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.
Go to https://www.californiaeminentdomainreport.com/

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.

https://www.nytimes.com/2018/03/02/nyregion/jp-morgan-chase-midtown-east-air-rights.html

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.”

https://www.city-journal.org/html/brownout-15828.html

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 https://www.city-journal.org/html/dangerous-development-cape-town-15783.html . 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 www.inversecondemnation.com 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
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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.”

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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 www.inversecondemnation.com and see today’s post. Enjoy!

If at First You Don’t Succeed, Fail, Fail Again

Don’t miss the LA Times story by Angel Jennings, L.A. County Wants to Take Blighted Property, April 23, 2018, at p. B1. It tells the story of a land owner who stands to win our “lucky Pierre” award for being the subject of not one, but two eminent domain actions seeking to take his large plot of land that has been sitting vacant since the 2005 riots, and which — according to its owner — was blighted by the city’s activities, so it became an invitation to homeless folks’ encampments, and generally not what comes to mind when you speak of an area to be redeveloped with a mall, entertainment facilities, a restaurant, etc.

Long story short, the owner actually broke ground 2005, for a project of his own. But nothing came of it. He blames the city for this result. Anyway, nothing came of the city’s intention to take and redevelop the place, because California, in a rare stroke of common sense abolished redevelopment, whereupon the condemnation had to be abandoned (and attorneys’ fees and damages totaling $5.2 million paid to the owner).

Now, starting in 2017, the county filed another condemnation action seeking to do what the city couldn’t, and wants to take the property for assorted public uses like stores, entertainment facilities and — are you ready? — a facility for NASA lectures. The owner is resisting the taking on a variety of grounds, and the fight is on. In the meantime the subject area is known to local cops as “death alley” because of its high homicide rate.

We can’t wait to see how it all turns out. Stay tuned. And do read that lengthy LA Times piece cited above.

Follow up: The blog la.streetsblog.org reports that the Los Angeles Superior Court (trial court) has ruled in favor of the County’s right to take. Sahra Suleiman, County Wins Control of Vermont/Manchester Lots in Superior Court Ruling, April 26, 2018. So the condemnation can now proceed to its next stage which is the determination by a jury of the “just compensation” payable to the owner. We can’t wait.

Other than these hard facts, the just cited post is a classic redevelopment puff piece that holds out the hope of the equivalent of urban sugar plum fairies. And a fine piece of PR BS it is. Among other things it says that the process of eminent domain is subject to “tight constraints” — no, we are not making it up — and in noting how the area was devastated by 1990s riots, it uses the term “unrest.” It doesn’t get any more politically correct than that.

Of course, as the proverb goes, there’s many a slip between the cup and the lip, so what will actually be built on this site, if anything, is yet to be seen. Stay tuned!

George Will Reviews New Movie About the Kelo Eminent Domain Case

We live in an era of the visual, with readership declining and people increasingly getting their information from a screen — mostly a little computer screen, even though big movie screens are still hanging in there. So we were glad to learn that a movie about the wretched Kelo case has been made and is now being distributed. The national columnist George Will has joined in with a column reviewing it (link at the end of this post).

Kelo v. New London was the Connecticut eminent domain case in which the city of New London took an entire lower middle class neighborhood in order to turn it over to a private developer on a long-term lease (for a dollar per year). That developer was supposed to redevelop it into a higher class area of shops, classy condos and a marina, all serving well paid professional employees of a nearby research facility of the Pfizer company, the pharmaceutical biggie. The case eventually wound up in the US Supreme Court which, by a 5 to 4 vote sided with the city, over sharp dissents by Justices O’Connor and Thomas.

However, the project turned out to be a total failure, and the supposedly thoroughly vetted city plans turned out to be so much hot air. After an unblighted 92-acre waterfront neighborhood was destroyed, displacing its unoffending inhabitants, nothing was built on the site. Pfizer, which was to be the beneficiary of the economic revival flowing from the project, exhausted the tax benefits it got from the city, and instead of adding jobs as promised, moved out of New London, lock, stock and barrel. The site of the redevelopment project is now a vacant, trash-strewn wasteland. This caper cost the city and state some $100 million with nothing to show for it, except a tidal wave of popular revulsion that swept the country. The envisioned tax gains turned into losses, thus illustrating the line of the late California Court of Appeal Justice, Macklin Fleming, who once observed that when it comes to redevelopment, the bigger economic pie the project promoters tout as coming to all, turns into pie in the sky.

The movie’s title, like that of the book on which it is based is The Little Pink House
The link to George Will’s review is:
https://www.sltrib.com/opinion/commentary/2018/04/19/george-f-will-case-of-eminent-domain-in-little-pink-house-speaks-truth-to-power/

For a review of this film by Variety, go to:
Film Review: ‘Little Pink House’

Lowball Watch — Pennsylvania

The York Daily Record of April 17, 2018, reports that a York jury awarded $1.25 million for the taking of the old York County Prison (now in private hands), when the York Redevelopment Agency took it by eminent domain. The commissioners (called “Viewers” in Pennsylvania) awarded $65,000, plus $4000 in attorneys fees. But when the case went to trial, the jury awarded $1.25 million, which was affirmed on appeal, as we reported on March 17, 2018. It took the jury only 30 minutes to reach its conclusion.

The redevelopment agency is seeking review by the Pennsylvania Supreme Court which — like most supreme courts — is not required to review the affirmance on the merits. In the meantime, interest on the award is running at the rate of $188 per day. Stay tuned.

Dylan Siegelbaum, As Interest Mounts, RDA Appeals $1.25M Award for Old York County Prison, April 17, 2018. See

https://www.ydr.com/story/news/local/2018/04/17/rda-appeals-eminent-domain-verdict-old-york-county-prison-pennsylvania-supreme-court/525653002/