Author Archives: Gideon

Wisconsin Legislature Flips Off Supreme Court’s Murr Decision

Remember Murr v. Wisconsin? Sure you do. Murr was the recent Supreme Court land use/taking decision in which the majority of the U.S. Supreme Court inflicted yet another procedural nightmare on the law of land-use/takings. The court (per Kennedy, J.) did so by creating yet another multi-factor test, this time to determine what is the “larger parcel” in regulatory taking cases.

The facts were simple. The Murrs bought two adjoining parcels of land in the early 1960s. They were bought at different times, and were taxed separately so they were carried on the tax rolls as two separate parcels. The Murrs lived in a cottage they built on one parcel, and kept the other one vacant for future use. Eventually, they decided to build on it but the local regulators had a little surprise for them. Under a local regulation, the Murrs’ two parcels were deemed one, and — relying on the absurd statement in Penn Central to the effect that “takings jurisprudence” does not divide a parcel into segments for the purpose of deciding that a part of it has been taken — denied permission to build on it. Under that rule, when it comes to regulatory takings, it’s either the entire “larger parcel” or nothing at all.* So the Wisconsin regulators, relying on that rule took the position that the Murrs could neither sell the second (vacant) parcel nor build on it. The Murrs deemed that a de facto taking of the second parcels, but to no avail. The US Supreme Court upheld the regulators’ position in Murr v. Wisconsin

But something wonderful happened at this point. The Wisconsin legislature got wind of the Murr decision, and responded with praiseworthy speed. It promptly enacted Senate Substantive Amendment 1, to Senate Bill 387, which among other things repealed the local rules under which the regulators had purported to act. It forbade local land regulators from imposing lot merger requirements on separate lots. For a quick summary of the new legislation see Scott Bauer, Scott Walker Signs Bill Inspired y Western Wisconsin Cabin-Owners’ Court Fight, November 27, 2017.

Scott Walker signs bill inspired by western Wisconsin cabin-owners’ court fight

It took the Wisconsin Legislature only five months to rectify the US Supreme Court’s wretched opinion. Nice going.

* The reason we think poorly of that statement in the Penn Central opinion is two-fold. First, when the US Supreme Court uttered that line, it cited no authority — no precedent, no treatise, no commentary, no reason, no nothin’ in its support. It was just a naked assertion. Second, what the then-existing law was, held to the contrary — see U.S. v. Grizzard (1911). Besides, as anyone who has tried an eminent domain case knows, in a partial taking case the condemnor must pay not only for the part taken, but also severance damages suffered by the property’s remainder left in the owner’s hands after the taking. So that Penn Central statement about what the “takings jurisprudence” says, stands on feet of clay, or more accurately, no feet at all.

But hey, man. The Supreme Court had the naked power to say so, and it did just that, thereby confusing the law and providing lawyers with much gainful employment.

Lowball Watch — Pennsylvania

The York Dispatch reports that the Commonwealth Court has affirmed a jury award of $1.25 million for the taking of a 2.9-acre parcel of land with an old, former prison building on it. The Redevelopment Agency paid the owners $65,000, the amount awarded by commissioners. But after a trial, the jury took only 30 minutes to bring it its $1.26 million award.

According to our calculator, that jury award comes to almost 20 times the city’s offer.

Liz Evans, York City Must Pay $1.25 Million For Old Prison Property, Appellate Court Finds, York Dispatch, March 14, 2018.

Back to the Future on Housing? Not in Our Lifetime.

If you are a person of that certain age like your faithful servant, you remember things and memory enables you to put events in perspective. In the good old days, we were told by planners that the American way to live was to buy a suburban home, ditch the city, and head out to suburbia where life was easier, schools were better and safer, and the kids could walk and play without fear of being robbed of their lunch money, or worse. Both ends of the political spectrum were in favor of this, including Herbert Hoover and FDR’s greenbelt czar Rexford Tugwell. This, we were told, was the benign future. And Uncle Sam lent a hand by insuring home mortgages and building highways to the suburbs with federal funds.

But things didn’t quite work out. The departing population left behind shells of cities, some of which more resembled bombed-out cityscapes that middle-class habitats. Add to that the negative factors that drove people out of cities, like riots, rising crime, drugs and above all the catastrophic decline in the quality and safety of urban schools, and you get an insights into the motivation of urban dwellers heading out to the suburbs. Thus it became a no-brainer for urban dwellers to pack their stuff and head out to the suburbs.

But now, the message from our betters has been flipped on its head. Now, we are told, we should pack our stuff and head back into cities, there to live in mid-rise, mass transit oriented apartment buildings. That’s the word from on high (from a Calififornia State Senator to be exact), who sees this vision of the urban future as the way to go to reduce the dreaded carbon footprint by elimination of long car commutes. See Conor Dougherty and Brad Plumer, In California, a Green Split Over a Density Push, N.Y. Times, March 16, 2018, at p. A1.

Predictably, this proposal has met with controversy and resistance from inter alia the Sierra Club, which is a real surprise. Will it succeed? We doubt it. “[R]esearchers studying public opinion have found that, as one survey from 2000 put it, Americans will support action in climate change ‘as long as these initiatives do not demand a significant alteration in lifestyles,’ such as driving less.”

So will Californina abandon their cars en masse and walk to the subway in Southern California’ 90-degree summer heat? Maybe some will. But not many.

Stay tuned.

To Tell the Truth You Have to Tell the Whole Truth

When witnesses are sworn in before testifying they have to swear to tell (a) the truth, (b) the whole truth, and (c) nothing but the truth. Why the rigmarole; why not just have them swear to tell the truth? Answer: because by adding questionable extraneous assertions, or — as in the case at hand — omitting material parts of the story, the listener/reader can be misled. Case in point: Richard M. Frank’s column Property Rights vs Land Use Regulations at High Court, Los Angeles Daily Journal, March 15, 2018.

There, Mr. Frank, professor of “environmental practice” at the UC Davis School of Law, tells us about the Supreme Court’s recent grant of certiorari in Knick v. Township of Scott. It appears that the court is going to take another look at the “ripeness mess” it created in stages beginning some 30 years ago, when it engrafted a ripeness requirement onto takings litigation when it decided Agins v. City of Tiburon, and Williamson County etc. v. Hamilton Bank, and compounded it in San Remo Hotel v. San Francisco. The truly mind-boggling one in International College of Surgeons v. Chicago which held that you can’t sue for an unconstitutional, uncompensated taking of your property in federal court, but if you sue in state court (as you must under Williamson County) your opponent can remove your case to federal court and then — believe it or not — argue successfully that your case should be dismissed because you should have sued in state court. And never mind that you did just that, and that it wasn’t you but your opponent who removed the case to federal court. Now go back and re-read the last sentence slowly and attentively and reflect on the fact that this isn’t some grotesque joke. That’s “the law.” Yes, it is. For a more detailed discussion of this mess, see our article, Michael M. Berger and Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-parody State, 36 Urban Lawyer 671 (2004).

Under this clutch of SCOTUS cases, if you are an owner of property and government regulation deprives you of utility of your land, denying you all economically viable use of it, thereby effecting its de facto uncompensated taking and violating your constitutional rights under the Fifth Amendment, you can’t sue in federal court like every other kind of plaintiff to show that your constitutional rights have been violated by local government.

So it seems to us that if SCOTUS is thinking of straightening out this intellectual and moral mess, that ought to be a cause for satisfaction by every intellectually honest lawyer, no matter which side of the controversy he or she is on. But that hasn’t been the case. Government lawyers have been pushing this absurd doctrine to the nth degree, and some courts — to their discredit — have been going along with it. You don’t think so? Then try to contemplate the federal courts’ ruling that a property owner caught in this predicament cannot sue because he is simultaneously too early (his case is unripe) and too late (his effort to comply with Williamson County has rendered his federal claim res judicata so he can never get any relief, either is state or federal court.

So what does all this have to do with Mr. Frank’s article? A lot. What he does is tell the Williamson County, story about how you first have to sue in state court, but never gets around to telling his readers that the “first” isn’t first; it is rather the end of the game, because as we noted, when you sue “first” in state court (as you must under Williamson County) your case is over and you cannot — not ever, not never — get an adjudication of your federal constitutional rights in federal court like every other kind of constitutionally aggrieved plaintiff.

Is that all? Not quite. Mr Frank evidently couldn’t resist it, so he inserted into his piece a dig at Justice Holmes’ landmark Pennsylvania Coal v. Mahon holding, noting snidely that it was made up of the whole cloth. Really? And here we thought that it was consistent with first-year property law course material. He fails to clue in his readers to the fact that the California Civil Code (Sec. 654) expressly defines the right of use of one’s property as a property right. And he also fails to note that for years the US Supreme Court defined property that is subject to constitutional protection as not a thing, but a group of rights, including the right of use. See Lucas v. So. Carolina Coastal Council.

So let’s be careful out there, folks. Government lawyers have been taking advantage of their favored position in the courts and abusing it when they could.

And speaking of the whole cloth, in the 1970s they floated a novel doctrine that if adopted would — abracadabra! — transform the traditional, private right to build on one’s land into a “public right.” See Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1973, at p.1, reporting how a bunch of fat cats dba Citizens Advisory Committee on Environmental Quality announced that “henceforth development rights must be regarded as resting with the community rather than with property owners.” Fortunately, the US Supreme Court rejected that suggestion in the case of Bituminous Coal Assn. v. De Beneditis and reaffirmed the right to just companation for takings of property, whether physical or regulatory, total or partial, temporary or permanent in Firs English etc. Church v. Count of Los Angeles.

Calling All Kultur Mavens!

You may find this hard to believe, but out here in la-la land, the place where we never tire of trying to make ourselves look foolish, we have a new cultural cause celebre. Out in the Silverlake area of Los Angles a fellow owns an old, former gas station, now used as, er, we are not sure as what but it looks like an old car repair shop. It was built in 1941 and its owner, reasonably enough, thinks it has outlived its usefulness so he wants to tear it down and build housing which — Lord knows — is desperately needed.

But guess what? Local NIMBYs are protesting because they want this old decrepit-looking building designated as a “cultural monument” and preserved for posterity. Here it is in all its cultural glory:

Use the link below, and look at the photograph and see for yourself. One picture, as they say, is worth a thousand words. (Cut the link and paste it into your browser so you can behold this property in all its “cultural monument” glory):

What makes this a case of deja vu is that we started our amateur journalistic career by writing in 1989, in the now defunct Los Angeles Herald Examiner about a similar caper in Studio City. Gideon Kanner, The Great Car-Wash Monument Caper, L.A. Heralf Examiner, July 2, 1989, at p. F1. There, local NIMBYs demanded that the City Cultural Preservation Commission declare a local car wash to be a “cultural monument” and thereby prevent its lawful owner from tearing it down and putting up a mini mall in its place. It was located at the busiest intersection in town, but that did not prevent the NIMBYs from calling for the preservation of “our quaint little village.” Incredibly, they got their way when the commission voted their way, but their triumph was short-lived when a Los Angeles Superior Court judge issued a writ of mandate vacating the “cultural” designation.

But while the fight lasted, it was a sight to behold, with the LA Times running beaucoup articles on this weighty civic matter almost on a daily basis. They even ran one of those full page Point/Counterpoint thingies where your faithful servant and a disappointed local politico squared off, with us taking the side of the owner’s right to use his property by tearing down the old car wash and replacing it with a small local shopping center. See Should a Studio City Car Wash Be Preserved as a Cultural Monument?, LA Times, June 25, 1989, at p. 5 (Valley Edition).

Fun was had, but all things come to an end and in the end the old car wash was torn down and replaced with the shopping center which as far as we can tell is thriving.

So we can’t wait to see how the Silverlake “cultural monument” caper turns out. Stay tuned.

Urban Decline — Chicago

The decline of American cities is an old, sad story, with Detroit usually taking center stage because of the severity of its problems and its abandonment by over half its population. We wrote about it in Detroit and the Decline of Urban America, 2013 Michigan State Law Review 1547, and you may want to take a look at it. But you rarely see a broad discussion of this phenomenon that combines the role of land-use law and policy as well as municipal misgovernance, local politics, law enforcement and race relations. Now, along comes Joseph Epstein, our favorite essayist, and takes on this subject from soup to nuts.

Epstein manages to tell the story — the whole story of urban decline — in a single essay that is both informative and occasionally amusing. The only factor in this sad story of urban decline that he does not get into — and who can blame him for that? — is the role played by the post World War II government policy of encouraging and financing an out-migration from cities to suburbs. That was covered by Jane Jacobs in her famous book, The Death and Life of American Cities.

So we recommend that if you have an interest in land-use law and politics, and their combined effect on American cities you read it. Here is the link:

California Choo-Choo – (Cont’d.)

In a few words. Here is the daily on-line news summary for today, from the LA Times:

“$$$$$: The California bullet train project has taken a sharp jump in price. The state rail authority announced Friday that the cost of connecting Los Angeles to San Francisco would total $77.3 billion, an increase of $13 billion from estimates two years ago. The rail authority also said the earliest that trains could operate on a partial system between San Jose and the farming town of Wasco would be 2029, five years later
than the previous projection. Los Angeles Times ”

Frankly, we never heard of Wasco. Maybe it’s because it’s located 2o or 30 miles northwest of Bakersfield. But on the plus side, it says in Wikipedia that Wasco produces over half the roses in California.

New Takings Case — Once More Into the Breach

Here we go again, folks. The Magnificent Nine have granted certiorari in another taking case. What’s more, the question presented is whether or not the court should reconsider the wretched procedural mess it dumped on an unsuspecting legal world in Williamson County etc. v. Hamilton Bank back in the 1980s. There, for no evident reason and without any doctrinal support — without benefit of briefing by the parties — it held out of the blue that plaintiffs in uncompensated taking cases, unlike any other class of litigants, are not allowed to sue to vindicate their federal constitutional rights in federal courts, but must instead file their action first in state court. Until they thus exhaust their available state remedies, their federal cause of action (under 42 USC Sec. 1983) is not ripe.

If that were all, Williamson County would have been a bad, decision pointlessly creating a duplicative waste of time and resources for courts and parties alike. But there was more. Acting supposedly on the basis of Williamson County, lower federal courts began ruling that if a plaintiff complies with this crazy rule (as he has to), the decision of the state court denying compensation becomes res judicata (or an act of issue preclusion) so that the result is that according to these courts, a taking case becomes barred by res judicata or issue preclusion at the very moment it became ripe for federal litigation. Crazy? We’d say so.

Even worse, if that is possible, are cases where the aggrieved property owner sues in state court like he is supposed to under Williamson County but the defendant city removes the case to federal court, claims the right to be there because the issue is one of federal law, and then moves to dismiss the lawsuit on the ground that the owner was supposed to be in state, not the federal court. No, we are not making this up; we wrote at length about that anomaly. See Michael M. Berger and Gideon Kanner, Shell Game! You Can’t Get There From Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage, 36 Urban Lawyer 671 (2004).

The case in which certiorari was granted is Knick v. Township of Scott. Cert was just granted so with a little bit of luck — whether good or bad luck remains to be seen — we’ll get an opinion by the end of the court’s term, or in plain English by the end of June.

So stand by. For now, round and round she goes, and where she stops nobody knows.

Follow up. A sharp-eyed reader takes issue with us and tells us that there is no way the opinion in this case can be filed by the end of this term, so we will have to wait until at least sometime next fall. He is probably right, and if he is, this is good. Opinions issued at the end of the Supreme Court’s term are notorious for having been produced during the “end-of-the-term crush” when clerks regularly pull all-nighters in an effort to finish all the opinions in cases that were argued during the term. The result is that many of those opinions are actually produced by harried, inexperienced youngsters desperately trying to finish their task by the end of June. This is not an atmosphere that is conducive to clear thinking and careful editing. So maybe if the opinion is written next term it will be produced under better circumstances, by people who are not pumped up on coffee and God-knows-what-else, pounding their word processors in a midnight effort to get their job done by midnight of June 31st.

If You Wonder Why There is a Severe Housing Shortage In California . . .

. . . you have to read this opinion of the Clifornia Court of Appeal in which some poor guy tried to build two houses on his 10,000 sq. ft. lot. If nothing else, you just have to read the Byzantine chronology for yourself to believe what went on in this case. Suffice it to say that the permit-seeking process began in the 1990s, and has gone on for 20 years! And the holding of this decision, filed today, is that the case is still not ripe. The case is Mahon v. County of San Mateo, Cal. Ct, App., 1st District/Division One, March 5, 2018 The opinion is unpublished, which means that you can’t cite it in California courts as an authority.

So if you are a land use/taking junkie, have at it:

California Choo-Choo — Cont’d.

Big article in today’s Los Angeles Times. Ralph Vartabedian, Bullet Train Costs Rise Again, March 5, 2018, at p. B1. “New business plan will show the project taking more money and time.” Surprise, surprise.

Estimates of those increases in costs are not provided but we are told that they’re a’comin later this year. We can’t wait. Otherwise, though we have read this article a couple of times, we can’t actually say what it says, except that the new manager of the bullet rain project allows as how those cost increases “are likely to cause a furor.” Also, he says that this project “is the most transformative [he] ha[s] ever seen.” Whatever that means.