Category: Uncategorized

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:

http://www.courts.ca.gov/opinions/nonpub/A149633.PDF

Lowball Watch — Ohio

The Chronicle-Telegraph of Lorain County, Ohio, reports that a local judge, after a three day bench trial, rejected the Ohio Turnpike Commission’s offer and deposit of $11,865, and awarded the condemnees $1,093,181 for the taking of 0.338 of an acre out of their 123-acre larger parcel. See Scott Mahoney, Chronicle-Telegraph, March 2, 2018.

The report does not provide any details as to what was the specific issue dividing the parties, so we surmise that it had to do with severance damages.

For the story go to
http://www.chroniclet.com/Local-News/2018/03/02/Property-owners-wins-1M-lawsuit-against-Ohio-Turnpike.html

Follow up: We learn from a post of News5 Cleveland that the taking of that 0.338-acre parcel eliminated access between two parts of the subject property. https://www.news5cleveland.com/news/local-news/oh-lorain/lorain-county-family-awarded-more-than-1-million-after-ohio-turnpike-seized-their-land

Lowball Watch — California

This one’s a doozy. We are informed that a federal jury in California has just brought in a whopping verdict for the taking of 1000 acres of iron ore bearing land with a mining permit. The subject land is out in the Mojave Desert near Twenty Nine Palms. The feds’ evidence of value was $5.6 million. The owners’ evidence was $38.6 million, and the jury verdict was $30,283,750, delivered after only three hours of deliberation. The case is United States v. 1005.58 Acres, etc., Case No. 5-16-cv-1014 VAP (SPx), Central District of California.

The smiling owners’ counsel is Ed Burg of Manatt, Phelps and Phillips.

Whatever Happened to Taking “Underwater” Mortgages?

A funny thing about the press and media. Sometimes they pick up an idea and go on about it, assuring us that it is important and bids fair to influence public events in a profound way. But then poof! After a period of pontificating about it, the news item sort of vanishes from the printed page never to be heard about again.

For example, whatever happened to the bright idea of taking mortgages on “underwater” homes by eminent domain, restructuring the debt secured by those mortgages, and then selling the subject homes for a new, lower price that would still put a buck in the pockets of the city hall promoters of this goofy idea. But in spite of a flurry of articles by out-of-it professors and their press followers, it didn’t happen. The problem with this wacky scheme was that a condemnor acquiring property by eminent domain has to pay fair market value, which would leave no room for making a profit — someone would have to subsidize such a scheme and no one was willing to do so.

So, to the best of our knowledge, it didn’t happen.

Ed McKirdy — R.I.P.

It took us a few days to recover from the shock, but reality must be faced. Our friend and colleague Edward McKirdy has passed away. He was a gentleman and a super lawyer whose presence enhanced any gathering.

We could at this point go on and launch into a string of complimentary adjectives, but it somehow seems unnecessary. If you knew Ed you must know what a gentleman, a scholar and a mensch he was, and what a privilege it was to work with him. And of course there was Ed the man. If nothing else, it was a unique pleasure to dine with him, and just to sit with him and Laura, his charming, one-of-a-kind wife and engage in the lost art of intelligent and witty conversation over a good meal.

Our profession is poorer for his passing, and we will never see the likes of him, his talents and his wit again.

The Fish that Ate Manhattan

Los Angeles Daily Journal

Jan. 3, 2018

THE LITTLE FISH THAT’S KILLING MANHATTAN
Gideon Kanner
Professor of Law Emeritus, Loyola Law School

Being old isn’t all bad. If you’re lucky, you remember things and you gain perspective. Case in point, the abysmal traffic conditions in Manhattan recently reported by the New York Times which reports that Midtown Manhattan traffic has reached a near-gridlock condition. Winnie Hu, “App-Hailed Cars Clog Streets. Should Riders Pay for the Jam?” Dec. 27, 2017 (front page, no less).

Current average car speed in midtown Manhattan is 4.6 mph, down from 6.5 mph only five years ago. (Walking speed is 3 mph — which means that a jogger can beat Midtown traffic.) The Times attributes these conditions to the presence of Lyft, Uber and Juno ride-hailing app vehicles looking for fares. Adding insult to injury, “more than a third of ride-sharing cars and yellow taxis that clog the streets are empty at any given time during weekdays in Manhattan’s main business district.”

Today, there are 103,000 for-hire vehicles plying New York streets, as opposed to only 47,000 as recently as 2013. Uber alone puts 65,000 cars on Manhattan streets. The upshot is that you can easily get a ride when you want one, says the Times, but once you get in the car, you’re stuck.

But another way of looking at this problem is that Manhattan streets are unequal to the task of accommodating modern traffic. So the question virtually asks itself: Weren’t New York traffic engineers smart enough to see what was coming and what to do about it? Yes, they were, but these days, planning and building are two different things once environmental concerns are brought to bear on the problem at hand.

The story of the old decrepit Manhattan West Side highway that was torn down back in the 1970s, but never replaced is instructive. Why? Oh, they tried, and therein lies a tale. What stopped the would-be highway rebuilders was a lawsuit brought by environmentalists who persuaded a local federal judge, Thomas F. Griesa, to bar the construction of a new replacement West Side Highway on environmental grounds.

By an odd coincidence, the same issue of the Times that tells us about the impending Manhattan gridlock also carries an obituary of Judge Griesa, and brings it all back to mind. Griesa found that the plans for the proposed replacement highway violated environmental laws, and barred its construction. The plan was that the new West Side Highway would permit much of the local traffic to bypass the congested mid-Manhattan streets, and keep it moving. It would run from the southern tip of Manhattan to 42nd Street, using a tunnel for a part of its route. It was projected to cost some $2 billion (in 1970s dollars, or $5.7 billion adjusted for inflation).

So was the proposed new highway environmentally bad by increasing air pollution, as claimed by the environmentalists? No. Judge Griesa, according to the Times, rejected that argument, and based his highway-killing judgment on the proposed highway’s adverse impact on fish. Fish? In Manhattan? Yes, fish. Specifically, the Hudson Striped Bass which was not even endangered. It was, according to the judge, “one of the nation’s most popular and commercially lucrative fish,” and it still is. So the new highway was not built, even as Manhattan traffic grew worse and is now approaching gridlock conditions.

As far as I know, the Hudson River has been cleaned up to some extent, but that was largely due to removing industrial waste accumulated on the river bottom in the industrial area way upstream, near Poughkeepsie. It had nothing to do with automobile traffic in Manhattan. Swimming in the Hudson remains hazardous in places. And so I fail to see how improving the river water quality for fish does much of anything for embattled New Yorkers stuck in traffic, waiting for the red light to change so they can move forward another few feet. To say nothing of wasted energy and air pollution caused by all those idling cars (recall that, ironically, air pollution was what the environmentalists claimed to be defending New Yorkers from).

Which brings us to the moral of this story — actually two morals. First, judicial rulings have consequences, even when there is a time lag between their promulgation, and a visible manifestation of their effects. Some judicial rulings can be terrific, but others are unsound, or even disastrous, like the misbegotten judicial notion of bussing kids from good schools to decrepit, dangerous inner city ones, a feat that helped empty the cities of their middle class populations and in some cases transformed them into urban wastelands, as middle-class families fled to the suburbs.
Second, a legal question: How come, in eminent domain cases, the same judges who wield a heavy hand in environmental review litigation — such as killing entire public projects on environmental grounds — hold that condemnors’ findings of public use are “well-nigh conclusive” and disclaim any power to deal on the merits with land owners’ defenses alleging that condemnors’ findings of necessity for the proposed public works, their efficacy, safety, location, layout, etc. are defective?

In the notorious Chevalier case, the California Supreme Court went so far as to hold that in eminent domain cases, state compliance vel non with statutory criteria of public necessity was altogether nonjusticiable, not even where the condemnors’ determination was obtained by fraud, bad faith and abuse of discretion. The California Legislature repealed that rule in 1976 but the court never retreated from it, and even now review of these matters is available only in cases of a condemnors’ “gross abuse of discretion” or bribery. New York federal courts did the same over there, when in the Rosenthal & Rosenthal case they upheld a condemnation, refusing to inquire into allegations that a redevelopment project’s boundaries were corruptly drawn to benefit the mayor’s friends.

Conclusion: Ideas do have consequences, and as this saga illustrates, in time seemingly unconnected court rulings can have a profound impact on people’s lives. The parties who fought it out before Judge Griesa almost a half-century ago could have no idea that their wrangling over the comfort levels of an abundant fish would come at the expense of people’s life quality affecting their daily lives.

Lowball Watch — Virginia

The Martinville Bulletin, 12-29-17, reports that the Virginia DOT deposited $6.28 million for the taking of a truckstop, but settled for $7.2 million, an increase of close to $1 million. Laurence Hammond, VDOT to pay $7.2 million for truck stop closed by Batentout Highway project, for an increasr of $920,000.

http://www.martinsvillebulletin.com/news/region_and_state/vdot-to-pay-million-for-truck-stop-closed-by-botetourt/article_69d43010-3fcf-5034-882a-8de569ae0695.html

Enjoy Your Thanksgiving and be Grateful — That’s What Thanksgiving is All About

The Thanksgiving holiday is upon us, and it’s time to give thanks for all that we have, that the rest of the world is envious about. It’s not about fixing and eating turkey etc. It’s to take time out to reflect on how fortunate we are to live here, in the United States of America. To give thanks.

If you don’t embrace that view, name one country in the world where you would rather live. You can’t. And if you think you can, explain to us why you haven’t moved there to enjoy whatever it is about personal, economic and civic life you contend is better over there. Millions of people all over the world understand that, and millions of those who do, strive to leave their homes and come here to live among us. If nothing else, this should tell you a lot.

So enjoy your holiday, and don’t forget that turkey feast or whatever floats your boat gastronomically.

Is the Chavez Ravine Curse Being Lifted?

The Dodgers are into the 7th game of the world series, which is a big deal even if they don’t win it. So given the long interval between the Dodgers’ last series and today, maybe the Chavez Ravine Curse is finally being lifted. You don’t know about that curse? Sure you do if you are a reader of this blog.

A while back we wrote about it, explaining the municipal shenanigans that led to the City of Los Angeles acquiring that plot of land and conveying it to the Brooklyn Dodgers to induce them to move from Brooklyn to Los Angeles. The taking displaced a neighborhood of low-income Mexican families who made their homes there. Ostensibly, this was done to create new, low-cost housing. But that didn’t happen. The city took the land and underpaid its Mexican owners, going so far as to deny them interest on their meager awards, even though they were plainly entitled to it. Some of them tried to stand their ground but were forcibly removed by L.A. sheriff’s deputies. For our piece telling that story see “The Curse of Chavez Ravine,” http://gideonstrumpet.info/2011/04/

Now, more of that sordid background has come to light in the form of a collection of historical photographs made available by the LA Public Library that you — whether eminent domain junkies, or baseball aficionados — may want to see. If so, go to https://www.scpr.org/news/2017/10/31/77135/remembering-dodger-stadium-when-it-was-chavez-ravi/ It will tell you stuff about the history of Dodger Stadium and the fate of little people who get in the way of a grandiose municipal project that in the name of “public use” takes land from some private property in order to reconvey it to other, more favored folks for the latters’ private gain. To see those photos, copy and paste the above link into your browser.

That’s “public use”?

Postscript: We now know the answer to the question posed by the title of this post, and the answer is “No.” The curse of Chavez Ravine is not being lifted. Not yet anyway. Maybe next year. So stay tuned.