Monthly Archives: June 2009

Damn Those Dams

         As we noted in earlier blogs ( ) there is a movement on, seeking to breach hydroelectric power generating dams in the Pacific Northwest in order to make life easier for salmon as they migrate upstream to reproduce.

         Now, another part of the country is being heard from. There is now a move afoot to breach dams and levees in Louisiana. It seems that those dams — and there are some 8000 of them in the drainage basin of the Mississippi River — are impeding the flow of sediment that is necessary to replenish the Mississippi Delta marshes. But there is a potential problem with breaching those dams. The sediment trapped by them contains agricultural chemicals and other pollutants that may worsen the deteriorating water quality of the Mississippi. On the third hand, so to speak, if that nutrient-rich sediment makes it into the Louisiana marshes, it might stimulate plant growth, and that would contribute to marsh health.

         So it looks like one of those situations in which nobody really knows what to do. Read all about it in Cornelia Dean, Dams Are Thwarting Louisiana Marsh Restoration, Study Says, N.Y. Times, June 29, 2009, at p. A13.

Too Many Sports Arenas

          From time to time, we have blogged about the problems of municipal waste of taxpayers’ money which cities have been squandering in their efforts to attract and support sports arenas. It appears that now the predictable is happening. Charles V. Bagli, As Arenas Sprout, a Scramble to Keep Them Filled, N.Y. Times, June 29, 2009, reports that there are just plumb too many arenas, even for a big market like New York:

           “In the inaugural season for the new ballpark for the New York Yankees and Mets, the teams have been embarrassed by television shots showing vast areas of premium seats going unsold.

          “But those who study sporting facilities say empty seats may become even more commonplace here, as New York faces a glut of sport arenas.

          “Five major complexes — four existing and one planned — will soon be slugging it out within an area 30 miles wide.

          “At least two of the existing arenas already lose money and experts say further casualties are almost guaranteed.”

         And in Brooklyn, Forest City Ratner is rushing the start of construction of yet another sports facility, an arena for the Nets, which, if successful, will add another sports arena to the glut.

          “By the time the arena in Brooklyn, which will be called Barclays Center, is built, there will be a total of nearly 100,000 seats to fill, 365 days a year.”

         Moreover, this problem is not confined to New York. Bagli reports that similar difficulties are unfolding in New Jersey, Arizona, Minnesota, and Ohio. And given that the current recession is not disappearing, it looks like these folks are in for — shall we say? — interesting days. And so are the taxpayers who, lest you forget, are subsidizing this whole shebang with your tax dollars.

Atlantic Yards Project — More Problems

         As an update to our post of June 6, 2009, Another Bump in the Road to Atlantic Yards, check out today’s New York Times, Atlantic Yards Project Enters a Crucial Period, by Charles V. Bagli, June 25, 2009, at p. A19.

         It reports that the redeveloper is experiencing problems raising the funds necessary to complete the project as planned.

         “Critics, and even some supporters, have complained that the Atlantic Yards project’s public benefits are disappearing before the construction even starts. Much of the housing at Atlantic Yards, including 2,250 units for moderate- and middle-income tenants, has been delayed, along with the creation of eight acres of open space.”

No kidding, fellows. Don’t that beat all? 

         The redeveloper, Bruce Ratner, is quoted as offering the excuse that “Delays due to litigation and a difficult economic environment required the approved changes.” But isn’t that how the development cookie crumbles? Surely, Mr Ratner did not expect that the property owners whose land he covets for his development would quietly go along with his vision, and offer no resistance to being kicked out of their homes and businesses for his benefit, without full compensation for all their economic damages. So litigation of this type — over proposed development — is par for the course; as the California Supreme Court once explained, it it is only to be expected as “normal” delay.

Dickens Was a Piker!

          Most people are aware that in his book BLEAK HO– USE, Charles Dickens described an endless litigation that wended its way throught the British courts on and on to no purpose, bringing only resentment and ruin in its wake. Well folks, we now have a rival to that story. Check out the site of our fellow blogger, Robert Thomas, Suffice it to say that it concerns the taking of water rights. Or something like that.

          We’d give you a thumbnail sketch of the controversy that Thomas describes, but our thumbnails aren’t big enough, to say nothing of our meager intellectual resources. So check out that blog, specifically the post enttitled Takings and the Hawaii Water Rights Backstory In Stop the Beach Renourishment:

          Suffice it to say that this litigation started in 1959, and technically, it is still going, though the conditions that gave rise to it to begin with, no longer exist and neither do the parties who started it all.

          The moral of it? Ambrose Bierce was right when, in his DEVIL’S DICTIONARY, he defined “litigation” as a process which one enters as a pig, and from which one emerges as a sausage.

          All this reminds us that in the bygone days, when your faithful servant taught first-year property law, he was fond of stresing the importance of using proper legal terminology, impressing on the tads that had they been studying law in Hawaii, they would have had to understand things like the Hawaii Supreme Court’s pronouncement in one of the cases comprising this litigation, that: ” Where one half of an ili kupono was maheled to a konohiki and the other half was retained by the King as crown land, a conveyance of the King’s half to the government, and the government’s subsequent conveyance does not make the whole of the ili an ili kupono.”

Don’t you just love those exotic Sandwich Islanders?  

Another Government Lowball Hits the Dirt

A local newspaper reports that in Baldwin Park, California, the state DOT (known aroud here as CalTrans) set out to acquire the site of an RV dealership  to widen a freeway. The initial offer was $953,000 which the owners refused, and rightly so because after CalTrans filed a condemnation action to take their property, it upped its offer to $3.86 million. This was for a business that employed 167 people and grossed $61 million last year.

But the case never went to trial. Faced with having to try the case in court, CalTrans threw in the towel and settled for $8 million, which by our calculator comes to over eight times CalTrans’ initial offer. And so it goes. You can read this story in Jennifer McLain, Caltrans to Pay $8 Million in Settlement With RV Dealer, San Gabriel Valley Tribune, June 13, 2009.

The moral of this story is not that the owners’ case was better than the state’s, or that CalTrans fought the goood fight and lost. Rather it is that the state made the lowball offer which evidently it knew was inadequate (because it raised it by four times when first faced with having to defend it in court) and eventually agreed to pay over eight times its original offer.

The smiling lawyer for the owners is John Murphy of the Orange County (California) office of Luce Forward.

Trust Lexis, But Verify the Information


         To someone like your faithful servant, who received an engineering education in the 1950s, modern technology is an unending intellectual feast. The idea of getting whatever information one needs instantly, just by clicking a mouse or pressing a key never ceases to amaze us. It’s science fiction come true. And few things in that regard are as high on our hit parade than Lexis. No, we have nothing against Westlaw; it’s just that we got started on Lexis and have grown accustomed to it.

          Back in the old days, doing legal research meant burying oneself in a law library for hours on end in the hope of finding that right authority or quote. Now, it happens in minutes, if not seconds. Wow! And one of the things that we have come to love is Lexis’ practice of providing a concise case summary at the beginning of each case, so we can tell at a glance what the putatively relevant research result is about, and how likely it is to serve its function of providing information the researcher seeks.

          But alas, as Zsa Zsa Gabor put it, “nobody’s purrfect, dollink,” and we have just discovered that those case summaries can be something less than accurate. Case in point, the landmark California case of Klopping v. City of Whittier, 8 Cal.3d 39, 500 P.2d 1345 (1972). The Klopping case was a precedent-setting legal blockbuster. It established two new substantive rules: first, that when a government entity announces its intention to condemn particular properties or areas, and as a result, tenants occupying those properties leave, maintenance of the targeted areas declines, and the value of the targeted properties plummets (a.k.a. precondemnation blight), the condemnor cannot just use the depressed “fair market value” as the measure of compensation, when it eventually gets around to the taking. Instead, the owners are entitled to the fair market value as it would have been without the condemnor’s value-depressing activities. Second, Klopping also held that when the would-be condemnor delays acquisition of the targeted property for an unreasonably long time, or otherwise acts unreasonably, and this causes a serious economic harm to the owners, they need not await the eventual filing of the condemnation action, but may instead file an inverse condemnation action of their own in which they can recover just compensation for their property when the condemnor’s activities amount to a de facto taking, and damages for rents lost during the delay. On a procedural point, Klopping also held that when the subject property has been thus subjected to government-caused precondemnation blight, the owner may assert his right to be paid for the blight-induced losses by way of his answer in the condemnation case when it is finally filed. Actually, the owner must thus claim those damages this way, or lose the right to recover them in a separate action. If you are interested in the topic of precondemnation blight, we recommend that you check out our oldie but goodie, entitled Condemnation Blight: Just How Just Is Just Compensation? 48 Notre Dame Lawyer 765 (1973) (the Notre Dame Lawyer is now called the Notre Dame Law Review)

         In Klopping, the City of Whittier commenced condemnation proceedings to take the subject properties for a parking lot. But it ran into problems selling its bonds, so it dismissed the condemnation action but in doing so it formally resolved that it would revive the condemnation when it got its financial house in order. In the meantime, as all that went on, the affected owners’ properties became pariahs in the local market. One owner actually lost his commercial building by foreclosure when its tenants left and the rent stream dried up. The court held that these losses were recoverable, which was a major development in eminent domain law.

But guess how Lexis describes that case? Ready? Here goes:

 “OVERVIEW: Lost rent claim was barred by res judicata because it was not brought in prior eminent domain action, but other rent claims were allowed to proceed against city in inverse condemnation where property was lost by private action and not eminent domain.” 

         That statement is not untrue, but it misses the major substantive thrust of the Klopping holding. By placing emphasis on the court’s procedural afterthought as if it were the core holding, it completely misses the major, first-impression doctrinal point made by the Klopping case. We know all that well, because your faithful servant was counsel for the Klopping condemnees in the California Supreme Court.

          So the moral of this story is that modern technology may be great, but old-fashioned verification of the accuracy of the information provided by it remains the sine qua non of effective research.

25th Annual ALI-ABA Land Use Institute — Mark Your Calendars

         The 25th annual American Law Institute – American Bar Association (ALI-ABA) Land Use Institute will take place on August 26-29, 2009 at the Westin Gaslamp Quarter Hotel in San Diego. As usual, the program will cover a variety of topics on land use regulation, and eminent domain. This is a well regarded program that is attended by lawyers, planners, and zoning officials. Extensive program materials are provided to attendees.

         To obtain the brochure with all the details, contact ALI-ABA, 4025 Chestnut Street, Philadelphia, PA 19104, telephone 800-CLE-NEWS.

Of Dams, Fish and Wind

         It turns out that the conflict between hydroelectric dams and salmon (or at least environmentalits who purport to speak for the salmon) is a bit more complicated that what we described in our post What Shall It Be, Clean, Sustainable Power or Lox and Bagels? May 20, 2009. See It turns out that hydroelectric dams are also favored by generators of wind power. The problem with the latter is that sometimes the wind does not blow, or at least it does not blow hard enough to generate enough power to satisfy the needs of the moment. So the wind turbine operators want those dams to stay put and operating, so their output can fill the power needs during the downswings in wind power. They worry that if those dams are breached, as the environmentalists would have it, during lulls in the wind, power consumers may wind up suckin’ wind, if you’ll pardon the pun, and turn to fossil fuel power plants.

         And let’s not forget the farmers who are looking kindly on wind turbines erected on their land, that provide them with supplemental income. They want the windmills to operate, and the wind turbine operators can do that on a large scale only if they can rely on hydroelectric power to provide clean energy when the wind isn’t blowing.

          Anyway, you can read all about it in Kate Galbraith, Wind, Water and Fish, N.Y. Times, June 12, 2009, at p. B1.