Gideon's Trumpet

The L.A. Times of May 19, 2013, at p. A8 has a piece (Palestinians Fend For Themselves) that, amidst the Times’ usual lamentations over the [self-inflicted] plight of Palestinians, focuses on land-use issues in the so-called Area C of the West Bank. That’s land which the Israelis duly turned over to the Palestinian Authority following the Oslo Accords, but which they were forced to re-occupy after the Palestinians, instead of making peace as required by those accords, chose to use it as a base from which to wage war on Israel by means of what is often referred to as the “second intifada” — i.e., a violent attack on Israeli civilians. Tempted though we may be, we won’t go through the whole historical megillah, except to note the verity that people who launch a violent attack on others have no legitimate complaint when their targets turn around and take measures to defend themselves and to put down the attack, which is what ”intifada” means.

We must note, however, as does the Times, that under the Oslo Accords “some of the infrastructure and social programs for Area C were supposed to be provided by the Palestinian Authority.” But it wasn’t. So why bitch at the Israelis?

Anyway, the nub of the current L.A. Times lamentation is that the wicked Israelis have been ordering  demolition of some Arab homes. Why would they do that? Well, if you have the patience to wade through the entire article (which is almost a broadsheet page long) you learn that the homes in question were built without construction permits, which makes them illegal — just as they would be here. So why don’t these folks get permits? Because, they say, it’s difficult. Well yeah. As a Californian, we can dig that because we know how land-use bureaucracies can operate. But since the L.A. Times is a California newspaper we wonder how it can muster the chutzpa to give such prominent voice to this complaint, being as getting a building permit here in California is no picnic and it can take decades. Yes, decades. Not years but decades. Just you try to emulate those Arabs right here in la-la land, and build hundreds of homes without permits and see what happens — particularly if you try doing that in the Coastal Zone.

You don’t believe us? Then check out the case of Bonnie Agins who had to suffer for 30 years of applications and litigation (including a trip to the U.S. Supreme Court) before she was permitted to build three properly zoned homes on her 5-acre parcel. Then there was poor Ken Healing whose plight was characterized by the California Court of Appeal (27 Cal.Rptr.2d 758) as a 17-year long nightmare that was inflicted on him when he tried to build a single family home for his wife and kids. And let’s not forget the Landgate case where the California Supreme Court — speaking with a presumably straight face — opined that eight years of litigation (in addition to years of administrative proceedings) was merely a “normal delay” for which the owner was not entitled to compensation, even though he demonstrated to the court’s satisfaction that the state, that had inflicted this nightmare on him was wrong and didn’t even have jurisdiction over the area. And in the Del Monte Dunes case, the city required the hapless developer to go through five applications and 19 plot plans, but in the end refused the permission to build anything at all. So where do these California folks get the chutzpa to complain about delays in Israeli land-use permitting process?

We could go on like this, but to get to the bottom line, the Times article eventually concedes that in the past decade the Israelis have approved 328 Arab infrastructure projects in the area, “including seven electrical facilities, four medical clinics, and six school renovations — for a population of 90,000. Maybe they could have been more generous, but maybe not. The Times provides no factual basis for either eventuality. Apart from assertions by self-interested Arab parties, the Times provides no evidence for any conclusion that this was done for improper reasons. What it provides is unverifiable, accusatory assertions by various self-interested Arabs, some of whom have lost their cases in court, or by leftist propaganda outfits. Moreover, the Times provides no explanation of why the Palestinian Authority that was concededly supposed to provide this infrastructure, didn’t make any effort to do so.

You may recall the failure of the infamous New London, Connecticut, redevelopment project that gave us the awful 5 to 4 decision of the Supreme Court in Kelo v. New London. An entire unoffending, unblighted lower middle class neighborhood was seized  by eminent domain and razed to the ground by the New London redevelopment agency in order to build — or so the city plans asserted — a five star hotel, upscale shopping, pricy condos etc. to serve — according to the city — the well-paid employees of the Pfizer pharmaceutical corporation that had built a $300 million research center nearby, and thereby  to boost local taxes. But as you surely know, being a reader of this blog, the redevelopment project turned out to be an unmitigated failure in spite of the fact that the city’s plans called for a freebie to the redeveloper (turning over that land to him for 99 years for $1 per year). The cracks in the city’s project appeared when the selected redeveloper was unable to secure financing and had to default on his contract with the city. It went downhill from there. The city wound up with a vacant 92-acre waterfront parcel that it could not use but which ceased to generate taxes, and that no one would touch, even though the city took it by eminent domain in 2000, and the Supreme Court approved the taking in 2005 — that’s thirteen and eight years earlier, respectively. This caper cost the public somewhere north of $80 million; probably more like $120,000,000, with nothing to show for it. So much for boosting the community economy by the use of urban redevelopment.

And Pfizer for whose upscale employees’ benefit this caper had been undertaken, said “no thanks” and moved out of New London lock, stock and test tube, just as soon as the local tax breaks to it expired, taking some 1400 jobs with it.

Insult was added to injury, when that 90-acre waterfront parcel became a weed-overgrown wasteland, of interest only to birds and feral cats,  and was eventually used by the city as a dump in which to dispose of debris from a hurricane.

But in time, along came another redeveloper who was going to build — not the planned fancy-shmancy five-star hotel cum upscale shops and condos that the city sold to gullible judges as intrinsic parts of its “plan,” but plain ol’ housing that was first presented as 101 condos. But alas, those didn’t fly either (would you buy a condo in down-at-the-heels New London?). After the planned condos flopped, the new, new plans called for some rental units, except that didn’t work out either because history has repeated itself, and it turns out that the present redeveloper has not been able to secure financing either. So we are told by The Day, the local newspaper that has faithfully kept track of this caper all along.

“The first new construction in Fort Trumbull since the area became the focus of a national fight over  eminent domain was delayed Thursday after developers were apparently were unable to demonstrate how they were going to finance the $24 million Village on Thames project.”

“The Renaissance City Development Association said Monday’s groundbreaking ceremony for 34 units of  rental housing is postponed. A closing to transfer the property to developer Riverbank Construction did not take place Thursday as planned . . .” Kathleen Edgecomb, City Says Fort Trumbull Development Delayed, The Day, May 17, 2013.

What now? We have no idea. Maybe the city can get Justice Stevens whose majority opinion lauded the city’s plans, to invest in this land. You don’t think so? Neither do we.

The moral of it all is that where the players have no skin in the game, and judges, instead of keeping an eye on their doings, profess to be mere powerless automatons who have to accept the decisions of condemnor-redevelopers as long as they can be said merely to be “reasonably related to the conceivable,” which means that they have to uncritically buy the municipal BS about the wonders the proposed redevelopment scheme is about to perform, and do not hold anybody responsible for losses they inflict on the public fisc, that’s what you get.

We are once again  reminded of the line of Justice Macklin Fleming, of the California Court of Appeal who once observed in a redevelopment opinion (Regus v. City of Baldwin Park) that promoters of redevelopment projects like to argue that their favorite project will bake a bigger economic pie, with bigger shares for all, but in reality, what they often produce is pie in the sky. Here, in case you need a real life example of his wisdom, is the proverbial Exhibit A.

Edited May 18th, 2013, at 12:30 am

Follow up. For additional coverage of this latest debacle in the never-ending New London eminent domain fiasco, check out John K. Ross, Eminent Domain for No One’s Gain: New London Groundbreaking Ceremony Postponed, on the Reason.com blog — click here .

We make no claim to being a housing maven, but having been in the eminent domain biz for the past four decades or so, one can’t help but pick up — shall we say? — a certain sensitivity to real estate stuff (which surely includes housing  prices). So we are gratified to see that our recent musings about the increases in housing prices having begun to flirt with a new bubble, are now being confirmed by people with a better claim to mavenhood, like Fortune magazine and CNN.Money for instance. See Nim-Hai Tseng, Signs of New Housing Bubble in Several Areas, May 17, 2013, http://finance.fortune.cnn.com/2013/05/17/housing-bubble/?iid=Lead – for the article, click here. Our gratification has to do with seeing a confirmation of our thinking, not an unreasonable rise in housing prices which is bad, bad, bad.

Of course, now we have unprecedentedly low interest rates, and a pent up demand generated by the sharp decline in housing construction brought about by the 2008 Great Recession. But however true these things may be, there is a limit to how much ordinary people can spend on housing, and those who flirt with that limit are asking for trouble.

Austin Business Journal (bizj.com) of May 10, 2012, reports (wsuit.html) that the Homeric battle between Harry Whittington and the City of Austin is just about over, having gone on for a decade. The report is that after originally offering Whittington a paltry $3,500,000, the city has now decided to up it to $14,100,000.  The Journal report is sketchy to put it with restaint, and we are still on the road, so details will have to wait. But we can tell you that Whittington was resisting the taking, successfully in the Texas Court of Appeals, only to see his victory (on grounds of lack of necessity) reversed by the Texas Supreme Court.

Whittington gained national notoriety when he was accidently shot by then Vice President Dick Cheney in a hunting accident. But evidently, it takes more than a shotgun to keep a determined Texan down

We are on the road at the moment, without access to our usual resources, but we hear that the California Court of Appeal just affirmed a trial court judgment finding that a county’s regulatory conduct amounted to a temporary regulatory taking, awarding substantial damages and attorneys fees — a total award just short of a million dollars. Lockaway v. County of Alameda, May 9, 2013, First Appellate District (San Francisco).

To get further details and the text of the opinion, go to our usual source of good stuff, the blog of our colleague Robert Thomas; www.inversecondemnation.com

PBS.org has been running a video of Peter Sagal’s commentary on the Constitution. One segment is devoted to the  Kelo case. To see that video,  go to the Volokh Conspirace and check out one of the posts by Peter Sagal on the Constitution, particularly the segment on the Kelo case.

Nothing startling about that video. PBS is hardly the sort of outfit likely to wax indignant over abuse of individual property rights, and unsurprisingly, its criticism of the Kelo caper is rather mild. It’s a sort of surprized “Gosh! Can they do that?” sort of thing. But it is criticism, and coming as it does from the generally left of center PBS folks, it’s worth noting. What is informative is its showing of  the site: both as depicted in the city’s phony plans — the plans over which the U.S. Supreme Court majority waxed ecstatic, and the reality — the actual reality if you’ll pardon the redundancy – depicting the empty acreage where the homes of Susette Kelo and her neighbors once stood and which is now empty land, overgrown with weeds, doing no one any good after consuming something like $100,000,000 in public funds.

CourierPostonline.com reports that the New Jersey Supreme Court has declined to hear an appeal of the local Diocese, regarding a taking by eminent domain of a part of its Bellmawr cemetery for highway improvements. What appears to have been in issue was the right to take, not valuation — at least not yet. See Jim Walsh, High Court Refuses Bellmawr Cemetery Hearing, Courier Post, May 2, 2023.

The New Jersey State DOT seeks to take a part of the cemetery, and as of 2007, has offered $1.9 million. The church seeks $19.4 million if the taking  is going to proceed, as it now is. So this controversy bids fair to set up at least the potential for one hell of a lowball. We are unable to  gain a realistic insight into this controversy and of the valuation factors that divide the parties because the Courier Post article is a bit terse and confusing: for one thing, it says that DOT does not intend to move any graves, but it also says that part of the compensation sought by the Diocese is for grave moving. Possibly, this grave-moving may be necessitated by the taking of a still-unused part of the cemetery that is not actually occupied by graves, and that may impact on the unused part, but that is not clear. Either way, it appears that the State and the diocese see determination of severance damages very differently. So keep your eyes on this one — if it goes to trial, it should be fun to watch.

The taking of cemeteries can be contentious and controversial because of the emotional factors involved. In the past few years, there was a major controversy in Illinois over the taking of a cemetery for the expansion of the Chicago airport. The owners challenged the taking on necessity grounds, but lost.  The Illinois Appellate Court disclaimed any ability to pass judgement on the technical matters underlying the decision on how and where to lay out the new airport. Chicago v. St. John’s United Church of Christ,  935 N.E.2d 1158 (Ill.App. 2010). But with all due respect to their Illinois Lordships, that was piffle: courts pass judgement on such technical matters all the time in connection with challenges to projects whose construction is opposed on environmental grounds. And of course, passing judgment on the soundness and care with which all sorts of techical decisions are made, is mother’s milk in tort cases where someone has been injured and claims that it happened because some machine, device, structure, construction etc. was negligently designed, constructed and/or operated. Courts seem to have no problems with those technical matters either.

The only case of that kind known to us, where the cemetery owner prevailed on the right to take, was the old California case of Eden Memorial Park v. Superior Court, decided in the 1960s, but that was a short-lived victory. After losing in state court on statutory grounds (under a statute forbidding the taking of cemeteries for highways), the State DOT went whining to the feds who obliged and condemned the subject parcel in federal court under federal law, and then conveyed it to DOT. The owners then challenged the state’s ability to take title, being as that would indirectly violate that statute and result in the acquisition by the State of cemetery land for a use forbidden by statute, but the California Supreme Court disagreed and allowed the transfer of that land by deed from the feds to the State.

We wrote about the problem of cemetery takings before, and if you want to see it discussed in slightly more detail, click on www.gideonstrumpet.info/?p=393.

Follow up. For additional information on this case go to the New Jersey Einent Domain Blog http://njcondemnationlaw.com/

The Nashville Post (Bizjournal.com) reports that the Tennessee Court of Appeal affirmed a trial court judgment awarding $30.4 million to Tower Investments for the taking of the Nashville Music Center, on the condemnor’s (Metropolitan Development & Housing Agency’s) evidence of value of $14.7 million, paid six tears ago. The condemnor had offered $14.8 million at trial. Eric Snyder, Court Upholds $30M Tab for Music City Center Land Purchase, Nashville Post, May, 2, 2013. Presumably, interest will be added to the amount representing the difference between the $14.7 payment and the $30.4 million award.

There was evidently an earlier trial in which a jury awarded $16.1 million, but that judgment was reversed by the Tennessee Court of Appeals.

The bizjournal.com report is rather sketchy and does not report what factual or legal issues caused the large disparity between the parties’ respective opinions of value.

The California proposed “bullet train” project is slowly but surely transforming itself into something reminiscent of the “Keystone Kops” farce. The Los Angeles Times reports a whole new batch of problems. Ralph Vartabedian and Dan Weikel California Bullet Train Groundbreaking Faces New Obstacles, April 29, 2013. Click here.

What’s wrong this time? Take look:

 ”[L]ast week, Burlington Northern Santa Fe Railway Co., which operates a freight line that follows some of the 130-mile initial route in the Central Valley, warned in a blunt letter that no deal has been reached to build on or near its existing track. The company also signaled that it may not be willing to accept the project as proposed, in part because the exact route of the line is still unclear.

BNSF had been seen as one of the more accommodating organizations to the project. But the letter, addressed to the rail authority’s main consultant, Parsons Brinckerhoff, and copied to the rail authority, asserts that the rail agency’s planning process has “a great deal of ambiguity and contradictions.” The agency is sending mixed messages to different government agencies about what the construction entails, and it’s not clear who has the authority to speak and negotiate for the state, the railroad claimed.”

*    *     *

“[T]he issues in the letter parallel those raised by Rep. Jeff Denham (R-Atwater), chairman of the House rail subcommittee, who said he will conduct a hearing on the project May 28.

“We want to know what routes they are choosing and the timeline on the project,” he said.

Seems to us like this is one hell of a time to start deciding what routes will be followed. But hey man, it’s the government in action.

And oh, yes. The L.A. Times article includes a color picture of our Governor boarding a bullet train. In Beijing. Further your affiant sayeth naught.

A few days ago, we noted developments in California housing market that may suggest a revival of the “bubble” or at least the early stages thereof. Click here.  Today we get a significant follow-up story.

The Los Angeles Times reports that loans are again being made to home buyers whose credit ratings – how shall we put it? –  are less than stellar. E. Scott Recard, Lenders Venturing Back Into the Subprime Market, L.A. Times, April 27, 2013, Business Section.

The sort of loan described by the Times as representative of this market segment  requires 35% down and interest on the mortgage at 10.9%. A far cry from the “bubble days” but the point of the Times article appears to be that would-be homebuyers with low credit ratings are again able to obtain home purchase loans, with all the risks associated in that reflecting the higher risk.