Monthly Archives: October 2011

Beware the Public-Private Label

When we digressed the other day from our usual land-use/eminent domain blogging, to indulge in a bit of gastronomic humor arising out of the “Occupy Wall Street” caper in New York (, we didn’t realize that it too has a land-use wrinkle to it. Enter Jerold S. Kayden, professor of urban design at Harvard, with some commentary on the land-use aspects of things. His op-ed piece, Meet Me at the Plaza, N.Y. Times, October 20, 2011, at p. A25, is educational. It informs us that those “private” parks in New York, like the now famous (or is it infamous?) Zucotti Park that has become the headquarters of the “Occupy Wall Street” crowd, is one of many small, nominally privately-owned parks scattered throughout New York. They came about when the city decided to encourage their creation by offering developers a bonus of 10 square feet of building space for each foot of park space. Of course, the predictable happened. Since the city regulations said nothing specific about what was to be done with these little “parks” many of them became useless patches of concrete that suit the convenience and sought-after image of the developers. And why not? After all, if those parks are private why shouldn’t their private owners manage them as they see fit within the bounds of the law?

But, says Professor Kayden, the foofaraw over Zuccotti Park has stimulated a movement to have the city impose “universally applicable rules prohibiting future Occupy Wall Street-style use of public space, along with the automatic right to close all [park] space at night.” So what could be wrong with that? Well, according to Professor Kayden, that raises “important questions. Should owners be allowed to prohibit use by organized private groups, whether for political rallies or spontaneous gatherings? Are passive activities like quiet conversation or lunchtime eating to become the only approved conduct? Should all owners have the right to close their spaces at night?”

We have problems with these questions. The third one in particular should be a no-brainer. If these spaces are to be nominally private, what’s wrong with their owners closing them down for the night? Hasn’t Professor Kayden heard of New York folks who go bump in the night and engage in anti-social activities in parks? So what could be wrong with closing the parks to prevent that? And why should hard-working, lunch-eating New Yorkers out to catch a pleasant break and  a few rays with their lunch  be displaced by hordes of chanting political activists out to peddle their ideological nostrums? After, all if these parks are to be deemed “public” that means that their primary function is to provide places of repose for the public, that any member of the public can use them without fear of being displaced by a horde of chanting, sign-waving wackos out to make a political point?

And that reminds us. Why aren’t the New York city authorities clearing that nominally private Zuccotti Park? Isn’t the protection of private property one of the core functions of government?

Finally, being the curmudgeonly type that your faithful servant tends to be at times, we can’t help wondering if the attitude toward those park-occupying protesters would be similarly benign if they were neo-Nazis waving swastikas and otherwise displaying their familiar BS. Do you suppose that the city of New York and the bien pensant folks like Professor Kayden would  be similarly understanding of their occupation of a private park that in theory is supposed to be open to all New Yorkers as a place of repose? Call us cynical, but somehow we doubt it.

Follow up. If you ask us, New Yorkers, and that includes the New York Times, are making too big a tsimmes out of this narishkeyt (consult Leo Rosten’s “The Joys of Yiddish,” pp. 415 and 263 respectively). Now, the New York Times has chimed in editorially, commending the local Community Board for its “more sensible response.” (Editorial, A Good Approach on Wall Street, N.Y. Times, Oct. 25, 2011, at p. A24). And what might that be? A call to the protesters to limit banging their drums, chanting etc., to “two hours at midday,” an effort even the Times finds “not realistic.” And — and here it comes, folks — for “the city” to arrange  for “off-site portable bathrooms to be paid by local donors.” So why won’t the Board members perform these commendable donative deeds themslves? They don’t say. Why mess with the protesters’ poop when they can demand that  someone else can do it for them? Talk about a nanny state!

In the meantime, the protesters are digging in for the long run and  “winterizing” their tents, and the cops don’t plan to do anything, even though Mayor Bloomberg avers that the First Amendment protects free speech, not the right to pitch tents on somebody else’s property.

And so it goes. So if you ever need an example of the  deterioration of American society — its inability or unwillingness to maintain basic law, order and sanitation in the streets — look no further than this caper. While you’re looking, you might also read Mark Steyn’s recent bestseller, “After America.” It will go a long way toward putting all this nonsense into focus.


Lowball Watch – New Jersey

The New Jersey Journal-News ( reports that the New Jersey Supreme Court refused to hear the appeal of the Jersey City Redevelopment Agency. Terrence T. McDonald, Jersey City Eminent Domain Fight May be at an End With State Supreme Court’s Refusal to Hear Challenge,, October 20, 2011 – click here.

The Agency offered the owners $3.9 million back in 2004 for a 3.4-acre parcel with a view of Liberty State Park and downtown Manhattan. The trial court awarded $18.8 million. With interest, the award has grown to $21 million.

The award, without interest, is thus 4.7 times the Agency’s offer, and if you count the interest, it’s 5.3 times the offer.

They Never Learn, Do They?

We just came across a dispatch that Quincy, Massachusetts, is about to play the old redevelopment game by razing 50 acres in the center of town at a cost of $300 million and having a developer build a $1.3 billion complex consisting of retail, entertainment, office, hotel, parking and housing facilities. The new wrinkle is two-fold: first, the bonds that the city intends to issue will be general obligation, not revenue bonds, and second, that won’t happen until the developer puts in the infrastructure at his expense. Estimated completion date: 10 years from now.

Rots of ruck, folks.

For the story click here.

Cities v. Suburbs — People May Talk a Good Game About Moving to Cities, But When Push Comes to Shove, they Stay in the Suburbs and Love It.

We just came across a wonderful piece on the much talked about but rarely seen move from suburbs to the cities. It’s Greg Hanscom, Stranded in Suburbia: Why Aren’t Americans Moving to the City? Grist, October 17, 2011. Click here. It’s insightful and funny, and is must reading for anyone with an interest in land-use matters, particularly as they relate to sprawl.

It reminds us of the apocryphal story about the lady who wants to be within walking distance from a good Starbuck’s, provided she can actually live in a secluded cottage in the woods.

We won’t spoil your enjoyment by telling you what Hanscom’s real point is, but we will quote here his tongue-in-cheek conclusion.

“Shocking as it is, one eventually becomes acclimated and then numbed to the theme restaurants, cinema multiplexes, and warehouse-sized grocery stores.”

Yes, it’s bad out in the ‘burbs. But it’s not half bad enough.

Follow up. reports that new immigrants, evidently being in their right minds, are eschewing the historical habit of settling in the cities next to their own kind, and are going to the suburbs. Nate Berg, Suburbia: Land of Immigrants, October 18, 2011 – click here.


Lowball Watch – California

The numbers in the case of Community Redevelopment Agency of Rancho Cordova v. Lily Co., a taking of 9.85-acre parcel for redevelopment, speak for themselves.

Agency’s pre-condemnation offer – $4.5 million, followed by its hiring of a new appraiser who dropped the figure to $2,152,000. Agency’s formal pre-trial offer after the condemnation case was filed – $3.1 million with propertry remediated. Owner’s formal demand – $5.9 million as is.  (Property was in the process of remediation by the owner).

Jury verdict – $9.66 million, minus $1.77 for completion of remediation, for a net of $7.89 million.

So the bottom line is a net award of $7.83 million, as opposed to the Agency’s original offer of $4.5 million. Which according to our calculator comes to an increase of $3.33 million. But if you recall that the Agency dropped its pre-litigation offer to $2,152,000, the increase on that basis was $5,678,000, or over 2.6 times the prelitigation offer.


What’s the Big Deal About a Measly $9.1 Billion?

The Los Angeles Times reports that after all the talk about stimulating the economy with public works and “shovel-ready” projects, it turns out that the State of California has been sitting on $9.1 billion in infrastructure bonds that have been sold, without any infrastructure being created thus far. George Skelton, $9 Billion Looking for a Job, L.A. Times, October 16, 2011. Click here. What that means is that instead of building roads (some of which are badly needed — just ask the traffic-bound commuters around here), the state is paying about $630 million per year to service this debt with nothing to show for it.

Why is this happeneing? Quoth Mr. Skelton, the author of this article: “No one I talked to seems to know. They are trying to find out. Or they’re waiting for someone to tell them.”

Your tax money at work.

Follow up. We are reminded that this is not the first time this sort of thing has happened. A while back the L.A. Times brought the dispatch that the State was sitting on some $2 billion earmarked for road projects which were not being implemented. See Virginia Ellis, Davis’ Road Funding Plan Criticized, Los Angeles Times, Jan. 11, 2000, p. A3.


Only in America. Free Lunch on Wall Street — Real Lunch

Every now and then we just have to depart from our main subject of eminent domain and land use, to comment on some timely topic of broader interest. So here goes.

Old timers may remember that way back when hippies gathered at Woodstock, feeding them eventually got to be a problem — things got pretty grim on the gastronomic front, with the National Guard having to bring in food. But that was then — this is now.

Today’s New York Times brings the upbeat dispatch that the radical class warriors who are “occupying Wall Street” in New York are eating right well, and gaining weight. Jeff Gordinier, Want to Get Fat on Wall Street? Try Protesting, N.Y. Times, October 12, 2011, at p. D1. One of the “occupiers” is quoted by the Times, “I’ve been here for 12 days, and I’ve put on 5 pounds.” Way to go, man. If you’re gonna wage war, you may as well do it on a full stomach, just as Napoleon prescribed. And none of those military rations for these warriors. No, sir! The goodies have come from pizza joints and delis like manna from heaven. To say nothing of bags of fresh cookies delivered for dessert. One of the Wall Street class warriors is quoted as saying “We don’t know where it comes from. It just appears, and we eat it.” Voila! Free lunch.

The local restaurateurs who receive these food orders and deliver them, aver that they have been getting orders from Germany, France, England, Italy and Greece . . .” A veritable Marshall Plan in reverse, as it were.

But who is the champion when it comes to providing the free lunch? California, of course. A local pizza shop owner says that he has been getting orders from all over, but numero uno is — who else? — California. Quoth the pizza man, “The phones don’t stop ringing. People from California order the most at one time. Someone from the West Coast had called in the biggest delivery: he wanted 50 pizzas dispatched to the park.” So do we Californians know how to live, or what? After all, our state motto is Bring me men to match my mountains. We are however, also a state who knows how fitness works, we have outdoor gyms, beach bodies and sports such as beginner tennis lessons available for anyone and everyone to get fit. What’s a few slices of pizza between friends eh?

Ultimately there is no denying that we could all be doing more to live healthier lifestyles. I will be honest with you, keeping fit is not always easy. We all live such busy lives nowadays that finding the time to exercise can be a real struggle. However, it is important to remember that there are so many amazing ways to get your heart rate up and your blood pumping that there really are no excuses. For example, recently I have been really enjoying my yoga classes. Yoga helps to build strength, awareness, and harmony in both the mind and body and therefore it is perfect for busy people like me.

In case you were not already aware, there are more than 100 different types, or schools, of yoga. Most sessions typically include breathing exercises, meditation, and assuming postures that stretch and flex various muscle groups. Plus, the health benefits of yoga are wonderful. There is even research to suggest that the relaxation techniques incorporated in yoga can lessen chronic pain, such as lower back pain, arthritis, headaches, and carpal tunnel syndrome.

One of my best friends is a newly qualified yoga teacher so I attend her classes once or twice a week. She has actually inspired me to think about becoming a yoga teacher. Moreover, my friend always tells me that if you want to do any yoga teacher training austin is the place to go. Ultimately, I suppose what I am trying to say is that if we do not take action to change our lifestyles, the obesity epidemic in this country will only get worse.

How do you keep fit? And what do you think about the current trend of unhealthy food on Wall Street? Get in touch and let me know.

Dispatch From China – Reporting on the Brigham-Kanner Property Rights Conference in Beijing

We are pleased to report that Robert Thomas, the Hawaiian lawyer who runs the great blog, is in China, attending the eighth annual Brigham-Kanner conference on property rights, sponsored jointly by William & Mary College of Law and Tsinghua University in Beijing. Thomas is both knowledgeable and a good writer, and we highly recommend his posts in general, and his dispatches from Beijing in particular. The conference does not begin formally until Friday, the 14th of October, but Roberts has started his reporting today.

This year’s recipient of the Brigham-Kanner prize awarded annually by William & Mary College Law School is retired Justice Sandra Day O’Connor. Unfortunately, for reasons that are unknown to us, Justice O’Connor had to cancel her trip to Beijing, but her remarks on the occasion will be available online, and on DVD. We will post the link when it becomes available.

Those Spreading Eminent Domain Riots in China, and Their Implications

The Los Angeles Times reports that riots in China over the government’s disregard of private property rights are intensifying. “Farmers want a stop to confiscations of their land or to get better compensation for lost property. Homeowners want to stop demolitions. People want cleaner air and water and safer food. . .” However, “[p]roperty confiscation is probably the largest single trigger for extreme protest.”  Barbara Demick, Protests in China Over Local Grievances Surge, and Get a Hearing, L.A. Times, October 8, 2011. Click here.

“The number of reported ‘mass incidents’ rose from 8700 in 1993 to more than 90,000 in 2006, according to the Chinese Police Academy. A professor at Tsinghua University, Sun Liping, has told Chinese reporters he believes the figure last year was up to 180,000.” That, in our book, is a lot of “incidents” (it comes to about 500 per day), and it demonstrates that the Chinese people have had it up to here with a kleptocratic system of government that disregards their natural right to property ownership, and to the fruits thereof. Not to put too nice a turn of phrasing on it, it’s a system that robs them of their substance, to further a system that under the banner of communism is really another form of cozy, crony capitalism.

How cozy? “Local governments last year earned $470 billion from land deals, up from $70 million in 1989, according to the Ministry of Land and Resources, and farmers — who lease their land rather than own it under the communist system — have scant protection if local officials want to give the leases to real estate developers who will pay more.” We don’t mean to overstate it, but that sounds like the Kelo case, doesn’t it? And that isn’t the only similarity. “Ms. Jinhua, a 43-year old resident of Siping, in the northeasern province of Jilin, said she wa sowing corn seeds on fields her husband’s family had farmed for generations when local officials, accompanied by unifortmed police, ordered her off the land.” Sounds bad, doesn’t it? Unfortunately, that would be permissible under American law too. The U.S. Supreme Court has held that the power of eminent domain may be exercised through physical seizure of the subject property without benefit of any court proceedings or due process. Two U.S. Courts of Appeals (the 5th and the 9th) have held in those words, that the American government may do just that — physically seize private land, and say to the protesting owner “Sue me.” Check it out if you don’t believe us.

And so it goes. Still, be all that as it may, we experience a feeling of revulsion whenever we come across this sort of thing, where American law that is said to be of the people’s government that is the embodiment of due process, fairness and equity, turns out in some ways to be not all that much different than the law of a barbaric government like China’s autocracy.

Only in eminent domain law!