Dispatches From the Environmental Front

ITEM ONE — YOU WIN SOME AND YOU LOSE SOME, EVEN IF YOU ARE ENVIRONMENT -FRIENDLY.  Reducing the dreaded carbon footprint is good because it retards global warming, or climate change, if you prefer. So, burning biomass –biodegradable stuff like wood chips, almond shells and such, instead of fossil fuels like coal — is a good thing. But solar power is good too because it is sustainable — the sun rises every morning and illuminates all those photoelectric arrays, which is good stuff too — it can reduce the utility power bill to a buck a month if you live in a single family home located in a sunny place, as we do in California. Then there is wind power . . .

Ah, but there is a snake in paradise. If you produce sustainable power on a large, commercial scale from biomass, you necessarily compete with solar power. And where there is competition, there are winners and losers. Long story short, we learn from today’s Los Angeles Times — front page, above the fold — that in the competition between biomass-based energy and solar power, the latter is a clear winner. Geoffrey Mohan, Rise of Solar Puts Farms in Bind, L.A. Times,  Jan. 1, 2016, at p. A1. What that means is that that “The state’s biomass energy plants are folding in rapid succession, unable to compete with heavily subsidized solar farms, many of which have sprouted up amidst the fields and orchards of the San Joaquin Valley.” http://www.latimes.com/business/la-fi-biomass-closing-20160101-story.html

So much for good intentions

ITEM TWO — WELCOME TO CALIFORNIA. This one is typical California stuff so expect some unintended humor, and you won’t be disappointed. The same issue of the L.A. Times also informs us that down near San Diego, a Superior Court judge has ruled that the city may not proceed with the construction of a lifeguard station on Mission Bay because its permit has expired. In California construction under such a permit  (issued by the Development Services Department) must start within three years of issuance, and here the permit was issued in 2006. The city could have sought an extension, but it didn’t because, it argued, time was consumed by seeking permission to build from the California Coastal Commission, so it wasn’t just sitting on its okoli (that’s Hawaiian for you-know-what). Not good enough, ruled the judge — the city was bound by its own regulations which required construction start within three years, and that was that. Ricky Young, Time’s Up for Lifeguard Station, l.A. Times, Jan. 1, 2016, at p. B3.

Who sued and why? We’re glad you asked. The neighbors — who else? —  complained that the 900 sq. ft. structure proposed by the city would obstruct their views.*

Much could be said at this point, but we won’t try. We only observe that it took a mere four years to fight and win World War II, but so far nine years has not been enough to start construction on a dinky, 900 sq. ft. life guard station. Self-parody, that’s what it is.



* We hope you’ll forgive us, gentle readers, for being thoroughly confused. Why? Because early in our career we learned the hard way that in California there is no right to view, so owners of land adjacent to yours may build on it even if their construction obstructs your view. See Katcher v. American Saving & Loan, 245 Cal.App.2d 426 (1966). So what were those neighbors complaining about?

A Good Read

We are pleased to announce that the Law Professor Blogs Network has announced its list of the best land-use/eminent domain law review articles in the past 10 years, and have included in that list one of ours: Gideon Kanner, The Public Use Clause: Constitutional Mandate or “Hortatory Fluff”? 33 Pepperdine Law Review 335 (2006). The title says it all, but if you haven’t seen this article before, here is a brief quote from the conclusion:

“The Constitution does not require courts to facilitate predatory behavior by a business-government alliances seeking to increase their cash flow by depriving people of modest means  of their homes. The Public Use clause is not “hortatory fluff.” Its plain meaning deserves judicial respect, no less than other cherished constitutional provisions. Those who seek its protection deserve a better judicial reception than the “thinly disguised contempt”[*] for their vital interests, that is their frequent litigational lot. ” Id. at 383, footnotes omitted.

Go to http://lawprofessors.typepad.com/land_use/2015/12/2015-best-of-land-use-scholarship-part-iii-most-cited-land-use-articles-in-the-last-ten-years-the-mi.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%


*The first quote comes from Justice O’Connor’s dissenting opinion, and the second quote from an unrelated opinion by Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.

Eminent Domain on the Silver Screen

We finally got our hands on a 1960 20th Century Fox movie we had heard about but never saw until now. It’s titled “Wild River,” and it’s a story of TVA’s taking of the last parcel for a dam. It stars Montgomery Clift and Lee Remick. The parcel is an island in a river and is owned by an old widow who is one of those classic “holdouts” who does not want to part with the land on which she was born and on which she means to die.

The romantic interest is provided by a right of way agent (Montgomery Clift) and the old lady’s widowed granddaughter (Lee Remick). The movie has all the stock characters  of such stories: a sympathetic old-lady condemnee, and a warm-hearted, understanding right of way agent who has to acquire her island, even if he sympathizes with her plight. If you want to know how it all turns out, see the movie, which may not be easy because it is not available on Netflix.

For our purposes, we note the usual New Deal propaganda — the movie leaves its viewers with the impression that the TVA will bring unalloyed goodness and its ministrations will transform the flood-prone river valley into a paradise. And never mind that in reality, the TVA’s taking of land for dams on the Tennessee River turned out to be a bonanza for the TVA which became able to sell electricity from its newly-built dams for 50% less than competing private electrical utilities. The demand for TVA’s electricity became so great that it exhausted its hydroelectric generating capacity. Whereupon the TVA built a bunch of coal-fired generating plants which provided power to its customers at a mere 30% discount below existing privately owned utilities. To say nothing of the resulting need for coal for those new fossil-fuel fired power plants, which inspired extensive strip mining leading to environmental degradation that included gross pollution when a giant ash heap collapsed and inundated nearby land.

All in all, not a bad eminent domain saga, particularly if you ignore its propaganda aspects, and the fact that in spite of the law and its promises, the TVA did not pay for all the land it acquired by eminent domain — which we learn from the New York Times.

“Run for the Hills! The Sky Is Falling!” Or Maybe Not.

The November/December 2015 issue of the ABA magazine Probate & Property (at p. 37), provides us with a short review of Prof. John Echeverria’s article The Costs of Koontz, 39 Vt. L. Rev. 537 (2015). In it, it would appear, the professor waxes wroth and regales his readers with the message that the U.S. Supreme Court’s decision in the Koontz case, disapproving of land-use regulators’ misuse of exactions as tools of extortion, whether the exactions are monetary or not, has apparently laid waste to all sorts of good law and now “disrupts separation of powers by deviating from normal doctrines of deference and instead empowers courts to substitute their judgment on land use decisions of elected officials and administrators technical expertise; why it makes a sharp turn away from local control over local matters with the concomitant attributes of political accountability, diversity, and experimentation that come from  local decision making over land use matters; how it degrades our protections for important values like environmental conditions, infrastructure quality and reliability, community character, and property values themselves, . . .” Etc., etc.

Oh dear.

We resist the temptation to deal with this hyperbolic rant point by point, for two reasons. First, if judges’ land-use decisions exemplified by Koontz are as bad as Prof. Echeverria would have it, how come the same judges engaging in review of similar land-use regulations in the context of environmental law are said to work wonders and indeed, do the Lord’s work when they approve (or reject, as the case may be) proposed projects. See e.g., the front page of today’s Los Angeles Times informing us that the California Supreme Court had no trouble rejecting as inadequate a multi-thousand-page environmental impact report on a proposed multi-thousand acre subdivision of the Newhall Land Company seeking to create a new town in northern Los Angeles County. You think maybe that Professor Echeverria will chew out their Lordships for “substituting their judgment on land use decisions of elected officials and administrators [with] technical expertise”? Don’t hold your breath, folks.

Second, our attempt at a detailed reply would be superfluous because a full, proper, and concise response was provided by Justice Ruth Bader Ginsburg, when she wrote in Arkansas Game & Fish Comm’n. v. United States, 133 S.Ct. 511, 521 (2012):

Time and again in Takings Clause cases, the [U.S. Supreme] Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest . . . [But t]he sky did not fall . . .”

Being a Californian, we might also note in passing that back in the 1950s the California Supreme Court, speaking in the notorious People v. Symons case, voiced the concern that if land owners were to be fairly compensated in eminent domain cases for all demonstrable — and indeed, incontestable — losses, an “embargo” would have to be declared on construction of California public projects. But guess what? In 1976 the California legislature repealed the Symons rule, but construction of California public projects has kept going on apace. But that fact did not deter the California Supreme Court which as recently as 1995, still sang its song that “Compensation allowed too liberally will seriously impede, if not stop beneficial public undertakings.” Customer Co. v. Sacramento, 10 Cal.4th 368, 408 (1995).

Bosh and piffle!

Lowball Watch — California

The Marin Independent Journal reports that in a taking of land for a highway, a jury in Marin County (north of San Francisco) awarded the owner $3.2 million on the state’s evidence of $575,000.  Gary Klien, Marin Jury Awards Rancher $3.2 Million for Land Seized in Novato, Nov. 2, 2015.


The Battle of Jersey Shore

After Hurricane Sandy caused damage to beachfront property in New Jersey, the state decided to prevent a recurrence by having the US Corps of Engineers build new dunes along the beach, hoping that they would hold off the surging surf in case another hurricane came along. But some of the owners of beachfront homes oppose this solution because the new dunes would impair or destroy their ocean view. Which sounds reasonable — what’s the point of paying extra for an oceanfront home if you can’t see the ocean?

There is more to it than that. Some of the owners point to existing seawalls, and contend that they are as good as the proposed dunes, so there is no point in replacing them. Now, things get sticky. The Corps is willing to do the job and spend the millions required to do it, but it evidently wants the state to acquire the necessary land for those dunes. Further, the state — personified by Governor Chris Christie  — demands that the affected beachfront homeowners donate (as in gratis) the necessary land, to which the aforementioned owners have replied with a polite variant of “Hell, no!” After the last presidential “debate” we know (from Governor Chrstie himself) that you mustn’t be rude in New Jersey. Just kidding, folks; the guv was the soul of politeness, given the provocation to which he was subjected.

Beyond that, some of the objecting owners have hired a first-class eminent domain lawyer, Tony Della Pelle of McKirdy & Riskin, who has filed an action on their behalf, arguing that the state should retain the seawalls which they have recently reinforced, which they contend, would do the job, preserve their property rights, and coincidentally, save the state a bundle of money.

So the battle has been joined, and we await the results of litigational round one. We wish Tony (whom we happen know and of whom we think highly) the best of luck in this uphill fight. Why uphill? Because when it comes to choosing how to address the problem that is to be solved by the public project, judges just don’t like to listen, much less to rule against the government’s choice of solutions (See the post on Public Necessity which just happens to precede this one).

Anyway, stay tuned because this promises to be an interesting battle, with the last word to be delivered by the appellate courts. The U.S. Supreme Court aleady touched on it in the Renourish the Beach case which turned out to be inconclusive, so maybe their Lordships will want to take another shot at it.

For the whole story, read Patrick McGeehan, Residents Feud Over Building Dune Defenses At Jersey Shore, N.Y. Times, Oct. 31, 2015, at p.A18.


By the way, though the NY Times is silent on this specific point, there is possibly the question involved here whether the new dunes will also create a new stretch of beach, and whether the Corps, or the state would own it. If so, count on another battle as to who owns the new, artificially accreted beach.

Lowball Watch — North Carolina

Word reaches us that in a case in New Hanover County, North Carolina, involving the taking of the property of a building supply company, the state DOT presented evidence of $303,000 as just compensation (and later offered $700,000). The owners demanded $1,000,000 to settle. After trial, the jury verdict came to $2,995,000 — the amount of the owners’ evidence. After adding interest the total award came to $3,426,000. That’s over eleven times DOT’s original offer.

Necessity in Eminent Domain is Weird Stuff

It isn’t every day that an obituary sets one thinking about matters of eminent domain law. But it just happened in the case of the N.Y. Times obituary of judge Richard J. Cardamone of the U.S. Court of Appeals for the Second Circuit. Sam Roberts, Richard Cardamone, Judge Who Doomed Westway Project in Manhattan, Dies at 90, 10/25/15, at p. 23. Judge Cardamone opined in 1985 that the Corps of Engineers’ determination of compliance with environmental laws, and its issuance of a permit for the construction of the Westway highway project along the west side of Manhattan, was defective and would  accordingly have to be vacated and redone.  This was done even though, as the court conceded, “the voiding of the [Corps of Engineers’] permit may result in condemning the Westway project to oblivion.” Which it did.

So much for judicial protestations in eminent domain cases that when it comes to takings of land for public projects, they judges are pretty much limited to rubber-stamping condemnors’ determinations that the proposed taking is just hunky-dory public-use-wise – i.e., it’s “well-nigh conclusive.” And as for determinations of public necessity for the project, the US Supreme Court has told us, once public use is established, necessity for the public project is not a legal requirement under federal law, and the owner-condemnee is not even entitled on a hearing on this subject. As the Supreme Court put in in Bragg v. Weaver, 251 U.S. 57 (1919):

“Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.”

In short, public necessity in eminent domain is weird stuff. Originally, the US Supreme Court justified takings of private property for others’ private use (like, for example, irrigation ditches and mine aerial tramways) on the ground that such uses were a matter of great necessity. As the court put it in Clark v. Nash, 198 U.S. 361, 369-370 (1905), such uses are deemed public “where it is absolutely necessary to enable [the private condemnor] to make any use whatever of his land, . . . which will be valuable only if water can be obtained.” 198 U.S. at 369-370. But a scant dozen years later, came Bragg v. Weaver, 251 U.S. 57, 58 (1919), and there went judicial review of public necessity, with the condemnee not even entitled to a hearing thereon, thereby unwittingly undercutting the holding of Clark v. Nash, which was based on a high level of necessity.

But the idea of taking land (and paying for it) where doing so is unnecessary, is so offensive to civic values that states took ostensible care of that problem by enacting statutes requiring a finding of public necessity before private property could be taken for public use. See e.g., Cal. Code Civ. Proc. § 1245.220. But even so, courts – with the exception of Florida — take the position that the question of necessity may not be inquired into unless there is fraud or bad faith on the part of the condemnor. Before 1976, California went further than that and held in the notorious Chevalier case that necessity is altogether nonjusticiable, even where there is fraud, bad faith or abuse of discretion by the condemnor. But in 1976, the California legislature made necessity justiciable in cases of gross abuse of discretion and bribery.

The reason for the courts’ reluctance to inquire into public necessity is said to be judges’ lack of background in matters of engineering and such, and their policy of unwillingness to “second guess” determinations by the legislative branch of government. For a discussion of this justification, see City of Chicago v. St. John’s United Church, 935 N.E.2d 1158, 1171 (Ill.App. 2010).

So far, so bad. But it gets worse — it’s an altogether different story outside the law of eminent domain. There, as illustrated by Judge Cardamone’s decision in the Westway case, the same judges who proclaim themselves incapable of judging questions of necessity in eminent domain cases, have to problem “second guessing” the expert public project builders in environmental review cases. Why? If you know, perhaps you can share that knowledge with your faithful servant who continues to be puzzled by judges’ professed inability to do in eminent domain cases what they routinely do in environmental review cases.

It’s Only Been 30 Years Since this Redevelopment Project Was Begun. So What’s Your Rush?

We don’t quite know how to do justice to this news item, so we ask you to go to the link below and get the story from the horse’s mouth, as it were. It’s not very long. This is a monument to what’s wrong with redevelopment, so if you have an interest in this subject, have at it.

Note that the article fails to mention how much this caper cost the long-suffering taxpayers of Los Angeles, but hey man, who cares about them?


Proceeding on the theory that one picture is worth a thousand words, this is what the Marlton Square redevelopment project area looks like after 30 years:

Marlton Square