Monthly Archives: May 2010

It’s All Greek to Us

As is our want, every now and then something happens that inspires us to say something in this blog on a topic of importance, that may not necessarily involve eminent domain, or land-use, or for that matter any field of law. So here goes.

We have been reading the dispatches from Europe with increased bafflement. It seems that the Greeks have gone bananas and have spent every drachma they have, and then some, so predictably they are flat broke. So now they face the inevitable prospect of bankruptcy, but they demand that their European neighbors bail them out. Our question is two-fold: (a) why is everybody surprised? and (b) why don’t the other Europeans tell the Greeks the Aesop tale about the ant and the grasshopper? Looks like the Germans are inclined to do so, but so far their government leaders have not been inclined to heed the voice of the Volk, and are beginning to pay the price of their foolishness at the polls.

But wait, it’s not just Greece. The same is true of the other PIIGs, and truth to tell, of the United States, except that we appear to have a stronger economy and therefore more potential customers for our bonds, as well as more  time to fiddle with our finances than the Greeks who, it now turns out, have been cooking their books to conceal the extent of their exploding debt.

 There is a lesson for us in all that, and we would like to believe that at least some among our leaders are taking it all to heart and will do something to mend the ways of our government before we wind up like Greece. Do you suppose?

Follow up: For some excellent commentary on the Greek crisis and its impact, as well as a realistic assessment of what ails Europe, See George Will, European Union: A Coalition of Irresponsibility, Washington Post, May 16, 2010. Go to

Urban Redevelopment – Looking Back at 1964 brings us an article by Steve Lackmeyer (May 2, 2010) looking back at Oklahoma City’s 1964 urban renewal plan by noted architect I. M. Pei and its aftermath. See

“Almost a half century has passed since architect I. M. Pei arrived in Oklahoma City with plans to remake its downtown, and downtown has been a consistent construction zone ever since.”

 “Pei’s plan, which included the demolition of more than 500 buildings, was despised by the city’s locals and outdated in the end and met its demise in the late 1980s.”

 Wikipedia describes these events as follows:  

“As with many other American cities, center city population declined in the 1970s and 80s as families moved to newer housing in nearby suburbs. Urban Renewal projects in the 1970s including the Pei Plan (Oklahoma City) unfortunately removed many older historic structures but then compounded it by failing to spark much new development.”

 And there goes another grand redevelopment vision. That the failed Oklahoma City redevelopment plan was unveiled in 1964 is pretty interesting because that year was the heyday of grandiose redevelopment plans all over America, most of which failed. We recommend that you get ahold of the November 6, 1964 issue of TIME magazine, and check out the cover story, The City: Under the Knife, or All For Their Own Good, at p. 60. It’s a fascinating read for two reasons. First, it embodies the enthusiasm for the bulldozer model of urban redevelopment which was going to give us wonderful, modern cities. As the TIME article concludes: 

“. . . U.S. planners are, and properly should be, thinking in terms of the long future to make the city attractive and stimulating again – creating new neighborhoods, bringing old ones back to life, seeding the streets with sudden green, opening up unexpected views, and giving men room to work and stroll and play and talk. To rediscover, in short, the pleasures of urbanity.” 

Second, the story is accompanied by 11 color photos of various redevelopment projects under construction. So we suggest that you go to a good library and check out those photos in an actual old copy of TIME, since they may not be available on line. 

But things haven’t worked out the way TIME hoped they would, have they? The TIME magazine story discussed redevelopment projects in San Francisco, Hartford, St. Louis, Cleveland, Baltimore and Buffalo, but it focused on Philadelphia. So it may be interesting to see what happened there. As the New York Times reported (Andrew Jacobs, A City Revived, but With Buildings Falling Right and Left, N.Y. Times, Aug. 20, 2000, p. A14), 36 years later, in Philadelphia, in spite of its thriving downtown, old, rotten buildings have been literally falling down in less favored parts of the city. Those are not being redeveloped. The other cities on TIME’s list haven’t succeeded in this effort either.

So much for good intentions, and so much for visions of a glorious urban future brought about at someone else’s expense.

California Redevelopment Agencies Take a $2 Billion Hit

Judge’s Ruling Saves State Budget More Than $2 Billion 

Los Angeles Times, May 4, 2010

The state budget dodged a $2-billion bullet Tuesday when a judge ruled that last year’s shift of funds away from redevelopment agencies to pay for local schools was legal. 

In a 26-page ruling issued Tuesday, Superior Court Judge Lloyd Connelly ruled the state was within its rights to shift the funds last year. The maneuver allowed the state to save more than $1.7 billion in the current budget year and $350 million in the 2010-11 budget year.

State lawmakers have looked to borrow and shift various pots of money as part of the continuing effort to balance the state’s books, which are about $20 billion out of whack. The shifts have been subjects of lawsuits, some of which have ended in rulings that the state acted illegally.

In fact, last year, Connelly ruled a similar taking of redevelopment funds was illegal. That left the state on the hook to repay $350 million. Lawmakers used Connelly’s ruling from that 2009 case to craft a proposal in last year’s budget that would pass legal muster.

A spokeswoman for the California Redevelopment Agency said the group was still reviewing the ruling and discussing what its next move will be.

— Anthony York

Follow up: Stay tuned for the inevitable appeal.

Second follow up. For the coverage of these events by the Sacramanto Bee, see Loretta Kalb, Redevelopment Agencies Turn $1.7 Billion Over to State, May 11, 2010. Go to

What Is (or Isn’t) Bad Faith in Oklahoma?

Much as we are tempted to do so, we refrain from commenting on the following passage from State ex rel. Board of Regents etc. v. McCloskey Brothers, 227 P.3d 133, 148 (Okla. 2009). The court provides no citation of authority for its statement.

“Whether the Regents paid two, three, or four times the market value for any particular property has nothing to do with the issue of bad faith as far as negotiation with the McCloskey Brothers is concerned. As long as the Regents met the minimum constitutional standards for compensation and did not violate any other  state law, there was nothing to to preclude them from paying as much as they wanted for properties, but paying more than market value does not in and of itself constitute bad faith.”

Lowball Watch – New Jersey

When the New Jersey Schools Construction Corporation (NJSCC) set out to acquire the owners’ land, it deposited $326,000. When faced with the owner’s appraisal of $2,250,000, it was born again and offered $1,480,000. The case settled for $1,825,000, or almost six times the amount of the original offer.

And guess what? After NJSCC acquired the subject property and razed the owners’ newly erected building, it realized that it was out of money, so it abandoned its effort to construct the new school. See N.J. Schools Construction Corp. v. Lopez, 990 A.2d 667 (N.J.App.Div. 2010), and don’t miss footnote 8.

Your tax money at work.

Memo to Justice Breyer: A Little Less Symbolism and a Little More Justice, If You Please

Justice Stephen G. Breyer is upset. And who can blame him? His Lordship is bent out of shape because of the recent decision to close the main entrance to the U.S. Supreme Court building, and to require visitors to enter through two secure entrances located at the bottom of and on the sides of those grand marble stairs that lead to the main entrance to the court. According to the New York Times, Justice Breyer’s concern focuses on the inaccessibility of the “… Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under the law.” Adam Liptak, Step Away From the Doors, N.Y. Times, May 4, 2010, at p. A14. 

We find it hard to argue with that, especially the part about that “meaningful access to equal justice under the law,” but the problem is that in the case of American property owners, meaningful access to equal justice under law is not a matter of doors and security arrangements. It’s that by the court’s formulation of fiendishly complex and ultimately deceptive procedures, these folks have been denied access to any kind of justice as far as their federal constitutional rights are concerned.

The court tells us that to ripen their federal claim to just compensation, property owners must first sue in state court, but when they do that, they are told that the state court decision is preclusive and they can never get their claim under the federal constitution heard in federal court. As four concurring Justices put it in the Hotel San Remo case, under this recently minted ripeness regime American property owners cannot get their federal constitutional claims heard on the merits in any court – whether state or federal. For our discussion of this problem go to our post of April 11th, at  

While we agree with Justice Breyer that the symbolism implicit in the closure of the Court’s magnificent main entrance is unfortunate, and represents yet another (though perhaps unavoidable) act of capitulation to terrorists, we are less concerned with the symbolic aspects of it, and more concerned with litigational realities.

As readers of this blog know, the equal justice problem in inverse condemnation law has to do with procedural barriers, not doors, bronze or otherwise. Your faithful servant would cheerfully – well, maybe not so cheerfully — enter the SCOTUS building through the basement, if that were what it takes to get some “equal justice” from their Lordships for our clients whose property is taken without compensation, but who are told that there is no court – neither state nor federal – that can hear their federal constitutional complaint on the merits, and that though trial by jury is their right as held in City of Monterey v. Del Monte Dunes, they can never get one. 

For the entire N.Y. Times story go to  

Another Redevelopment “Triumph”

“Portland has invested $93 million and 10 years in developing the South Waterfront urban renewal area. The result is five shimmering towers that rise between the freeway and the river south of downtown. The John Ross. Atwater Place. The Meriwether. The Ardea. Riva on the Park.”[A]s dusk falls, I wander the streets of South Waterfront. All is quiet. In 1999, Portland Development Commission (PDC), city hall, and Oregon Health and Science University (OHSU) laid plans for South Waterfront, imagining it as a jobs district. Establishment of an urban renewal area, coupling public investment with tax breaks for developers, would create up to 10,000 jobs in Portland’s newest, greenest neighborhood—or so promised the plan.”But 10 years in, it has created only 2,300 jobs and South Waterfront’s dense condo buildings are ringed with retail space for lease. Empty storefronts are gaping abscesses at the feet of the glass and steel towers.”

From Sarah Mirk, We Built This City: Portland’s New $93 Million South Waterfront Neighborhood Has Transit, Tram, Towers — Everything But People, Portlad Mercury, April 29, 2010. For the entire article, go to