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

Uncompensated Land Expropriation in South Africa

We don’t know how that one slipped by us. It could be because this momentous event received virtually no press coverage, but news sort of leaked out that in South Africa Parliament passed a “motion” 241 to 83, that land owned by whites may be expropriated without compensation. We learn this from one of our favorite publications, the City Journal, more specifically, an article by one of our favorite essayists who writes under the nom de plume of Theodore Dalrymple. On March 22, 2018, Mr. Dalrymple published an article in the City Journal, reporting this bit of racist legislation. See https://www.city-journal.org/html/dangerous-development-cape-town-15783.html . The article is entitled A Dangerous Development in Cape Town;. It appeared in the City Journal on March 22, 2018.

Mr. Dalrymple reminds us that similar legislation was enacted in the past in Zimbabwe, and it resulted in the collapse, first of that country’s agriculture, and eventually its entire economy. He also takes the press to task for failing to report this South African development, and rightly so. Whether you are for it or against it, this is big news and the failure of the press to report it exemplifies that institution’s decline and lapse into propaganda replacing news. Remember that to tell a falsehood it is not necessary to lie outright — it’s enough to omit news in whole or in part, to mislead the readers.

Monkey Business at the 9th Circuit

From time to time, we take note — usually favorably — of the doings of our fellow blogger Robert Thomas the keeper of the www.inversecondemnation.com blog. So we are pleased to do it again by joining in his criticism of the federal courts, particularly the 9th Circuit Court of Appeals for wasting its time with utter tomfoolery like deciding whether animals can own copyrights. Short answer: they can’t, but what they can do and have done is to devote their time and resources to this utterly frivolous inquiry. Here is Thomas’ post on this subject
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April 25, 2018

9th Cir: “Ape Shall Not Sue Ape!” Court Has Time For Silly Monkey Selfie Case, But Not For Takings

“Here’s the not unexpected decision from the U.S. Court of Appeals for the Ninth Circuit in a case we’ve been following (sort of). It should never have gotten this far, even as the “plaintiffs” raise the specter of a cert petition.

Here’s the not unexpected decision from the U.S. Court of Appeals for the 9th Circuit:

“We say again: the federal courts seem to have time for this brand of nonsense, but when it comes to land use and takings cases, they won’t be “super zoning boards of appeals,” and almost always refuse to give them the time of day. At least PETA didn’t make a takings claim and further hose up the law.

“Once again, Dr. Zaius could not be reached for comment.

“Rock on, Naruto.”

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To this, we should add our own inquiry: if animals can’t hold copyrights nor sue to protect their rights in them, then what about all those cases with nonsensical captions like Arizona Grey Squirrel v. Somebodyorother in which the same court, with what purports to be a straight face, discourses on environmental rights of plaintiff-squirrels and such? So can we now call those “squirrely opinions”?

Afterthought: For the now famous selfie portrait of the plaintiff-monkey, go to Mr. Roberts’ blog www.inversecondemnation.com and see today’s post. Enjoy!

If at First You Don’t Succeed, Fail, Fail Again

Don’t miss the LA Times story by Angel Jennings, L.A. County Wants to Take Blighted Property, April 23, 2018, at p. B1. It tells the story of a land owner who stands to win our “lucky Pierre” award for being the subject of not one, but two eminent domain actions seeking to take his large plot of land that has been sitting vacant since the 2005 riots, and which — according to its owner — was blighted by the city’s activities, so it became an invitation to homeless folks’ encampments, and generally not what comes to mind when you speak of an area to be redeveloped with a mall, entertainment facilities, a restaurant, etc.

Long story short, the owner actually broke ground 2005, for a project of his own. But nothing came of it. He blames the city for this result. Anyway, nothing came of the city’s intention to take and redevelop the place, because California, in a rare stroke of common sense abolished redevelopment, whereupon the condemnation had to be abandoned (and attorneys’ fees and damages totaling $5.2 million paid to the owner).

Now, starting in 2017, the county filed another condemnation action seeking to do what the city couldn’t, and wants to take the property for assorted public uses like stores, entertainment facilities and — are you ready? — a facility for NASA lectures. The owner is resisting the taking on a variety of grounds, and the fight is on. In the meantime the subject area is known to local cops as “death alley” because of its high homicide rate.

We can’t wait to see how it all turns out. Stay tuned. And do read that lengthy LA Times piece cited above.

Follow up: The blog la.streetsblog.org reports that the Los Angeles Superior Court (trial court) has ruled in favor of the County’s right to take. Sahra Suleiman, County Wins Control of Vermont/Manchester Lots in Superior Court Ruling, April 26, 2018. So the condemnation can now proceed to its next stage which is the determination by a jury of the “just compensation” payable to the owner. We can’t wait.

Other than these hard facts, the just cited post is a classic redevelopment puff piece that holds out the hope of the equivalent of urban sugar plum fairies. And a fine piece of PR BS it is. Among other things it says that the process of eminent domain is subject to “tight constraints” — no, we are not making it up — and in noting how the area was devastated by 1990s riots, it uses the term “unrest.” It doesn’t get any more politically correct than that.

Of course, as the proverb goes, there’s many a slip between the cup and the lip, so what will actually be built on this site, if anything, is yet to be seen. Stay tuned!

George Will Reviews New Movie About the Kelo Eminent Domain Case

We live in an era of the visual, with readership declining and people increasingly getting their information from a screen — mostly a little computer screen, even though big movie screens are still hanging in there. So we were glad to learn that a movie about the wretched Kelo case has been made and is now being distributed. The national columnist George Will has joined in with a column reviewing it (link at the end of this post).

Kelo v. New London was the Connecticut eminent domain case in which the city of New London took an entire lower middle class neighborhood in order to turn it over to a private developer on a long-term lease (for a dollar per year). That developer was supposed to redevelop it into a higher class area of shops, classy condos and a marina, all serving well paid professional employees of a nearby research facility of the Pfizer company, the pharmaceutical biggie. The case eventually wound up in the US Supreme Court which, by a 5 to 4 vote sided with the city, over sharp dissents by Justices O’Connor and Thomas.

However, the project turned out to be a total failure, and the supposedly thoroughly vetted city plans turned out to be so much hot air. After an unblighted 92-acre waterfront neighborhood was destroyed, displacing its unoffending inhabitants, nothing was built on the site. Pfizer, which was to be the beneficiary of the economic revival flowing from the project, exhausted the tax benefits it got from the city, and instead of adding jobs as promised, moved out of New London, lock, stock and barrel. The site of the redevelopment project is now a vacant, trash-strewn wasteland. This caper cost the city and state some $100 million with nothing to show for it, except a tidal wave of popular revulsion that swept the country. The envisioned tax gains turned into losses, thus illustrating the line of the late California Court of Appeal Justice, Macklin Fleming, who once observed that when it comes to redevelopment, the bigger economic pie the project promoters tout as coming to all, turns into pie in the sky.

The movie’s title, like that of the book on which it is based is The Little Pink House
The link to George Will’s review is:
https://www.sltrib.com/opinion/commentary/2018/04/19/george-f-will-case-of-eminent-domain-in-little-pink-house-speaks-truth-to-power/

For a review of this film by Variety, go to:
Film Review: ‘Little Pink House’

Lowball Watch — Pennsylvania

The York Daily Record of April 17, 2018, reports that a York jury awarded $1.25 million for the taking of the old York County Prison (now in private hands), when the York Redevelopment Agency took it by eminent domain. The commissioners (called “Viewers” in Pennsylvania) awarded $65,000, plus $4000 in attorneys fees. But when the case went to trial, the jury awarded $1.25 million, which was affirmed on appeal, as we reported on March 17, 2018. It took the jury only 30 minutes to reach its conclusion.

The redevelopment agency is seeking review by the Pennsylvania Supreme Court which — like most supreme courts — is not required to review the affirmance on the merits. In the meantime, interest on the award is running at the rate of $188 per day. Stay tuned.

Dylan Siegelbaum, As Interest Mounts, RDA Appeals $1.25M Award for Old York County Prison, April 17, 2018. See

https://www.ydr.com/story/news/local/2018/04/17/rda-appeals-eminent-domain-verdict-old-york-county-prison-pennsylvania-supreme-court/525653002/

The Public Housing Tragedy

We recommend to our readers that they take a look at a New York Times article Bleak Housing which is a book review of HIGH-RISERS, by Richard Rothstein, appearing in the New York Times Book Section of April 15, 2018, at p. 21. It’s the story of the construction, decline and eventual fall — figuratively and literally — of the Chicago Cabrini-Green public housing project, a massive 20-story apartment building that with time became such a hellhole that it had to be demolished.

We have only read the NY Times book review, but that strikes us as enough. There is ample material there to support the conclusion that the Cabrini-Green project was a cautionary tale of the tragedy that results when good intentions meet unintended side effects, and an illustration of why government projects fail so often. It brings to mind Brendan Behan’s cynical line that “I cannot conceive of a human condition so wretched that the appearance of a policeman couldn’t make worse.” Substitute the word “government functionaries” for “policeman” and you got it, although the police have a good excuse because they are called upon to make split second decisions under often dangerous circumstances, while the city housing functionaries can take their time and benefit from the views of expert advisers.

It seems that in the public housing disaster exemplified by the downfall of Cabrini-Green, for every new idea intended to improve things, there was a counter-idea suggesting a rejection of the first idea and the substitution for it of another one whose features undid all the good that the first idea was intended to bring about, and then some.

And of course, much of the public housing disaster was brought about by the unfortunate behavior of the intended beneficiaries of those public projects. That, however is another sad story that we can’t very well get into here without prolonging this post excessively.

But if you have an interest in American urban affairs, do read that book, or at least the Times’ book review of it. Sad but informative.