Monthly Archives: August 2011

Kelo Aftermath — The Final Indignity

As regular readers of this blog know, the redevelopment project that gave rise to the wretched U.S. Supreme Court decision in Kelo v. New London, never came about. In spite of the city’s boasting about the quality of its plans, nothing was ever built on the Fort Trumbull site from which the city displaced an entire unoffending, well maintained lower middle-class neighborhood. Though the formal taking took place in 2000 and the U.S. Supreme Court gave its approval to it in 2005, the city’s project has been a failure, with 91 acres of waterfront property sitting there empty and overgrown by weeds.

Now, we learn from the local newspaper, The Day, that following the hurricane Irene, the city has designated the Fort Trumbull redevelopment site as a place to dump vegetation debris. For a video of locals dumping that stuff on the site, click here.

Connecticut taxpayers have thus been soaked tens of millions of dollars, not just for nothing, but for making things worse — for transforming a nice local neighborhood into a dump.


It isn’t every day that we see a manifestation of the proverb counseling that you should be careful what you wish for because you may get it. But here is one such situation writ large. You may recall our post of July 15, 2011, (click here) concerning the aborted “Carmageddon” — a gigantic Los Angeles area-wide traffic jam that was feared as a consequence of the replacement of a bridge over the 405 Freeway that had to be shut down for two days as part of a freeway widening project. But the jam did not materialize during the bridge demolition, thanks to good work of the freeway builders and  the forbearance of Los Angeles drivers who stayed away from the site during the weekend it took to demolish one half of the old bridge, narrowing it down from four to two lanes. Now, we have to face the consequences of the local NIMBYs’ wishes. See Martha Groves, A Hard Drive on Mulholland, L.A. Times, August 29, 2011 – click here.

It seems that orginally the freeway builders wanted to build a new bridge first, and then demolish the old one. But that was not to the liking of local NIMBYs who demanded that their amateurish “plan” be followed instead — first, demolish the old bridge in stages, and then build the new one, also in stages. So, worried by the prospects of interminable project delays caused by a NIMBY lawsuit raising all sorts of environmental concerns that everybody has a right to litigate in California, the freeway builders caved in and said to the NIMBYs “Have it your way.” This meant that one half of the old bridge would be demolished first (constricting it to two lanes), and to facilitate traffic flow the remaining roads would also have to be narrowed, resulting in monumental traffic jams along Mulholland Drive as daily commuters and parents of children attending several local schools find themselves crawling along the narrowed road.  In the words of the project’s  “community relations officer,” as quoted by the Times:

“[T]he situation could have been avoided had neighborhood groups not vetoed an alternative during the run-up to construction. The two agencies [responsible for the project]  in February proposed to reduce congestion by building  a new, realigned bridge before tearing down the old one. That would have kept the Mulholland bridge at four lanes rather than two.

“Although city and county leaders supported the plan as more efficient and less costly, some property owners opposed it, arguing that the design was not in keeping with with Mulholland’s rustic character. They also complained that the officials had not  presented enough environmental data.

“Under pressure to complete the project by 2013, transportation officials reverted to the idea of demolishing and rebuilding half of the bridge at a time over the next two years.”

Now it turns out that in addition to being a favored commuting route over the Sepulveda Pass as it crosses the Santa Monica Mountains (linking the San Fernando Valley with the West Side of Los Angeles), that bridge and the road  that crosses it also serves some nine private schools, so their parents’ daily trip to drop the kids at school now takes 50 minutes to cover a couple of miles, as cars wend their way slowly “down two teeny little lanes,” as one unhappy mother put it.

Just how all that benefits the environment is not clear to your faithful servant who is convinced that the NIMBYs’ familiar lust for power and their desire to tell everybody how to conduct their affairs, blinded them to their own self-interest, and motivated them to play amateur engineers. If so — and it does so appear — this is a case of poetic justice. Serves ’em right!



Lowball Watch – California

We just got our hands on a copy of the stipulated judgment in condemnation, in County of San Diego v. Ryan Companies, San Diego Superior Court, Case No. 37-2010-00092681-CU-EI-CTL, judgment filed August 18, 2011, awarding the condemnee-owners compensation in the amount of $1,701,325.

The judgment reflects the fact that the County’s original deposit into court was $25,000, so according to our calculator, the stipulated award comes to 68 times the county’s deposit. And note well that this was not a case of the County “fighting the good fight” and losing only after advancing its honest opinion of value. No folks, this was a stipulated judgment — in the end the county agreed that its offer was an attempt at gross undercompensation.

Detroit’s Decline and Fall – Once More With Feeling

Just when you think that Detroit (or more accurately, what’s left of it) can’t sink any lower than it has, something comes along to prove you wrong. The August 23, 2011 issue of the  Detroit News reports the latest calamity, See Darren A. Nichols, Squatter Problem Balloons in Detroit. For the entire article, click here.

It seems that there are over 100,000 vacant properties in Detroit, so unsurprisingly, enterprising squatters are breaking and moving into those that appeal to them. Last year the city received 100 complaints about squatting. Now, the rate is up to 300, and the city has neither the resources nor the inclination to police the situation.

Efforts to evict the squatters are ineffective for two reasons. If you are a put-upon neighbor subjected to the squatters’ misbehavior, and you call the cops, more often than not  they only tell the complainants (usually neighbors of the illegally occupied structure) that there is no proof that the putative squatters are not the owners. The cops are in no position to conduct curbstone quiet title actions and decide who is legally in the right. This is a real problem because the record owners of many of these houses have moved out a long time ago, or are gone because they have been foreclosed on.  And so, the poor neighbors subjected to all sorts of obnoxious behavior by the squatters in the first situation can do nothing because there is no one around to establish an ownership interest that is adverse to the squatters’. And in the second situation title is in the lender (often a bank) that has not lodged a complaint and couldn’t care less about cleaning up the neighborhood.

Naturally, if you are an unfortunate neighbor of one of  these houses that are occupied by squatters, you have no standing to sue them because you are not the owner of the occupied property. Besides, local laws are so tenant and squatter-friendly that evictions are difficult and costly, and even if you sue for nuisance, the squatters can just melt into the night and take up residence in some other vacant home. And they are judgment-proof in any event. So what’s the point of suing them for nuisance?

As all that is going on, the bien pensant planning folks talk about converting Detroit into farms. Yeah. Right. In Mark Steyn’s immortal words, maybe they can graze Holsteins between crack houses.

So what does all that have to do with eminent domain? Allow us to remind you that Detroit was a pioneer in the use of eminent domain for urban redevelopment purposes. Among its other excesses,  it destroyed the Poletown neighborhood and drove out its lower middle-class inhabitants to provide room for a General Motors Cadillac factory. Of course, GM never lived up to its employment projections and never came close to the 6000 planned jobs it used in justification of this caper. It was lucky to reach one-third to one-half of that number. And in the long run GM went bankrupt anyway. Ditto for Chrysler which was also the beneficiary of such municipal largesse.

And what was the tab for all that? Oh, some $200,000,000 in public funds. GM got a sweetheart deal and a big tax break – the public in whose name this taking occurred, got screwed. As we are fond of saying: Your tax money at work.

And the Poletown affair was only one event in Detroit’s chain of eminent domain abuses, such as the Cassesse case and the Foster v. Detoit federal litigation that pioneered relief for property owners subjected to precondemnation blight that ensued when the city announced its intention to condemn the targeted properties, but then delayed interminably or harassed the owners in an effort to lower their properties’ market value.




Mass Arrests in White House Protest Over Use of Eminent Domain For Canadian Oil Pipeline

We are kind of surprised that this news item has not received the attention it deserves in the general press, but according to the Huffington Post of August 23rd, it appears that 126 people protesting in front of the White House, have been arrested. They were protesting the large-scale eminent domain takings for a pipeline right-of-way by TransCanada XL pipeline, running across the United States, from tar sands deposits in Canada to Gulf Coast refineries.  (Lucia Graves, Keystone XL Pipeline Arrests Mount As Climate Activists Push Obama, HuffingtonPost, August 23, 2011)

While protests against eminent domain takings are not news, news of mass arrests accompanying them, certainly are — at least in this country. The controversy over this particular right-of-way has been simmering in Montana and Nebraska, but this is the first time we have seen it spread to Washington, D.C. and the first news of mass arrests of protesters.

Chances are, this is not the end of this controversy, so keep an eye out for further news.

Follow up. About four days after the HuffingtonPost story, the nation’s journalistic biggies have come alive. Today’s New York Times has a front-page story on this subject (John M. Broder and Clifford Kraus, An Oil Pipeline From Canada Wins Support, N.Y. Times, August 27, 2011, p. A1) — click here. Buried in it is the terse mention of the fact that 400 protesters were arrested, suggesting that the HuffingtonPost figure of 126 may be understated. Why the NY Times is playing down news of these arrrests — as it obviously is — is not clear to us.

Also, today’s Wall Street Journal comments editorially on the pipeline and the environmentalists’ opposition to it, but save for noting in passing that environmentalists feel the Obama administration has betrayed them, and that this has led to protests and arrests in front of the White House, it provides no figures on how many protesters were arrested. Editorial, The Politics of a Pipeline, Wall St. Jour., Aug 27-28/2011, at p. A12.

Then there is The Nation which reports that only 70 “activists” have been arrested. Click here. So maybe we better reserve judgment on that one, and ponder the verity that you can’t believe everything you read in newspapers.

Did You Know that There Are Legal Pariahs in American Law?

Thanks to our colleague on from whom we learn that once again, a brave soul is petitioning the U. S. Supreme Court for certiorari on the wretched issue of remefies for uncompensated takings. The case is Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16 (1st Cir. 2011). It’s another one of those wretched cases in which the U.S. Court of Appeals denied a property owner the right to seek judicial review of an unconstitutional taking of property, on the grounds that he should have sought relief in state courts — a requirement that is not imposed on any other type of American plaintiff seeking vindication of his or her federal constitutional rights.

We hope for the best, given the importance of this issue. But given the U.S. Supreme Court’s recent dismissive  indifference to people’s rights under the Takings Clause of the 5th Amendment, we are not holding our breath.

Lowball Watch – Maine

The Forecaster newspaper reports an eminent domain award that is 150 times the city’s offer, though the figures indicate a much higher multiplier. Randy Billings, Court Cuts $100K From Portland’s Debt to Waterfront Owner, The Forecaster, August 24, 2011. The article is none too clear on the arithmetic of this case, and focuses primarily on the trial judge’s reduction of accrued prejudgment interest. Evidently, in Maine interest runs from the filing of the eminent domain lawsuit, but here the judge ordered that interest run only from the time the Maine Supreme Court upheld the city’s right to take a railroad easement from a waterfront property owner.

The city paid or deposited $5000, but the jury awarded $795,000, including $200,000 in prejudgment interest. But the judge reduced the award of interest from six years’ worth to 3.5 years, thus saving the city $96,000, according to the city’s attorney. What we find confusing about this article is that the city’s attorney is also quoted as saying that the city’s cost of that easement acquisition came to $870,000. Go figure.

But any way you slice it, the city started out at $5000, but wound up paying $870,000, which according to our calculator comes to 175 times the city’s deposit.

For the whole Forecaster story click here — If you can figure how these figures are consistent, please let us know.

The Curse of the Courtesy Sandwich Shop (Take 2)

Remember our comments about the outrageous and uncompensated destruction of the Courtesy Sandwich Shop in lower Manhattan to make room for the World Trade Center of blessed memory? Of course you do. But if not, go to our post Curse of the Courtesy Sandwich Shop, August 10, 2009. It’s all there.

That was the story of how the New York & New Jersey Port Authority took by eminent domain some 13+ blocks of commercial land for the site of the World Trade Center, and in the process destroyed the business of the Courtesy Sandwich Shop without compensation. The justification was that the new WTC would be a “public use” because it would be devoted to use by government offices and enterprises devoted to foreign trade. As it turned out, all that was false. Government entities and businesses of that sort could not begin to fill those two huge, 100-plus story towers, and the dumping of all that newly available office rental space on the Manhattan market proved to be an economic disaster from which it took the city years to recover. So in time, the WTC became just another honkin’ big New York high rise skyscraper renting space to all comers like any other landlord.

Now, some ten years after 9/11, they are still building a new state-of-the-art train station, and a replacement building (known as 1 World Trade Center) on that site,  with a projected cost of $11 billion instead of the originally estimated $3.3 billion. Predictably, there isn’t that kind of money around, so the Port Authority (contrary to its earlier representations) proposes to raise tolls on the George Washington Bridge and the Lincoln Tunnel, so that Joe Commuter who goes to work by car will have to pony up $62.50 per week. Click here.

But the supporters of the project claim that things are looking up and that the publishing giant Conde Nast has agreed to be the anchor tenant. Sounds good, eh? Not really. The Times discloses that to entice Conde Nast to make that move, the city is going to charge it rent that is less than half the break-even cost of the 0ne-million square feet it will occupy.  How $weet it is.

And this is nothing new in New York. For a fuller list of similarly humongous handouts to favored, large  New York businesses, see 4 Albany Governmewnt Law Review 38, at pp. 64-65, footnote 109. That list includes the New York Times, CBS, Reuters, NBC, ABC, McGraw Hill, Viacom, and Hearst, as well as finacial giants like Goldman Sachs ($850 million), JPMorgan Chase ($240 million), A.I.G., Credit Suisse, Bear Stearns, Merrill Lynch, Bank of America, Citicorp, and Morgan Stanley. The source of this information is Jim Dwyer, Companies We Keep, and Pay For, N.Y. Times, May 16, 2010, at p. MB1.

Yor tax money at work, New Yorkers.

It’s ALI-ABA Land Use Institute Time

We are off to Boston to speak at the 27th annual ALI-ABA Land Use Institute. ALI-ABA stands for American Law Institute – American Bar Association Committee for Continuing Legal Education. It has been a consistently good program that was started years ago by the late Dick Babcock of Chicago, and has been attracting land-use practitioners and planners ever since. If you want to learn more about this program, contact ALI-ABA, 4025 Chestnut St., Philadelphia PA 19104, telephone (800) CLE-NEWS. Or go to

So if there is a few days’ break in the posts of this blog, don’t go away. As our former California Governator put it in one of his movies, “I’ll be back.” So stay tuned.

How Do You Say “NIMBY” In German?

Herewith, for your amusement, is the pertinent quote from Wikipedia (under the heading of Saint Florian):

“The ‘Florian Principle’ (known in German language areas as ‘Sankt-Florians-Prinzip’) is named after a somewhat ironic ‘prayer’ to Saint Florian: ‘O heiliger Sankt Florian, verschon’ mein Haus, zünd’ and’re an‘, translating to ‘O holy Saint Florian, spare my house, kindle others’. This saying is used in German much like the English ‘not in my back yard’, when the speaker wants to point out that some person tries to get out of an unpleasant situation by an action that will put others in that very same situation.”