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.


* 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.

Lowball Watch — Utah

Http://Fox13now.com reports (Mark Green, “Court Affirms Prior Judgment, UDOT Ordered to Pay $15 Million in Eminent Domain Case, 6/24/2016) that after offering a property owner $5.2 million (without severance damages) Utah DOT took 63 acres out of a 350-acre larger parcel) for a highway. After trial, the court awarded $9 million for the part taken, plus $4 million in severance damages, plus about $1.9 in interest, for a total of $15,014,933.


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


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.

Lowball Watch — New Jersey

NJ Advance Media for N.J.com brings the dispatch from Essex County, new Jersey, that a local  jury just awarded a property owner $2.9 million in an eminent domain case. The city of Bloomfield took the owners’ property — a commercial parcel that the owner meant to develop — in order to develop it itself. The taking took place in 2012.

The case went to trial two years later. The city’s appraiser testified to a value of $440,000 and the city argued that the parcel could not be developed. The jury disagreed and brought in a verdict for $2,900,000 — or, 6.5 times the city’s evidence. The owner’s trial counsel was Anthony DellaPelle of McKirdy & Riskin, a law firm in Morristown, New Jersey.

See  http://www.nj.com/essex/index.ssf/2016/06/town_must_pay_29m_for_property_seized_via_eminent.html#incart_river_home


California Choo-Choo (Cont’d.)

We quote without comment from  Los Angeles dispatch regarding a poorly publicized calamity that has befallen the California high-speed “bullet train” project.

“The latest auction in California’s cap-and-trade market for greenhouse gases fell sharply below expectations, as buyers purchased just 2% of the carbon credits whose sale funds a variety of state programs — notably, the proposed high-speed rail project.

“The quarterly auction, conducted May 18 and announced Wednesday, will provide just $10 million for state programs, including $2.5 million for the bullet train. The rail authority had been expecting about $150 million.” Ralph Vartabedian, California Cap-and-trade Auction Falls Far Short, Delivering Blow to State Revenue and Bullet Train Fund, Los Angeles Times, May 25, 2016.


Great Dissent!

If you are a “ripeness” maven who is into the incredible intellectual, doctrinal and moral mess that is the law of ripeness in inverse taking cases, do read the brand new dissenting opinion of Justices Thomas and Kennedy in Arrigoni Enterprises v. Durham, No. 15-631,  578 U.S. ___ (2016) that came down today along with, alas, an order denying certiorari.

Go to http://www.supremecourt.gov/opinions/15pdf/15-631_19m1.pdf  and see for yourself.

What this order and dissent demonstrate to us is that the ripeness mess is not a case of the Supreme Court failiure to understand the problem as we supposed in the past from time to time. It is now clear that no intelligent, English speaking person can possibly read the expository part of this dissent and still suppose that this court-created morass of Kafkaesque procedures, rampant conflicts of decision and outright judicial refusal to deal with an important constitutional issue that affects a fundamental constitutional right has been created inadvertently.

We are supposed to respect the courts because of the importance of their function. But respect has to be earned, and it is difficult to respect the prevailing “ripeness mess.”

Note that the dissent cites with approval a law journal article by Michael Berger and your faithful servant. We are flattered, but that does not change the fact that the law involved here is a mess.

Follow up. For a concise summary of the Thomas-Kennedy dissent, see the analysis of our fellow blogger Robert Thomas on www.inversecondemnation.com

Lowball Watch — Louisiana

Word reaches us that in an eminent domain taking of a parking lot by Louisiana State University for a Medical Center, the offer was $172,000, but after trial the court awarded a total of over $500.000, including attorneys fees, business losses, and future lost profits. The Louisiana Court of Appeal affirmed, and the state Supreme Court denied review, thus making the trial court judgment final. Interest on the award (at 5%) is yet to be calculated.

In an unusual twist, the court also awarded damages for mental anguish suffered by the owner during the ten days of pre-expropriation trespass during which the condemnor removed personal property from the subject property, and cleared and graded the land.

Keep in mind, however, that under the unique provision of the Louisiana Constitution, a condemnee is entitle not just to the fair market value of his land and improvements, but to all damages, “to the full extent of his loss.”

California Choo-Choo (Cont’d.)

Be still, my heart!

An editorial in today’s Los Angeles Times slams the management of our coming “bullet train” because of its planners’ change of plans — another one — under which the first segment of the planned San Francisco to Los Angels, and a bit beyond, bullet train would be built in Northern California while the more difficult segment of the route over the Tehachapi Mountains and on to Los Angeles would come later. “But left unsaid in the  draft 2016 business plan is how exactly the [railroad] authority will get the money to build the bullet train to Southern California.” So the first segment of the bullet train would go only from San Jose to the Central Valley . . .”and the rail line would peter out in some farmland near Shafter, about 20 miles south of Bakersfield.”

“[T]he plan does not explain how the authority will come up with the estimated $43.5 billion needed to construct the rail line from the Central Valley to Los Angeles and ultimately Anaheim, which it has planned to do by 2029.”

For the whole LA Times piece, see Editorial, Who Is Going to Pay for the Bullet Train to L.A., Los Angeles Times, April 17, 2016.

http://www.latimes.com/opinion/editorials/la-ed-0417-high-speed-rail-20160418-story. html

By the way; have you ever been to the farmland 20 miles south of Bakersfield? No? It’s the proverbial middle of nowhere. So take our advice and spare yourself the cost and effort of getting there.