Author Archives: Gideon

Lowball Watch — Pennsylvania

The York Daily Report brings the dispatch that the Pennsylvania Supreme Court has refused to review the judgment in the taking of the old, vacant York jail building. The Board of Viewers — that’s Pennsylvania talk for commissioners — awarded $65,000, plus $4000 in attorneys fees. But when the case went to trial, the jury awarded $1,250,000, with interest running at the rate of $188 per day.

Dylan Segelbaum, York RDA AppearsStuck With 1.25 Million Bill for Old Jail After Court Refused hear Appeal, York Deily Report, Aug. 16, 2018.

Awaiting the First Monday in October

Not much serious news in eminent domain except for the usual dull roar of more or less routine cases coming down now and then. But the US Supreme Court is sitting on two biggies. First, it has granted certiorari in the Knick case where briefs have been filed and nothing will happen until the after first Monday in October when the Supreme Court comes back from its annual recess and hears oral arguments. We are still watching in disbelief — pleasantly so for a change — as the US Solicitor General has filed an amicus brief on the Petitioner-Property Owner’s side, suggesting that SCOTUS dump the absurd Williamson County rule that requires property owners, unlike any other litigants, to refrain from suing in federal courts when their property is taken without the Just Compensation explicitly required by the Fifth Amendment.

So stay tuned folks. It shouldn’t be much longer, and we hope that it won’t turn out to be some sort of “October Surprise,” what with one Supreme Court seat vacant and no realistic hope of it being filled expeditiously.

The other case, the one in which a land owner’s petition for certiorari has been pending for some time is the California Martin’s Beach case where California courts — who else? — have decreed that the owner of a parcel of oceanfront land must open his property to the general public so its members can disport themselves on the beach, without payment of just compensation for this uncompensated imposition of a public access easement in open defiance of the SCOTUS decision in the Kaiser-Aetna case, holding that the right to exclude strangers from one’s land is the most important property right. This one has been sitting up there for a while so it’s fair to surmise that at least it isn’t being treated as a routine case so far.

So as we are fond of saying, stay tuned on that one too.

Happy Fourth of July!

Today is the start of the Fourth of July weekend, the time to set aside our differences — if only for a day or so — and to celebrate our good fortune in having been blessed by a life in this wonderful country that has bestowed upon us freedom, opportunity and prosperity that is not enjoyed anywhere else on earth, and that remains a magnet for freedom-seeking people all over the world. So whether you go to the beach, celebrate with a backyard barbecue, get together with family and friends, or just take day of rest at home, do pause, give these thing some thought and be grateful.

And pay no attention to the fools at the New York Times who are pitching the silly notion that the Fourth of July should be a day of protest. Nonsense!

So have a great weekend, but pause to appreciate your good fortune in living here.

The Illegal Alien Mess at the Border

As is our wont, we depart here from our usual practice of commenting on eminent domain and land use events, to comment on what’s going on in the news about the — Oh my God! — unprecedented but wicked, wicked practice of separating children from their parents when the latter are detained after crossing the border illegally, and charged with violating laws that control entering the US. In fact, such lamentations are BS — the treatment of those illegal aliens is no different than the treatment of domestic criminal defendants and their children. See Shaila Dewan, Young Children Taken From Their Parents: It Doesn’t Just Happen to Immigrants, NY Times, 6/23/18, at p. A14.

The story roiling the country has been that when those who enter the US illegally with children are separated from them when they are arrested, that is an act of gratuitous cruelty. Particularly when the children, poor babies, are left to the tender mercies of juvenile authorities, social welfare departments and foster homes. But we haven’t seen any protesters volunteering to take those children into their own homes. The fact is, however, that in spite of the turmoil there is nothing new, unusual or cruel about it. It has always been a routine practice in criminal cases, for the simple reason that you can’t imprison young children and you can’t give incarcerated law breakers a free pass just because they have young children. In the words of Ivar Lacis, a criminal defense lawyer, in a letter to the editor in the Wall Street Journal of 6/23-24/18:

“It is not uncommon for criminal defendants to bring their minor children to court with them for bail hearings, revocation of bail hearings, and revocation of bail hearings. . . . ” In such situations when the defendant is denied bail and is taken into custody by definition he is separated from his children, i.e., the children do not accompany him to prison, so if someone like a family member is not present tom take charge of the kids, they are taken in by a state social service agency. And illegally entering the US, says the writer, is by definition a crime. And so, continues Lacis:
“As an attorney I don’t understand the current outrage. [In such cases] parents have been separated, are being separated, and will continue to be separated from the minor children by the criminal justice system. Why should there be an exception for noncitizens who have been arrested for the crime of illegally entering the U.S.?”

Moreover, it turns out that in order to accommodate and house the hordes of illegal aliens crossing the border, the government is preparing to build temporary housing and “tent cities” for those illegal aliens. See Philip Elliot and W.J. Hennigan, “Navy Document Shows Plan to Erect ‘Austere’ Detention Camps” in the Florida Panhandle near Mobile, Alabama, at Navy Outlying Field Wolf in Orange Beach, Alabama, and nearby Navy Outlying Field Silverhill.”

So there you have it, folks. Tens of thousands of homeless Americans — many through no fault of their own — have been reduced to living in their cars, in the streets, under bridges, and in public parks, having to fend for themselves under horrible conditions, while alien Central Americans who willfully enter the country illegally, are being accommodated with new housing built for them. That housing, it says here, may be “austere” and we have no doubt that it is, but it is one hell of a lot better than living in the street, surrounded by unsanitary trash which — believe it or not — may not be removed by court order because, say the courts, though it contains such odious stuff as garbage, dead rats and human feces, removing it would interfere with the homeless folks property rights in their stuff.

And the hypocrites who are out there screaming over the “outrage” supposedly inflicted on the illegal aliens and their children, are not being heard from when it comes to the same practice of separating adult detainees from their minor children in domestic criminal matters. Are aliens privileged? Is there an exemption from the duty to obey the law for them?

Here in California you can’t build enough housing to accommodate ordinary people, much less the homeless, and the rents for apartments are rising out of sight, but the government is building housing for illegal aliens swarming over the order in violation of immigration laws. Are these people nuts? And the same goes for the people who have created this nightmare, while professing to be sympathetic to the plight of the homeless.

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.
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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.

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.”

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 . 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 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

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.”


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 and see today’s post. Enjoy!