Gideons Trumpet

CLE International announces that its 13th Annual Conference on Eminent Domain will be held at  the Hotel Nikko in San Francisco on November 3-4, 2011. The program is largely California-centered and will cover both developments in the law as well as litigation techniques, appraisal matters, relocation assistance, ethics, and a discussion of redevelopment’s future in California.

For further information and a copy of the program brochure contact CLE International, telephone (800) 873-7130, or cle.com/california.

The Associated Press reports via the Washington Post that in his congressional testimony, Justice Scalia allowed as how there are too many federal judges, deciding too many criminal cases, and that — here it comes — the quality of the federal judiciary is not what it used to be. See Associated Press, Justice Scalia Says Too Many Federal Judges, Too Many Federal Crimes Harm Federal Judiciary, Washington Post, October 5, 2011. Click here .

We agree, with the sorry state of federal eminent domain and inverse condemnation law being respectively Exhibits A and B for Justice Scalia’s concerns. Forty years ago, the late, great Professor Arvo Van Alstyne described the relevant decisional law as “largely characterized by confusing and incompatible result, often explained in conclusionary terminology, circular reasoning, and empty rhetoric.” (44 S. Cal. L. Rev. at 2). Not much has changed for the better and much has grown worse, notably the law of inverse condemnation.

A tip of our hat to the folks running the Nossaman blog for their diligently compiled summary of the parties supporting and opposing the redevelopment litigation now pending on the merits before the California Supreme Court. It’s quite a list. Actually, two lists. Click here.

For the benefit of readers who may not be on top of such doings in la-la land, the California Legislature, faced with imminent insolvency, passed a law recently, requiring that redevelopment agencies pay to the state to make up for the funds they skim off the property tax revenues collected in redevelopment areas, or, failing that, go out of business.

The redevelopment agencies have petitioned the California Supreme Court to review the [state] constitutionality of this legislation, being that an election or two ago, the people adopted by initiative a provision barring transfer of local funds to the state.

Stay tuned.

It is one of the more obnoxious features of American eminent domain law that once land is taken, its [former] owner loses any right to reclaim it when it is put to uses other than the “public use” specified in the eminent domain action by which the condemnor acquired it. We wrote about it a while back; see Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning — Sorry About That, Justice Stevens, 39 The Urban Lawyer 529 (2007).

Out here in California, this sort of stuff is not uncommon. The best known example of this kind of shuffle is Dodger Stadium. It sits on land that was taken by eminent domain for public housing in the 1950s. But that housing was never built, and the land in question, located in Chavez Ravine, was transferred by the City of Los Angeles to the Brooklyn Dodgers to induce them to move from Brooklyn to Los Angeles. If you are interested in this sort of municipal skulduggery, do read the above-cited article which cites other examples. Probably the most egregious case of this sort was Beistline v. City of San Diego, 256 F.2d 421 (9th Cir. 1958). There the owner charged that his property had been taken for redevelopment but instead was resold to General Dynamics for a profit. The court denied relief.

Now we learn that this isn’t how they do it in India. The Hindustan Times reports that over there the Supreme Court of India has held otherwise. See Hindustan Times, Govt Cannot Change Purpose of Acquired Land, October 5, 2011 – click here.

There, The Kamataka State Tourism Development Corporation had acquired land ostensibly for a golf course/resort hotel. But the condemnor lacked the funds necessary for construction of the golf course, so instead, the land was transferred to a private developer who intended to construct group housing and “other corporate housing.” Though if the condemnor did not have a budget for a golf course, he could have straight away gone for indoor putting green, which is quite handy, and could have looked for them at good deals. That idea might have served the purpose, and the land would not have been transferred to the private developer. But when the former owner sued, the court took a dim view of that transfer and held that it was illegal, and that the land would have to be returned to the former owner upon his return of the compensation awarded him when his land was taken. Luckily there are Solutions for Corporate Housing in other reputable companies. For example, if you are looking for corporate housing in the United States, there are various housing solutions for businesses that are interested in transferring their employees to different cities. You can even find corporate housing in Santa Cruz, CA here or New York.

True enough, over here we supposedly have a rule of law that disfavors “pretextual” takings, but the courts mostly talk a good game about that, and actual cases providing relief under such circumstances are few and far between. This is true even in states that have statutes requiring a return of the taken land when it is not put to the public use for which it was ostensibly taken. By an odd coincidence, last week the U.S. Supreme Court turned down a petion for certiorari in a case charging a pretextual taking in Hawaii (if you want to read about that event, click here . )

So it looks like in India, they take such abuses of the power of eminent domain more seriously than we do.

Guess what? Newlondon.patch.com reports that the Yale Urban Design Workshop has come up with proposals for development of the 91-acre vacant tract of land on which the home of Susette Kelo and her neighbors stood. We will spare you going through all the planning babble contained in this effort. Suffice it to say that the report’s main goal is to “move towards a comprehensive design concept for the Fort Trumbull area that anticipates the creation over time of a distinctive mixed-use urban neighborhood, creating economic development opportunities built around historic and scenic resources of the site.” What “resources” of the site? Isn’t “the site” a vacant, weed-overgrown, trash-strewn parcel of land? But that does not seem to deter these folks. “The key additional development would be a resort hotel and conference center . . .”

And when is all that going to happen? We’re glad you asked. “Most of the proposals are projected to be long term developments, not likely to appear for two to 10 years.” So can’t anything be done right away? Of course it can – “The report recommends that some proposals can be implemented  immediately, such as the establishment of the Fort Trumbull Action Committee and Design Review Board and marketing of the peninsula.” Right! When in doubt, form a committee.

We tried hard to find it but nowhere in this dispatch is there any mention of the likely cost of this caper or the source of funding for it. And so it goes.

For the full newlondon.patch story click here .

We just came across a news item from BBC, reporting serious rioting in Bolivia over the proposed construction of a new highway through an indigenous people area. Bolivia Amazon Road Protesters Break Police Blockade, September 2011 – click here .

“Riot police had been blocking the march for several days to preent clashes with communities along the route who support the road project. Indigenous protesters waving flags and brandishing traditional bows and arrows surged through the lines of riot police. One officer was wounded, apparently by an arrow which struck his face.

“The dispute over government plans to build a road through the Isiboro-Secure Indigenous Territory and National Park — known by its Spanish acronym TIPNIS — has sharpley divided opinion.”

And so it goes.

However, we must note that evidently rioting is a national pastime in Bolivia. You don’t believe us? Then go to Google and type in “Rioting in Bolivia.” You’ll get over two million hits. At least we did.

But this time, it appears to be serious. Al Jazeera reports that the Bolivian Minister of Defense has resigned in protest of these events. Click here

“Rioters in the southern Chinese province of Guangdong have besieged government buildings, attacked police officers and overturned SWAT team vehicles during protests this week against seizure of farmland, said officials in Shanwei, a city that skirts the South China Sea not far from Hong Kong.

“. . .[H]undreds of people . . . blocked an important highway while others mobbed the local office of the Communist Party and a police station in the city of Lufeng, injuring a dozen officers.”

So reports the New York Times – Andrew Jacobs, Farmers in China’s South Riot Over Seizure of Land, N.Y. Times, September 24, 2011, at p. A5. Click here .

Evidently, what happens over there is that there are no enforceable private property rights — the local government owns the village land that had been occupied by farmers for generations, and sells it to developers to raise revenue. In the case of Lufeng, the folks in city hall sold some 800 acres to developers “for industrial parks and high-priced housing.”  Hmm. Sounds a little like the Kelo case, doesn’t it? Anyway, the bone of contention is the farmers’ forceful complaint that they haven’t been fairly paid for their land taken in the process. “The proferred compensation per acre, villagers said, has been barely enough to buy a new bed.”

As regular readers of this blog know, this is hardly the first time rioting took place in far-off lands when incensed farmers took umbrage at being mistreated in this fashion, and got physical about it. Events like this have also taken place in Japan and Mexico, as well as China.  Even here, in the good ol’ U.S. of A., there have been physical confrontations in Minnesota where farmers got physical with state troopers when their land was taken for electrical transmission lines. Also, Bernard Frieden and Lynn Sagalyn report in their book Downtown, Inc. – How America Rebuilds Cities, that some of the urban riots in the 1960s were motivated by the inner city folks’ reaction to wholesale displacement of locals by redevelopment projects.

The bottom line of it all is that people are territorial creatures who feel strongly about invasions of their turf, and governments are looking for trouble when they overdo the use of eminent domain for uses that do not meet the test of genuine, as opposd to feigned, public necessity. So far, we have been lucky on that score in this country, but we fear that this may not last. The Kelo case angered the great majority of Americans, and made it clear just how badly American  law went off the tracks when it proclaimed that in the name of “public use,” unoffending private land may be taken for private revenue-generating purposes, in the hope that some of it will trickle down to the community. Which it rarely does because redevelopment deals often include tax breaks for the redevelopers and before it can trickle down, that money has to be used for servicing the TIF bonds that are issued to pay for the whole shebang.

When you add to that the fact that lawful, indigenous occupants of such land are evicted for the sake of grandiose municipal plans that all too often prove to be costly failures that consume millions to no public purpose,  and you couple it with prevailing undercompensation that is part and parcel of American judge-made law of eminent domain, you get a prescription for violence that, so far, we have been spared. But that state of affairs is not something you can count on indefinitely. It all illustrates the wisdom of Justice Holmes, when he observed that “Property is protected [by law] because that answers demands of human nature and therefore takes the place of a fight.” Davis v. Mills, 194 U.S. 451, 457 (1904).

Saving the best for last — well, maybe not the best, but certainly noteworthy — we note in passing that Planetizen, the planners’ blog, features the New York Times report, but whereas the Times headlines these events a “Seizure of Land,” the planners call it a “sale.” Which goes to show that those wonderrful planning folks may not understand the difference between seduction and rape.