28th Annual ALI-ABA Eminent Domain CLE Program Coming Up

          Mark your calendars!  The 28th annual ALI-ABA CLE program on Eminent Domain and Land Valuation is coming up on February 17-19, 2011, at the Hyatt Regency Hotel in Coral Gables, Florida. This has been historically a very good program that is well regarded among eminent domain practitioners. This time, the program will have some 40 speakers – lawyers as well as appraisers and other professionals involved in real estate management and valuation.

          The speakers will come from both the condemnor and condemnee sides of these controversies and should provide an insight into the thinking of both.

          Topics will include both substantive legal matters, as well as matters of practice, trial strategies and other pointers for practitioners.

          Concurrently with this program, ALI-ABA will also put on Condemnation 101: Making the Complex Simple in Eminent Domain. This is an introductory program intended to educate practitioners who are new to the subject and who want to sharpen their professional skills. This program will focus on the basics of appraising, evidence presentation, persuasion of judges and juries, and examination and cross-examination of expert witnesses.

          For further detailed information, and for a copy of the ALI-ABA brochure, contact ALI-ABA, 4025 Chestnut Street, Philadelphia, PA 19104-3099, telephone (800) CLE-NEWS.

Two Good New Articles

We don’t often feature law review articles in this blog, but some deserve mention, and here are two well worth reading.

First, there is William W. Wade, Penn Central’s Ad Hocery Yields Inconsistent Takings Decisions, 42 Urban Lawyer 549 (Summer 2010). Wade is not a lawyer – he holds a Ph.D. in economics, and has been active as an expert witness in various regulatory inverse condemnation cases, so his understanding of these matters is both scholarly and pragmatic, as well as legal and economic. He won our heart and mind a while back when he wrote another article about Penn Central (Penn Central’s Economic Failings Confounded Taking Jurisprudence, 31 Urban Lawyer 277 (1999)) in which he aptly characterized the Penn Central decision by the New York Court of Appeals as “economic lunacy.” So as they say in New York, what’s not to like? We recommend that you read it and draw your own conclusion.

Full disclosure: Your faithful servant has also criticized Penn Central and has performed a full legal autopsy on that decision. Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Journal 653 (2005). It demonstrated that Penn Central was a doctrinal and intellectual mess, to put it politely. What else can you say about a precedent which the U.S. Supreme Court deems to be the “polestar” of its taking jurisprudence, but in which it confesses its own inability to state the elements of a regulatory inverse condemnation cause of action? We could go on and on, but we won’t. Suffice it to say that the wretched Penn Central litigation produced three – count ‘em, three – appellate opinions, but none of them had anything whatever to do with the subjects discussed in the other two. You don’t believe us? Then do read our Penn Central article. Finally, in spite of New York City’s nominal victory in the courts, guess who wound up paying for the maintenance and restoration of Grand Central Terminal? That’s right, folks — New Yortk City. Which is what Penn Central contended should have been the case from the beginning of that litigation. And so it goes. 

The second current Urban Lawyer article that’s worthy of note is Robert H. Thomas, Recent Developments in Challenging the Right to Take in Eminent Domain, 42 Urban Lawyer 693 (Summer 2010). The title says it all. It’s a good read that will keep you up on what is going on.

 Thomas runs the www.inversecondemnation.com blog, and a classy operation it is. We recommend frequent visits to it.

2011 Brigham-Kanner Award to Go to Justice Sandra Day O’Connor in a Beijing Ceremony

William & Mary College School of Law will hold this year’s ceremony for the Brigham-Kanner award in Beijing, with the co-sponsorship of  Tsinghua University. This year’s recipient of the award will be retired U.S. Supreme Court Justice Sandra Day O’Connor who gave us that lovely dissent in Kelo v. City of New London.

The Brigham-Kanner prize was established in 2004. It is awarded annually by William & Mary College School of Law to a person who has made outstanding lifetime contributions to the subject of property rights. It is named after Toby Prince Brigham, a distinguished, second-generation Florida eminent domain lawyer, and Gideon Kanner, your faithful servant and the boniface of this blog, who is professor of law emeritus at the Loyola Law School in Los Angeles, and is of counsel to Manatt, Phelps & Phillips in Los Angeles. He has spent over 40 years practicing, teaching, and commenting on the law and practice of eminent domain. He holds the ALI-ABA Harrison Tweed Award for outstanding merit in continuing legal education, and the Shattuck Prize awarded by the American Institute of Real Estate Appraisers (now the Appraisal Institute) for outstanding contribution to appraisal literature, in the form of his 1973 Notre Dame Law Review article entitled Condemnation Blight: Just How Just Is Just Compensation?

Earlier recipients of the Brigham-Kanner prize have been professors Frank I. Michelman (Harvard), Richard A. Epstein (University of Chicago), James W. Ely, Jr. (Vanderbilt), Margaret Jane Radin (University of Michigan), Robert C. Ellickson (Yale), Richard E. Pipes (Harvard), and Carol M. Rose (University of Arizona). One of these days, the Lord willin’ and if the creeks don’t rise, the B-K prize may go to a practicing eminent domain lawyer, one of those unsung trench-troopers of the profession, who on a daily basis fight the good fight to defend and protect your property rights against government overreaching.

We plan to be there, naturally, to take in the festivities and the atmosphere, and to partake of some really world-class Chinese food. Hope you join us.

Cabrini-Green Housing Project in Chicago Meets Its End

          From time to time, we note in this blog the never-ceasing failures of redevelopment projects – some little, and some big. Now, there is a biggie on the radar screen. USA Today reports that the last few residents of the notorious Cabrini-Green urban redevelopment project in Chicago are being evicted so that this big, high-rise housing project, built starting in 1942 as a projected solution to urban housing problems, can be demolished and its site redeveloped. See Karen Hawkins, Chicago Closes Cabrini-Green Project, USA Today, December 2, 2010, at p. 2A.

 Cabrini-Green is an outstanding example of how much-touted, well-intentioned government programs can make things worse. The short version is that when C-G first opened, it was racially integrated, with many inhabitants being of the working and lower middle classes. But then the feds came up with a brain storm that limited public housing tenants’ rent to 25% of their income. Which meant that as the tenants prospered and their incomes increased, 25% of those incomes could now rent better housing elsewhere, so they started moving out, leaving behind only the poorest and most government-dependent folks as the C-G inhabitants. The predictable happened: limited to poor inhabitants who could not leave, C-G became a dreary human warehouse that by degrees was overwhelmed by crime and despair. The Chicago Tribune reported that by 1991 there were 4.3 violent crimes committed each month for every 100 inhabitants. The next year that figure went up to 5.5 – a 28% increase.

Long story short, like the notorious Pruitt-Igoe public housing project in St. Louis, that had to be demolished, C-G has now met the same fate.

It might be interesting for some diligent researcher to dig through the public statements of Chicago politicians, uttered around 1942, and see all the glowing prognostications of the urban nirvana that was about to be achieved through the construction of C-G. But we haven’t seen such a study. Nor have we seen a financial reckoning – a toting up of the cost of that caper, that had to be incurred by the taxpayers, only to come to this dead end. We aren’t holding our breath, and we suggest that you don’t either.

Redevelopment. Ain’t it grand?

The Kelo Backlash Has Legs

We thank the Castle Coalition folks for calling to our attention the fact that the intensity of public opposition to the U.S. Supreme Court’s 2005  5 to 4 decision in Kelo v. City of New London continues unabated. A recent public opinion survey indicates that 80% of those polled disapprove of the court’s decision that in spite of the “public use” limitation on the use of eminent domain, found in the Fifth Amendment to the U.S. Constitution, the power of eminent domain may be used to take unoffending private property from its rightful owners and turn it over gratis to other private individuals or entities for their private economic gain. The Court accepted uncritically New London’s assertions that the creation of new, upscale condos and commercial enterprises on the land formerly occupied by the displaced lower middle-class folks whose homes were taken, would increase tax revenues, which, said the court, would be a “public benefit” which in turn the court deemed synonymous with the constitutionally required “public use.” At least that was the theory.

When the opinion came down, the vast majority of Americans — cutting across the political-ideological spectrum — reacted with anger, with some 90% of the people strongly disapproving of the Court’s handiwork. We were kind of skeptical about how long that would last because public anger over court decisions tends to dissipate with time. But evidently, not this time.

The report was prepared by a group of professors from Harvard and Columbia Universities and can be found on line at http://www.law.columbia.edu/null?&exclusive=filemgr.download&file_id=55737&rtcontentdisposition=filename%3DPersily 

For commentary on the report and its significance go to the post of Professor Ilya Somin of George Mason University who has been following and writing about the topic of the “Kelo backlash” for a while. Go to http://volokh.com/2010/11/23/new-survey-data-on-public-attitudes-towards-kelo-and-economic-development-takings/

Though we hope that most of our readers already know this, it bears mention that in spite of the Supreme Court’s twaddle about the high quality of New London’s [re]development plans, the New London project proved to be a total failure that consumed upwards of $80 million of the taxpayers’ funds with nothing, absolutely nothing, to show for it.

Back in the Saddle

We have been away for a while, attending the annual program on Planning, Zoning and Eminent Domain in Texas, and we are back at it, getting ready for the next program which will be the Seminar Group’s 5th Hawaii Land Use Law program, scheduled to take place on January 14-14, 2011, at the Ala Moana Hotel in Honolulu. For a copy of the brochure and the program, contact The Seminar Group, P O Box 523, Vashon, WA 98070, (800) 574-4852.

Historically, that has been a pretty good program, and you can’t beat the venue.

Aloha, y’all.