Monthly Archives: September 2011

Lowball Watch – Texas

We just came across a 2009 opinion of the Texas Court of Appeals that reveals the following. In a part-take condemnation action for a highway project, the parties agreed that the remainder was worth $276,000 in the “after condition.” The state contended there was no damage to the remainder and the owners were entitled to $28,750 for the part taken, as total compensation.  The jury found that the “before” value of the entire property was $579,348, and so, after deducting the agreed-on “after” value, the award to the owners came to $303,178. The Texas Court of Appeals affirmed.

By our calculator, the award comes to over 10 times the amount of the state’s contention of value.

You can find the opinion at State v. Petroupolos, 2009 WL 1161017 (Tex.App.-Austin)).

Lowball Watch – Massachusetts

The Worcester Telegram & Gazette reports that the Massacusetts Court of Appeals recently reversed the judgment of a trial court that had refused to award compound interest in an eminent domain case and awarded only simple interest. The appellate court disagreed.

This is a story of poetic justice. Owners of lakeshore properties in Leicester formed the Cedar Meadow Lake Watershed District  (whose purpose was evidently to acquire the lake). After failing to strike a deal with the lake owner (Central Water District) the Cedar Meadow Lake folks filed an eminent domain action to take the lake, offering $87,200. But the trial court awarded $1,157,634. Now, there will be an additional payment of increased interest — compound instead of simple interest — adding another $512,000 in interest. Why so much? Because it took 12 years of litigation to resolve this controversy, and time, as they say, is money.

So it appears that the eventual award was over 13 times the condemnor’s original offer.

You can find the Appeals Court opinion reported as Central Water District Associates v. Cedar Meadow Lake Watershed Dist. , 2011 WL 4424819 (Mass.App.Ct.))

. . . And In Bolivia Too

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

Lowball Watch – Illinois

The (Illinois) Post Tribune reports a settlement of a controversy between the Cedar Lake Ventures, LLC, the owner of a pond, and the town council of Cedart Lake. In 2007, Cedar Lake deposited $73,000 for the taking of a 2.97-acre part of a 15.5-acre pond. Now the parties have settled for $423,441 (including costs and fees incurred by the owner). Which comes to nearly six times the original offer. Carrie Napoleon, Cedar Lake Agrees to $400,000 Settlement Over Retention Pond, Post-Tribune, September 27, 2011. Click here.

Eminent Domain in China – The Fire This Time

“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.

It’s Baaack!

Remember that nototrious Alaska “bridge to nowhere?” Of course you do. But if you do, you probably think it died of sheer embarrasment when it became known that Congress popped some $250,000,000 on a proposed bridge nearly the size of the Golden Gate Bridge, that would connect  Anchorage with Matanuska-Susitna whose tiny population would not justify a bridge anywhere near that size, whose cost, according to a financial analyst quoted in this story, could exceed $4 billion. With a “b.”

Well, folks, it’s back. The Washington Post reports that  there is something called KABATA which stands for Knik Arm Bridge and Toll Authority up there, and it’s hard at work to get that bridge built. How is that possible, you ask. Didn’t Congress eventually cancel the appropriation for that “bridge to nowhere?” Well, yes. Sort of. But not really. Explains the Post: “Though earmarks for the bridge were eliminated some of the redirected federal funds have still made their way to the bridge authority for research and promotion.” Your tax money at work.

For the whole incredible (though evidently true) news story go to Steven Mufson, Alaska “Bridge to Nowhere,” the Knik Arm Crossing Project, Still on the Table, Washington Post, September 25, 2011 – click here .

Shocking News from Colorado: There’s No Such Thing as a Free Lunch, the planner’s blog, brings us the news that Colorado has made a remarkable discovery. Whereas the mountain folks, moved as they were by the best environmentalist intentions, decreed that electric cars were Good and would therefore be provided with free electrical charging stations accessible to the public, they have now discovered that – zounds! – a charging station costs $16,000 to construct, which is “quadruple what was expected.” Only two charging stations have been built. But Boulder, still plans to build 20 stations instead the 40 they had originally planned, and will charge drivers using them $1 per hour to plug in.

The last word comes from a tech nabob from Toyota, who understands how the first law of thermodynamics works, and who is quoted as saying that free recharging options are not going to last. “Too expensive. Electricity is going to get more expensive for everybody.”

For the whole story click here

Program on Redevelopment – Mark Your Calendar

MORR – Municipal Officials for Redevelopment Reform — is putting on its annual program on redevelopment on October 22, 2011, at 8:30-4:00 at the Crown Plaza Hotel, San Francisco Airport. This should be an interesting program because the fate of redevelopment agencies in California is currently  in the balance, with the state supreme court now considering the validity of legislation requiring redevelopment agencies to make payments to the cities in which they operate, or go out of business.

For further information, and to register, contact Municipal Officials for Redevelopment Reform, 1918 W. Baker Ave., Fullerton CA 92833, telephone (714) 871-9756.

High Speed Rail (Cont’d.)

We have wondered from time to time why the controversy over construction of a high-speed line in California, planned to run from San Diego to San Francisco, has not included dispatches about bazillions of lawsuits being filed to stop or modify it. We need not have wondered. The problem is not an absence of lawsuits, but rather their abundance. The problem appears to be that this is a subject that has been greatly underreported. Why? Beats us.

It turns out that there are lawsuits aplenty being filed and more of them are being prepared for filing. They cover everything from routing of high-speed rail tracks to the railroad’s impact. Stephanie Rice of the San Francisco Chronicle, tells the story. Click here. And what a story it is.  Since our purpose here is to keep our readers informed rather than inundated, we won’t go through them all, but you can get the story at Stephanie Rice, High-Speed Rail: Lawsuits Could Delay, Kill Plans, SF Gate, September 19, 2011.

It looks like this is going to be another “full employment Act” for California  lawyers. But then again, when it comes to California land-use, particularly land-use involving major projects, what isn’t? Check out our recent posts about the dawning widespread recognition that California environmental laws are out of control, and by degrees have become a thing unto itself that serves primarily to impair development without much discernible effect on the environment.

ALI-ABA Eminent Domain Program Coming – Mark Your Calendar

The annual ALI-ABA program on eminent domain and land valuation will take place on January 26-28, 2012, in San Diego. It’s a highly regarded CLE program that has been running for decades. As usual, it will provide an update on what’s new in the law of eminent domain and inverse condemnation, as well as presentations on valuation, trial techniques and negotiations.

For a copy of the brochure, including a full list of the faculty go to