme Court’s infamous Poletown decision in which a divided court approved the condemnation of an entire unoffending neighborhood — hundreds of homes, businesses, churches and a major hospital — in order to raze it to the ground and turn over the land to General Motors for the construction of a new Cadillac plant. Much has been written about that moral, economic and doctrinal disaster, so we won’t get into all that here. Suffice it to say that in 2004, the Michigan Supreme Court recognized the error of the Poletown decision, came to its senses and overruled it. See County of Wayne v. Hathcock, 684 N.W.2d 765 (2004). It was too late to bring justice to the displaced Poletwon residents, but nonetheless it was a blow in the cause of common sense and fairness in the law.
By a remarkable coincidence, this is also the time when General Motors has been appearaing before Congress, rattling a tin cup, and pleading for an umpteen billion dollar federal bailout. As of this writing, Congress has not yet spoken formally, but the straws in the wind, at least as reported by the press, suggest that Uncle Sam will probably pop for that bailout, to the tune of a score or two billion dollars, and keep the once Big Three automobile makers going, at least for a while.
The pitch of the automakers is that their cars aren’t selling and they are in dire straits, facing huge layoffs and imminent bankruptcy if Unce Sam doesn’t pony up. It’s a sad spectacle, but one can’t help to note that it may also be a case of divine retribution. For in 1981, GM performed another song and dance, asserting that it had to have a new Cadillac plant, and if Detroit didn’t come across with a suitable site for it, GM would pick up its marbles and build the new Cadillac plant somewhere else, in Ohio perhaps, so Detroit (then racked by high unemployment) responded to that crude application of pressure, and did GM’s bidding.
Now, 25 years later, it turns out that in the long run it was for naught. GM had originally forecast a new facility with 6000 jobs, but it never came close to that number. New plant and all, GM has lost a fortune in recent years, and is at the end of its rope. It turns out that all that injustice inflicted en masse on the inhabitants of Poletown, and all the intellectually dishonest distortion of legal doctrine, on which the Poletown case was based, accomplished nothing — either for GM or for Detroit which has been continuously declining, with its population leaving the city in droves.
There is a moral in this tale and we have every confidence in our readers’ ability to discern it. Think of the Fifth Amendment and Eighth Commandment, and reflect on what a bad idea it is to violate them.
A while ago, we posted an item containing a purported 1776 quotation by Alexander Fraser Tytler who, supposedly writing in the context of the decline of the Athenian democracy, painted a menacing scenario of decline of democracies, that takes place over a period of 200 years, once the population discovers that it can vote for itself largesse from the government treasury and elects its representatives accordingly. Sound familiar?
It turns out (according to Snopes.com) that Tytler didn’t say it. But perhaps he, or someone, should have. Go check out the entire quote. It’s in our post of September 23, 2008, entitled Are Our 200 Years Up?
Maybe we should stick to our last and talk about eminent domain instead of history.
After our recent (November 16, 2008) blog on how the TVA made a killing on its hydroelectric dams while the Supreme Court worried about a nonexistent “conflict” between the cost of idemnifying condemnees and the people’s right in public projects, we added the following update:
“While perusing the November 30, 2008, issue of New York Times Magazine, we came across a slick, full-page ad by Shell (inside the back cover), bragging about “tackling climate change and providing fuel for growing population.” It specifically mentions coal gassification, gas liquefaction, wind power, hydrogen fuels, fuel from algae, fuel from straw, and fuel from wood chips. But no mention of hydroelectric power. Odd, don’t you think? Why wind power, but not hydroelectric power?”
Please be assured, dear readers, that we are not into conspiracy theories, but this omission of clean sustainable hydroelectric power as an energy source is getting positively weird. Today’s New York Times editorial (Hawaii’s Moon Shot, Dec. 2, 1008, at p. A28) sings the praises of an outfit called the Blue Planet Foundation, and its plans to transform Hawaii’s total dependence on imported oil, into a “green,” sustainable power regime. Says the Times: “. . . [Hawaii] has an abundance of clean-energy sources: sunshine, wind, powerful tides and waves and cold water depths.” So far, so good. These are the usual suspects, but something is missing: hydroelectric power. Hawaii also has lots of steep mountains, and abundant rainfall, so it shouldn’t be too much of an engineerung feat to build some hydroelectric dams to harness the energy of all that water that now flows down those mountains and into the sea. Moreover, as far as we know — and do feel free to correct us if we’re wrong — there are no salmon swimming up Hawaiian streams up those steep mountains, that might be inconvenienced by dams. So why exclude hydroelectric power from the Times’ shopping list for the greening of Hawaii’s energy supplies and decreasing its dependence on shipped-in foreign oil?
It’s, like, weird, man. Positively weird. Anybody have any ideas as to what is going one here?
UPDATE: OK, so maybe we’re wrong. Maybe it’s time to reconsider our rejection of conspiracy theories. Dwight Merriam is a distinguished Connecticut land use lawyer, and he runs a blog called International Municipal Lawyers Association – Local Government blog. And in his post of Noveember 14, 2008, with the catchy title of Wind Power Whack-a-Mole™ Wrangling, Merriam says:
“With wind power capable of producing electricity at rates quite comparable with fossil fuel and nuclear, but maybe not hydro, and federal and state economic incentives, the growth has been substantial. Last year, production grew 45% and over 1% of our power now comes from the wind. By way of comparison, nuclear provides 20%.” (emphasis added).
So why not hydro, Dwight? And here we thought that hydroelectric power is clean, cheap and inexhaustible, which is to say sustainable, to use the correct enviro-talk phrasing. Or, perhaps Merriam meant to say that hydro is cheaper than wind etc. But that only fortifies our point. Why not use it if it’s clean, green and cheap?