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 — Ohio

The Columbus Dispatch of August 20, 2014, brings the news that the Ohio Court of Appeals has awarded  $1.3 million for the taking of a 0.205 slice of land. The City of Westerville offered $145,855, but that did not factor in the city’s taking of the power to deny access, and impair visibility of the remainder property. Nonetheless the trial court awarded only $145,855. This award was reversed on appeal and the owners were awarded $1.3 million.

So here we have a reminder of the rule that when it comes to severance damages, it’s not what the condemnor means to do with the taken land, but rather what powers does it acquire. So if the condemnor takes the right to deny access, that’s what has to be valued; whether the condemnor actually exercises that power to the fullest or not.

For the full story go to http://www.thisweeknews.com/content/stories/westerville/news/2014/08/19/eminent-domain-case-appeals-court-upholds-award-for-1-3-million-award.html


California Choo-Choo (Cont’d.)

“. . . [T]he state has yet to start full-blown, sustained construction of permanent structures — including bridges, tracks and train stations — at least partly because it lacks most of Central Valley land needed for an initial 29-mile segment that will pass through Fresno. The state has acquired 71 of 526 parcels needed for the segment, about 13% of the total, according to figures provided by the California High-Speed Rail Authority.” Ralph Vartabedian, Lack of Land Slows Work on California Bullet Train Project, Los Angeles Times. Aug. 13, 2014.

This passage pretty much speaks for itself, it but it and the rest of the article may be misleading to lay readers unacquainted with the law and practices of eminent domain. It quotes the former chief executive of the project that “acquiring land for transportation typically involves property owners trying to squeeze the state for the highest possible value.” That is nonsense.

The idea that individual farmers in the Central Valley can “squeeze” the state is absurd on its face. Indeed, the history of eminent domain is a history of undercompensation  of landowners. That is why owners who refuse the state’s offers and litigate value — whether before judges or juries — usually make out better than the ones who accept the state’s offers.

As for that nonsense about farmers “squeezing” the state for the taken land’s highest value, the “highest price” is what California law sets as the measure of just compensation that has to be paid when land is taken by eminent domain. Don’t take our word for it. Check out California Civil Code that provides explicitly in section1263.320 (a) that just compensation is the highest  price that the subject property would fetch in a voluntary, private sale transaction between a willing but unpressured seller and a willing but unpressured buyer, both fully aware of the subject property’s good and bad features, including its highest and best use.

Why does the law say that? Because in a voluntary transaction the seller can take his sweet time in marketing the property until he finds a buyer willing to pay top dollar. An eminent domain action deprives him of that ability, so the law provides him with the “highest” price that he could have obtained in a voluntary transaction.

Moreover, the state has the power of taking the property before compensation is finally determined, so owners cannot “squeeze” the condemnor.


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.