Category: Uncategorized

Another Not-So-Hot Redevelopment Project — Brooklyn

Remember the hulabaloo over the Atlantic Yards project? How it would revive Brooklyn, etc.? The latest dispatch from that front from the New York Times, no less, indicates that it hasn’t been beer and skittles. We will quote from the Times, and let its words speak for themselves,

“[A local] pizzeria sits in the shadow of the $4.9 billion megadevelopment once known as Atlantic Yards, which has promised to deliver thousands of new residents and visitors to the area since it was proposed in 2003. But so far, the biggest change . . . Vanderbilt Avenue merchants have seen is rising rent.”

“The project has been troubled by delays, financial setbacks, lawsuits, and political wrangling. And the opening of the Barclays Center, the centerpiece of the development, in 2012, did not deliver substantial new business to Vanderbilt despite expectations that it would.” Rhonda Kaysen, A Long Wait for New Neighbors on a Brooklyn Street, N.Y. Times, Aug. 31, 2016, at p. B5.

And so it goes. Predictably. As California Court of Appeal Justice, Macklin Fleming  once put it: redevelopment project promoters promise they’ll bake a bigger economic pie, with bigger slices for all. But what they often tend to produce is pie in the sky. Of course, the NY Times does the same by duly reporting that in the sweet bye and bye good things will happen. We will await the event and see how it turns out if we are still around then.

For the full NY Times article go to http://www.nytimes.com/2016/08/31/realestate/merchants-wait-for-the-promise-of-vanderbilt-avenue-and-wait.html?ref=business

Steven Hill, “Law and Order’s” Adam Schiff, R.I.P.

Every lawyer we know, and lots of non-lawyers, just loved the TV show “Law and Order” — it captured the lawyers’ decision-making process and the flavor of the courtroom, including the doings of both brilliant and wacky judges, like no other TV show ever did, with a generous soupcon of New York thrown in. The casting was brilliant and our favorite character of all time was the fictional Adam Schiff (actually named Steven Hill) playing the District Attorney of New York city. He was eventually replaced in that role, but none of his replacements succeeded in capturing the flavor, the geschmack that he brought to it. Fred Thompson, one of his replacements and another favorite of ours, came close but his earthy Southern charm (and drawl) somehow did not ring quite right in the context of his role as a successful New York politician/lawyer/legal strategist.

We just learned that Mr. Hill has passed away at the age of 94 — not bad.

We do not claim being a Feinschmecker of acting, but we know a little something about what goes on in courtrooms, and are of the opinion that Mr. Hill entertained us royally, and enriched our professional lives. We are unlikely to see his likes again.

R.I.P. Steve

Judge or Jury? — Revisited

As promised in our recent post on the California Supreme Court’s Perris v. Stamper case, here is a copy of our recent article on that case’s ruling on the subject of judge vs. jury issues, from the Daily Journal, California’s foremost legal newspaper. It ran on August 19th.

It turns out that on the right to a trial by jury, Americans have had it wrong in understanding the British rule that governs the right to a trial by jury in eminent domain cases, which governs under the Seventh Amendment. But the unsung hero turns out to be the late Lewis Orgel, author of VALUATION UNDER EMINENT DOMAIN (1953) who had it right all along. Here it is:

 

Daily Journal

 

August, 19, 2016

Our eminent right to a jury

By Gideon Kanner

California’s late chief justice, Roger Traynor, once wrote that there are notions embedded in the law that have never been cleaned and pressed and might disintegrate if they were. A case in point is a holding embedded in the brand new California Supreme Court decision in City of Perris v. Stamper, 2016 DJDAR 8382 (Aug. 15, 2016). It was one of those complicated decisions with something for everybody that dealt with the issue of when, if at all, the existence of a future land dedication requirement as a condition to development must be considered now in valuing condemned land subject to such a dedication or exaction requirement in the future. This may sound like technical stuff, but it can have a profound impact on the value of the taken land, and is thus of interest to lawyers as well as appraisers.

Much has already been said about this difficult legal problem, and I leave to others the plumbing of its complexities. I focus instead on the court’s prefatory decision holding that this problem is not a jury issue, but must rather be decided by the trial judge because “no such jury right existed in England and the colonies in 1791.”

Unfortunately, this rule is mythical; eminent domain cases were triable to juries in Merry Old England in the 18th century, and therefore the American courts’ belief that they were not, is mistaken. This is important because the Seventh Amendment does not create a right to a trial by jury; it only preserves this right in cases where trial by jury was available at common law at the time the Bill of Rights was written. The Perris case cites a U.S. Supreme Court case as authority, but no British sources which, as it turns out, are to the contrary.

If you consult American eminent domain treatises, all you get is confusion. “Nichols on Eminent Domain,” Section 4.105 (Lexis/Nexis 2002) had it for years that there were no juries in British eminent domain cases. Its more recent editions contain a lengthy, confusing discussion that gets involved with sovereign immunity and such, but avoids a clear cut statement of the rule and its British basis. But the other authoritative eminent domain treatise, Orgel, “Valuation Under Eminent Domain,” Vol.2, Section 25, pp. 268-271 (Michie Co. 1953), states with no equivocation that that trial by jury was used in British eminent domain cases until 1919 when it was abolished by Parliament. Neither treatise cites any British sources supporting its position. Older editions of Nichols tried but failed. Nichols used to make a passing reference to Blackstone’s Commentaries, but cited the wrong part of Blackstone’s treatise (2 Blackstone 259), that says nothing that remotely bears on the subject. However, at 3 Blackstone 258-259, we learn that the “inquest of office” said by the old Nichols text to be the old British non-jury proceeding to acquire land, had nothing to do with eminent domain. It was a medieval procedure used to ascertain the king’s entitlement to land in cases of escheat, treason, intestacy, forfeiture and the like. More important, Blackstone makes clear that even these proceedings were triable to juries, except in cases of forfeiture for treason. “For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon or seize any man’s possession upon bare surmises without the intervention of a jury.” (Emphasis added).

You need not take my word for any of this. You can skip the confusing ancient stuff that few people understand (as our courts have done) and consult the horse’s mouth in the form of the modern British Court of Appeal opinion in De Keyser’s Royal Hotel Ltd. v. The King (1919). There, their Lordships review pertinent legal history (1708 to 1798), and with the concurrence of all parties, including the British attorney general, conclude that “in default of agreement with the owners the true value [of the taken property] is to be ascertained by a jury.” So much for denying jury trials in English eminent domain cases.

British history also fails to support the belief that inverse condemnation cases were only the flip side of eminent domain, as American conventional wisdom has it. Indeed, if they were like British eminent domain cases, then on that logic alone they had to be triable to juries. But what about the notion that inverse condemnation is some newfangled American constitutional proceeding unknown to the common law, and that the government was shielded from it by sovereign immunity? Not really.

Until the mid-19th century most British eminent domain cases were filed by private “promoters” who, in each case, were authorized by Parliament to take private property for roads, railroads, canals, etc., upon payment of compensation to the taken land’s owners. But when promoters failed to pay or the parties could not agree on a price, British property owners could sue in tort using a writ of trespass, to recover damages. See the discussion in the De Keyser’s case. Like all other common law actions, these were triable to juries.

That is also the view of Professor Keith Davies, the leading authority on British eminent domain law (or “compulsory purchase” as the Brits put it), and the author of the foremost British treatise on the subject. Davies clarified things for us Colonials when he appeared as a guest lecturer and presented a paper titled “The Jury in Eminent Domain,” at the ALI-ABA Course on Eminent Domain and Land Valuation Litigation in 2001, relying inter alia on Baron de Bode’s Case (1845). This case dispenses with the sovereign immunity myth, by concluding with a court order that that a jury be convened and try Baron de Bode’s claim against the Queen of England wherever she then may be in the realm. In short, the notion that cases of determining compensation for takings of private property were not tried to juries in England is mistaken, and this is as true of direct as of inverse condemnation cases.

It is a bedrock constitutional principle and a part of the civic ethos of our country, that trial by jury is enshrined in the Bill of Rights for good reason: It is treasured as a fundamental guarantee of Americans’ freedoms that interposes the judgment of the community as a shield between the citizen and government excesses. Why then, when it comes to eminent domain, trial by jury is suddenly disfavored by judges as if some sort of pesky impediment to good governance, is obscure. The purpose of the Bill of Rights was to protect the people from the government, not the other way around, and juries provide that protection in eminent domain cases as well as in others, as correctly noted by Justice William Douglas in U.S. v. Reynolds, 397 U.S.14, 23-24 (1970).

Obviously, it is a tall order to ask the courts to reconsider a rule, even an erroneous one, that they have been repeating for over two centuries. But it seems to me that the intellectual integrity of the law, and a candid acknowledgment of historical truth are too important to let this legal dog lie. _____________________________________________________________

Gideon Kanner is Professor of Law Emeritus at the Loyola Law School in Los Angeles. He is former editor of Just Compensation, a monthly periodical on the law of eminent domain, and was a regular columnist on takings law for the National Law Journal. He was a visiting Professor at the University of Aberdeen, and a guest lecturer in several British universities, as well as a speaker and a recipient of a British Academy scholarship at the International Colloquium on Expropriation Law held in 1990 at Oxford University.

 

    

 

 

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Raise a Toast to Good King Jan!

Once again, we depart from our usual topics to take note of a noteworthy anniversary that few people know about.

Portrait of John III Sobieski (anonymous, 4th quarter of the 17th century)

August 17th almost slipped by us unnoticed, but we caught it [almost] in time. What about that date? It’s the birthday of Polish King Jan Sobieski who was born on that date in 1629, and to whom we owe a big time debt of gratitude.

For it was King Sobieski and his army who rode to the rescue of Vienna then being besieged by the Turkish army that was making good progress, and was well along in capturing central Europe, advancing from the south. It’s a great story that you should know about. In the end, in 1683, Polish cavalry, notably the famous heavy hussars charged down the slopes of Mount Kahlenberg outside of Vienna and to borrow General Patton’s line, went through the Turkish army like crap through a goose, saving Vienna and the rest of Europe from Turkish conquest.

It’s good to remember that event for two reasons. First, if it hadn’t been for it, Europe (and probably your ancestors) would be speaking Turkish and attending Mosques instead of your favorite place of worship. Second, among the booty captured from the Turks by the victorious Poles, was a quantity of funny looking green grain that the Poles thought was camel fodder and were about to burn. But one of them, formerly a Turkish slave, knew what it was – it was unroasted coffee. The rest is history. He got ahold of it, roasted it and started the first coffee house in Vienna.

Here is one of those hussars, in full battle drag, including those famous metal-and-feather wings bolted to their armor back plates, that made a fearsome noise at full gallop and struck fear into the enemy’s hearts.

So let’s raise a toast to Good King Jan and let’s hear it loud and clear — Sto lat, sto lat, niech zyje, zyje nam.

And, of course, if you follow this advice, by all means toast King Jan with genuine Polish, rye vodka named after him. Na zdrowie!

Judge or Jury? Here We Go Again

Big news of sorts from the California Supreme Court, in the form of the new (8/15/16) 31-page opinion of the California Supreme Court, in City of Perris v. Stamper, Docket No. S213468, opinion by Liu, J., dealing at length with the problem of how to value property now, when it is subject to a dedication requirement in the future, when the property is sought to be developed. The problem is that the dedication requirement is subject to constitutional limitations laid down by the U.S. Supreme Court in the Nollan and Dollan cases. So how can you tell now how the dedication requirement will be applied in the future? Not exactly everyday fare, even for condemnation lawyers and appraisers. Still, when the problem arises it has to be dealt with.

Condemnors have argued that the part of the subject property that is subject to dedication should not be valued for its highest and best use, because when attempted to be so used it would have to be dedicated. Property owners, on the other hand, argue that all that would be, if at all, in the sweet bye and bye, and should not be considered now, and there may be no clear way of deciding now whether the dedication requirement will meet the strictures of Nollan and Dolan in the future. If you want to get into all that, you should read Nollan and Dolan, as well as this judicial gem. In short, it’s a mess that in the hands of different judged is certain to lead to diverse  (and even contradictory opinions). But it is bound to keep condemnation lawyers and appraisers gainfully employed.

Ah, but not so fast. Who says that this is  a decision to be made by judges rather than juries? The California Supreme Court, says so, relying on U.S. v. Reynolds, 397 U.S. 14, 18 (1970) — Stamper Slip opinion at p. 12. So what’s the problem? The problem is that this judicial statement is wrong. It is based on the idea that the 7th Amendment does not create a right to trial by jury — it only preserves the right to such trials as they existed when the constitution was adopted. So no jury trial in the late 18th century common law, no right to a jury trial now. Makes a fellow want to ask why we fought the revolution if we are to continue being stuck with old British stuff.

But actually, it appears that our courts are wrong; eminent domain (or “compulsory purchase” cases over there) were tried to juries in Merry Old England. But our courts don’t cite British sources.

We will be posting presently a short piece that explains all that old stuff, and if you believe the British Court of Appeals rather that American Courts you will be enlightened. In the meantime, check out Lewis Orgel, VALUATION UNDER EMINENT DOMAIN, Vol. 2, Sec. 25, pp. 268-271 (1953) for the straight poop.

More to come. Stand by.

Important Issue Before the Supreme Court

Word from the prestigious Volokh Conspiracy blog is that:

The Supreme Court voted 5-to-3 today to grant a stay of a lower court ruling that would have allowed a transgender high school student in Virginia to use the bathroom that corresponds with the student’s gender identity. Justice Stephen G. Breyer joined Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. in voting to grant the stay, noting that he was voting to grant the stay as a “courtesy” in order to preserve the status quo. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented from the stay, without opinion.”

We look forward to the airing of the Justices’ diverse views of this “important” issue that is dividing the country. We take it that the originalists on the court will engage in a spirited debate as to whether the Founding Fathers intended to allow Thomas Jefferson to go wee-wee in Mrs. Washington’s outhouse, or whether the founding proponents of the “living constitution” didn’t care who went where, saying “Oh, piss on it.”

But we can’t help wondering what would happen today if some person of evident but questionable masculinity were to barge in into the powder room of Ruth, Sonia and Elena, do his business and split, leaving the toilet seat up. Capital punishment anyone?

We await the court’s decision with bated breath.

 

Who Knew?

Today’s Los Angeles Times brings us an astonishing dispatch under the headline Why Home Costs Keep Rising (7/14/16, at p. C 1). In the Times’ words, quoting from its sub-headline:

“A real estate expert says a shortage of properties is lifting Southland prices.”

Well, what do you know? — you lower supply and prices go up. What will they think of next?

In fairness to the Times we note that this article makes a passing reference to the difficulties faced by developers who want to build housing where people want to live, but you have to search for it by reading the article carefully.

California Choo-Choo (Cont’d.)

Don’t miss the article from Reason magazine explaining that the California leadership knew all along that the high speed “bullet train” line between San Francisco and Los Angeles could not be workable but went ahead with it anyway. Matt Welch, The Political Class Knew California High-Speed Rail Was B.S., and Supported it Anyway : see http://reason.com/blog/2016/06/28/the-political-class-knew-california-high/print

A good read.

 

Penn Central — The Never Ending Story

We have had occasion recently to note the latest round of litigation over the air rights above Grand Central Terminal in New York. This controversy has the potential of becoming a highly significant court decision. Right now, the city’s motion to dismiss is fully briefed and pending. So stand by.

If you are interested in regulatory takings in general and the wretched Penn Central controversy in particular, we recommend the summary of this litigation by our fellow blogger, Michael Rikon, the foremost eminent domain lawyer in New York. See Bulldozers at Your Doorstep, http://eminent-domain-blog.com/update-grand-central-terminal-air-rights-takings-litigation/ . This blog post will give you a detailed summary of the parties’ respective arguments.

 The original Penn Central case was decided by the US Supreme Court in 1978 — 38 years ago, and the end of this controversy is still nowhere in sight. For our own grand overview of the Penn Central mess, see our article Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Journal 679* (2005). It reviews in detail the decisions of all four courts that decided that case.

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* There was a printing error in the production of that issue of that Journal, so your hard copy of this article may show that the article begins at p. 653. But the correct page of the article’s beginning is 679.

Confucius Say . . .

Once again, events “out there” have inspired us to say something about important matters outside our little bailiwick of eminent domain and land use. Take a look at this

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Unless you have been vacationing on the far side of the moon lately, you know that we are in the midst of a major kerfuffle over how to characterize the folks of Middle Eastern origin who worship the merciful Allah but tend to amuse themselves by dispatching thousands of Americans, using anything that comes to hand, ranging from airliners (New York etc.) and firearms (Fort Hood, San Bernardino and Orlando), to a converted pressure cooker (Boston).

Nonetheless, when confronted with this bloody reality, President Obama professes to embrace saintly restraint by insisting that Islam is a “religion of peace,” and refuses to utter the phrase “Islamic terror” to characterize these events. Actually, I don’t really know why he is doing it. I guess that he doesn’t want to offend the Muslim minority, even if the handiwork of its members deeply offends the American majority which, understandably, takes a dim view of acts of terrorism being perpetrated on them in their own country by people of foreign origin to whom they have extended their hospitality.

Donald Trump, uncharacteristically, has not said much on this subject, but he did remind us that, “I told you so.” Which is hard to argue with because he did.

Hillary Clinton has joined the fray, but though she does not embrace the President’s odd verbal formulation in refusing to name our enemy, she declines to call him out for it. We shouldn’t worry about how he phrases it, says she, because what is important is not what we say but what we do. Unfortunately, “we” aren’t doing much of anything that qualifies as effective interdiction of lethal terrorist attacks either. The folks in charge of our anti-terrorist efforts concede that under our criminal law regime (of which more presently) it isn’t possible to interdict all imminent acts of terrorism. Suspicious characters are routinely left to do their thing because their suspicious behavior fails to rise to levels of clarity required by our criminal law, or because good-guy citizens are reluctant to “say something” as they are admonished to do, lest they be charged with the dreaded sin of “Islamophobia.” So they keep quiet and the bad guys get a free pass.

True, our anti-terrorist forces deserve much credit for preventing terrorist atrocities that never happen and that we thus never hear about, but, alas, too many of them do occur to lethal effect. Following each of them we are enjoined by our betters to watch our mouths because if we express our righteous anger we may direct it at the community from which the terrorists come, and thereby offend good-guy Muslims. That just won’t do, we are told, even if the Muslim community tends to acquiesce in their coreligionists’ loathsome behavior (who can forget the TV images of Palestinian Arabs dancing in the streets with joy on 9/11 when the Twin Towers were attacked, killing some 3000 Americans?) To say nothing of the ongoing Arab mistreatment of Christians who are being decimated and driven out of the Middle East where their religion originated and where they have been living for millennia.

But if Americans are offended by all that, say our betters, we should just shrug our shoulders like the French, noting that it’s case of c’est la guerre. Except that the French sure lost their sang froid when Muslim terrorists attacked Paris, and la guerre means “war” in French, whereas our politically correct view disparages waging effective war lest we act “disproportionally.” According to our enlightened leadership, better we should restrain ourselves and continue to attend periodic mass funeral services with dignity, leaving it to politicians’ to bloviate from on high, and promise retribution that somehow never comes in an effective fashion that deters the bad guys from future acts of terrorism.

Unfortunately, resorting to criminal law enforcement in such cases is ineffective. If nothing else, when the bad guys perish in the process of terrorizing our people, as they often do, there is no point to viewing them as criminals because there are then no living defendants to prosecute and punish.

In moments of candor, our leaders tell us to expect more terrorism in the future but even so they want us to refrain from speaking out forcefully against its perpetrators, lest we offend their community. But this only favors the terrorists. To take the recent Orlando massacre as an example, if the terrorists succeed in killing some fifty Americans, while we dispatch one – count ’em, one – killer, isn’t that a victory for the bad guys? Just ask any military strategist what he thinks of a battle in which the aggressors inflict fatal casualties on the good guys at a rate of 50 to one.

This part of our folly is rooted in the idiotic notion that allows the bad guys to wage unrestrained, albeit unconventional war on us, while we cannot use wartime measures against them; we can only prosecute individual terrorists, one by one, with all the niceties, delays and procedural furbelows of a criminal prosecution. All of which is good stuff in dealing with the criminal elements of the country in peacetime, but not as a means of waging an effective defensive war on home-based terrorists.

But what does all that have to do with Confucius? Quite a bit, it turns out. I find it interesting that in phrasing it as Hillary Clinton did (that words used to govern are not important), she took on a fight that she probably did not intend to get into and that she is unlikely to win. She took on no less a historical personage than Confucius.

When the Prince of Wei needed advice on sound governance, he asked Confucius what is the most important function of government. The wise one responded that the most important function of government is to see to it that things are called by their proper names. Why? Because as he explained in his Analects (Book XIII., Chap. 4, Verses 4-7) “If names be not correct, language is not in accordance with the truth of things, [and] affairs cannot be carried on to success.” And when that happens, “proprieties and music do not flourish,” “punishments will not be properly awarded,” and “the people do not know how to move hand or foot.”

The noted semanticist S. I. Hayakawa explained in his classic book “Language in Thought and Action” that choosing one’s words to communicate is like choosing symbols and images for a map – use the wrong words, and the verbal map you produce, that is then used to guide us will lead to the wrong destination. So words that are used by society’s leaders to make government policy and convey it to the governed do matter. A lot. True, the proverb has it that actions speak louder than words, but as noted, in this case, when it comes to preventing terrorist acts at home, our actions leave something to be desired too. Not counting the various small terrorist attacks, we have suffered five successful, major terrorist massacres in sixteen years, which comes to one every three years – not exactly a record to write home about.

So there you have it, folks. Looks to me like Confucius nailed it. If you aren’t allowed to name your enemy, nor use effective means of combatting him in ways that are appropriate to his avowed style of warfare, you are bound to suffer confusion and will continue enduring ongoing major massacres at the terrorists’ hands. So Hillary Clinton take note, and do watch what you say, because it matters, particularly at times of peril, when the people need encouragement and stout leadership rather than politically correct pablum.