Gideons Trumpet

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!

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:
http://variety.com/2018/film/reviews/little-pink-house-review-1202758328/

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/

We recommend to our readers that they take a look at a New York Times article Bleak Housing which is a book review of HIGH-RISERS, by Richard Rothstein, appearing in the New York Times Book Section of April 15, 2018, at p. 21. It’s the story of the construction, decline and eventual fall — figuratively and literally — of the Chicago Cabrini-Green public housing project, a massive 20-story apartment building that with time became such a hellhole that it had to be demolished.

We have only read the NY Times book review, but that strikes us as enough. There is ample material there to support the conclusion that the Cabrini-Green project was a cautionary tale of the tragedy that results when good intentions meet unintended side effects, and an illustration of why government projects fail so often. It brings to mind Brendan Behan’s cynical line that “I cannot conceive of a human condition so wretched that the appearance of a policeman couldn’t make worse.” Substitute the word “government functionaries” for “policeman” and you got it, although the police have a good excuse because they are called upon to make split second decisions under often dangerous circumstances, while the city housing functionaries can take their time and benefit from the views of expert advisers.

It seems that in the public housing disaster exemplified by the downfall of Cabrini-Green, for every new idea intended to improve things, there was a counter-idea suggesting a rejection of the first idea and the substitution for it of another one whose features undid all the good that the first idea was intended to bring about, and then some.

And of course, much of the public housing disaster was brought about by the unfortunate behavior of the intended beneficiaries of those public projects. That, however is another sad story that we can’t very well get into here without prolonging this post excessively.

But if you have an interest in American urban affairs, do read that book, or at least the Times’ book review of it. Sad but informative.

Remember Murr v. Wisconsin? Sure you do. Murr was the recent Supreme Court land use/taking decision in which the majority of the U.S. Supreme Court inflicted yet another procedural nightmare on the law of land-use/takings. The court (per Kennedy, J.) did so by creating yet another multi-factor test, this time to determine what is the “larger parcel” in regulatory taking cases.

The facts were simple. The Murrs bought two adjoining parcels of land in the early 1960s. They were bought at different times, and were taxed separately so they were carried on the tax rolls as two separate parcels. The Murrs lived in a cottage they built on one parcel, and kept the other one vacant for future use. Eventually, they decided to build on it but the local regulators had a little surprise for them. Under a local regulation, the Murrs’ two parcels were deemed one, and — relying on the absurd statement in Penn Central to the effect that “takings jurisprudence” does not divide a parcel into segments for the purpose of deciding that a part of it has been taken — denied permission to build on it. Under that rule, when it comes to regulatory takings, it’s either the entire “larger parcel” or nothing at all.* So the Wisconsin regulators, relying on that rule took the position that the Murrs could neither sell the second (vacant) parcel nor build on it. The Murrs deemed that a de facto taking of the second parcels, but to no avail. The US Supreme Court upheld the regulators’ position in Murr v. Wisconsin

But something wonderful happened at this point. The Wisconsin legislature got wind of the Murr decision, and responded with praiseworthy speed. It promptly enacted Senate Substantive Amendment 1, to Senate Bill 387, which among other things repealed the local rules under which the regulators had purported to act. It forbade local land regulators from imposing lot merger requirements on separate lots. For a quick summary of the new legislation see Scott Bauer, Scott Walker Signs Bill Inspired y Western Wisconsin Cabin-Owners’ Court Fight www.Twincities.com, November 27, 2017.

Scott Walker signs bill inspired by western Wisconsin cabin-owners’ court fight

It took the Wisconsin Legislature only five months to rectify the US Supreme Court’s wretched opinion. Nice going.

_________________________________________-
* The reason we think poorly of that statement in the Penn Central opinion is two-fold. First, when the US Supreme Court uttered that line, it cited no authority — no precedent, no treatise, no commentary, no reason, no nothin’ in its support. It was just a naked assertion. Second, what the then-existing law was, held to the contrary — see U.S. v. Grizzard (1911). Besides, as anyone who has tried an eminent domain case knows, in a partial taking case the condemnor must pay not only for the part taken, but also severance damages suffered by the property’s remainder left in the owner’s hands after the taking. So that Penn Central statement about what the “takings jurisprudence” says, stands on feet of clay, or more accurately, no feet at all.

But hey, man. The Supreme Court had the naked power to say so, and it did just that, thereby confusing the law and providing lawyers with much gainful employment.