Monthly Archives: May 2012

“Happy” Memorial Day?

As we wended our way to the neighborhood Starbuck’s this morning, a couple of neighbors wished us Happy Memorial Day, which on reflection struck us as odd because Memorial Day is an occasion of solemnity, not the cheerfulness that one associates with happiness. And as we were wondering how to express that thought, we came across Kenneth Anderson’s May 27th post on the Volokh Conspiracy, quoting a comment he received from someone on this very subject:

“I do not believe malice is intended, but do you not see a conflict with placing “Happy” within the phrase involving Memorial Day? It’s not a day of celebration (i.e. birthday, July 4), but of commemoration (Pearl Harbor, 9/11). You wouldn’t say happy funeral to someone, correct? This may be the result of a default to saying happy [random holiday] and to the association of parties/bbqs/days off/etc.

“It may sound awkward but “have a solemn Memorial Day” is my preference. Maybe just “Remember on Memorial Day” as a direct saying, feels more natural. A good time to remind people of wars, soldiers, and support services long forgotten or dismissed. That individuals must fight, and be ready at all times, for their way of life. Life isn’t a video game or movie where the good guys win in the end and with minimal casualties. We have been fortunate to be buffered by, not only a fantastic national defense, but by large bodies of water and limited or no threat both north and south. Our society is breeding generations of possibly complacent persons due to civilized advancement; threats however will never diminish. Must remember what it took to get to where we are and that next Memorial Day you might be recalling the life of someone near and dear. The future is unknowable, but it is securable.”

Well said.

Let the Professional Football and Baseball Nabobs Pay for Their Own Stadiums With Their Own Money. Not Yours.

In the past, we noted from time to time that municipal financing of professional sports stadiums can be a case of pouring public funds into a giant rathole. Case in point: the Astrodome in Houston, Texas. See Manny Fernandez and Daniel Cadiz, Houston Tries to Find a Use For Its Fading Astrodome, N.Y. Times, May 24, 2012, at p. A15.

To make it short, if not sweet, the Astrodome was the first domed and air conditiooned stadium, built in 1965 as the “eighth wonder of the world.” Now, it sits abandoned — its erstwhile tenants, the Houston Oilers and Houston Astros having decamped for other venues. It costs the city $3 million annually to maintain it, even if in its present condition it is not usable for public events — the local Fire Marshall shut it down for that reason.

It could be demolished it, but that would cost $128 million, and then what? Or, it could be renovated for other uses, but that would cost $210 million. Either way, that remaining $30 million municipal debt would still have to be paid off by the public.

There is a moral to this story, and we are sure you can figure out what it is. As for us, we believe that people who want to go into business — and that includes the business of running professional athletic teams — should have to invest their own money, and not be able to stick municipal taxpayers with the tab. To quote Justice Macklin Fleming of the California Court of Appeal, promoters of these deals promise to bake a bigger economic pie with bigger shares for everyone. But all too often, what they deliver is pie in the sky.

Follow up. If you want to see the kind of abuses of private rights the county engaged in — it invented a 5 by 2300 ft. “park” which it claimed barred access of adjoining property owners — take a look at Simi Investment Co. v. Harris County, 12 F.Supp.2d 603 (S.D. Tex. 1998), affirmed, 236 F.3d 240 (5th Cir. 2000).

Marin County NIMBYs – 1; Jedi Knights – 0.

Who said this and when?

“Marin County, a wealthy suburb north of San Francisco, is the best place to look for an understanding of what it means to stop suburban growth in the name of environmental protection. It means closing the gates to people who may want to move in and, where possible, even to people who may want to visit; turning to state and federal governments for help in paying the cost of exclusivity; and maintaining a tone of moral righteousness while providing a better living environment for the established residents.”

So wrote MIT Professor Bernard Frieden in his book THE ENVIRONMENTAL PROTECTION HUSTLE (MIT Press 1979), at p. 37. If you haven’t read it, you should, particularly if you have an interest in land-use laws and their abuse.

So why bring all that up now? Because today’s New York Times provides us with a perfect example of what Professor Frieden wrote about. See Norimitsu Onishi, Lucas and Rich Neighbors Agree to Disagree: Part II, N. Y. Times, May 22, 2012, at p. A13.

In a nutshell, George Lucas of “Star Wars” fame bought a 6100-acre ranch in Marin County, which he named Skywalker Ranch, and on which he built his Lucasfilm facility — or tried to. At first, all was sweetness and light, and Lucas was able to build two related facilities. But when it came to the third one, the poop hit the fan. His NIMBY neighbors rose up and opposed him. Not that the Lucasfilm facility was in any way environmentally destructive or inappropriate. As the Times article notes, the first two buildings were put up in such a way that they were invisible from the single two-lane road that snakes through the area.” But “after spending years and millions of dollars, Mr. Lucas abruptly cancelled plans recently for the third, and most likely last, major expansion, citing community opposition.” He would build instead in a place where, as the Times puts it, the local population “sees us as a creative asset, not an evil empire.” And that place may likely turn out to be some place other than California — Mr. Lucas has already built facilities in Singapore where, we are willing to bet, the locals were pleased to see him and his enterprise.

But as any fan of “Star Wars” knows, you can’t count on a Jedi Knight to give up, not even when he seems down. It appears that Mr. Lucas has struck back by announcing that he would sell his land to a developer in order to bring low income housing to Marin County. Oh dear.

The New York Times article ends on an upbeat note, asserting that the Marin County locals have resigned themselves to the coming low-cost housing (which up there means a qualifying income of $88,800 for a family of four). We shall see. Being a Californian, we don’t believe that any “low cost housing” will actually be built in that area for years, if at all.  Litigation of this type — which in this case is a certainty — is, to paraphrase Thomas Hobbes, nasty, brutish and long. California courts may talk a good game, but in the event are unlikely, to put it with restraint, to sympathize with large scale development in privileged areas like Marin County. It seems like a sure bet that given the location of the situs, this litigation will take decades without necessarily producing any positive results for the folks on the lower runmgs of the socio-economic ladder. They may well be consigned to economic Bantustans located elsewhere. See Ybarra v. Town of Los Altos, 503, F.2d 250, 254 (9th Cir. 1974).

As Professor William A. Fischel, a noted Dartmouth land economist put it in 1995: “The California court changed the legal rules so that any number of parties could stop a given development up to the moment at which it was physically improved.” It took Bonnie Agins of Agins v. Tiburon fame some 30 years before she was permitted to build three houses on her 5-acre tract of land. And take a look at Clover Valley Foundation v. City of Rocklin, where it took 30 years from rezoning to getting a favorable court decision for an ordinary subdivision which, for all we know, has not yet been built.

So keep an eye on this brouhaha, and remember to bring a picnic lunch because its resolution may take a while.

Follow up. A reader takes issue with our perspective on this controversy. He evidently believes that the Force is with Lucas. He writes:

“If you think ‘the Jedi Knights have had their ass kicked by
California’s premier NIMBYs, and have formally surrendered’ you need to
put your glasses on right side up and quit looking through the
bifocals.  The only ‘asses’ involved here are the white suburban
homeowners, who are going to be beaten into submission just as fast as
Marin County can schedule another meeting and approve this project,
along with issuing a full-blown apology to Lucas for the
inconvenience.  This is what you get when you try to start a knife
fight with guys who have light sabers, just because you’ve always been
able to buy the most expensive knives.”

Like we said, this brouhaha bears watching, and we shall see if the County folks cave in. We are always ready to be pleasantly surprised, but life being what it is, when it comes to land-use in California we rarely are. In this case “the guys with light sabers” are thin on the ground and probably don’t have the votes. Still, who knows? As Yogi Berra put it, prediction is very dificult, especially about the future.

Second follow-up. Another reader informs us that Professor Bernard Frieden passed away in 2009 at the age of 79. Our loss. R.I.P. Bernie.

What’s With the “New” Downtown?

When it comes to press reports about urban conditions, we have two rules of thumb. First, if the headline is upbeat about this or that city “coming back,” we read the text of the article very carefully because, sure enough, most of the time the optimistic tone of the headline is not reflected in the facts reported in the body of the article. Second, if the newspaper in question is the New York Times or the Los Angeles Times, it’s a good bet that the upbeat tone of the headlines is inaccurate, and is not matched by the article’s content. Case in point, today’s front-page story, Sam Allen and Hector Becerra, Downtown Is Alive, L.A. Times, May 20, 2012, at p. A1. It tells us about how downtown Los Angeles is being revived by the presence of new sports venues; how the games of the Lakers, Kings and Clippers at the downtown Staples Center cause “thousands [to] jam the sidewalks.” Thousands? Really? That’s what it says.

But unfortunately, even if true (which in our opinion is doubtful — try to visualize “thousands” of people on a sidewalk and calculate the space they would occupy — a photo would have been helpful), that may convey a misleading picture because in the next paragraph the Times ‘fesses up that those “thousands” seem to be pretty ephemeral — if you “travel a block or two in any direction . . . the crowds begin to thin out considerably.” Not only that, but if you skip to the end of the article (at p. A29), you learn that few of the game goers “linger in the bright plaza, but most [hurry] toward their cars, eager to beat the traffic heading out of downtown.” So much for those lingering “thousands” that are supposedly revitalizing downtown. And as you wend your way through this article, you also learn that the local residents — those who actually live downtown — don’t want to have anything to do with the, er, exuberant visiting sports fans, and prefer their own quiet venues.

Still, the Times article presents two bits of data that stimulate thought. First, we learn that Joel Kotkin, the cold-eyed realist when it comes to assessing changes in urban conditions, is quoted as saying, that “Downtown has some great neighborhoods that have their own specific function.” Sounds right, but for all our regard for Kotkin’s judgment, that does not amount to the makings of a genuine downtown revival as a vital human habitat, particularly for families with children, as opposed to a few trendy yuppies and boomer empty nesters.

So let’s see if the Times story is backed up by numbers. According to the Times, “Downtown’s residential population jumped 50% between 2000 and 2010 from 26,000 to 39,000.” Fifty percent sounds like a lot but according to our calculator, that’s an increase of 13,000 in ten years, or an average of 1300 per year. We find these figures    underwhelming because, to give you some idea, the flow of traffic on the 101 Freeway that serves downtown (not counting the Golden State, the Pasadena-Harbor Freeways, the Santa Monica, and the San Bernardino Freeways) is 160,000 to 165,000 cars per day, or — taking the lower number and averaging it over a 24-hour day, that comes to an average of over 6600 cars per hour. Which means that the vaunted 10-year increase in downtown population comes to under two hours’ worth of traffic on the 101 alone. We remain underwhelmed.

Finally, the Times story is noteworthy for what it does not tell the reader. Who are those 13,000 who took up residence downtown during the past decade? Are they permanent residents, or are they merely unattached young people drawn to a trendy urban lifestyle in one of Kotkin’s hip neighborhoods, or taking advantage of cheaper downtown rents in lofts and older buildings? Are they committed to a long-term future that includes having and raising children in the city? Or willl they, when the time comes to procreate, head back to the suburbs to be near Mom and Dad, and enjoy the comparative economic benefits, safety and amenities of suburbia? You tell us.

Another such puff piece comes to us from Salon (Will Doig, Rust Belt Chic: Declining Midwest Cities Make a Comeback, May 12, 2012 — click here. But before you start packing your bags and heading for Cleveland, check this out:

“But Rust Belt chic is at least partly a romantic fantasy, and that makes it a risky way to try to revitalize. Last year, Guernica magazine ran a withering critique of what it called “Detroitism,” the fetish for crumbling urban landscapes mixed with eccentric utopian delusions, “where bohemians from expensive coastal cities can have the $100 house and community garden of their dreams.” What these dreams seldom include, however, are the almost unimaginable systemic problems many of these cities suffer from: failed schools, violent crime, the threat of municipal bankruptcy. Photographers parachuting in to shoot Michigan Central Station and Anthony Bourdain’s gushing endorsement may be clouding the fact that cities in crisis won’t be lifted by chicness alone.

“What struggling cities need are jobs, and not just jobs at coffee roasteries in abandoned railroad terminals that make for great style-section articles. ‘The only way [a turnaround] will really happen is by reintroducing meaningful, equitably compensated work into these cities,’ says Catherine Tumber, author of ‘small, Gritty and Green: The Promise of America’s Smaller Industrial Cities in a Low-Carbon World.’ ‘This longing can be expressed aesthetically, but it can only be satisfied by restoring the workforce.’”

So much for trendy revivals of the old, “rust belt cities.”


Are California Redevelopment Bonds “Circling the Drain?”

In our occasional criticisms of California’s redevelopment, we have viewed with concern the mountain of bonded indebtedness accumulated by redevelopment agencies over the years. According to a report published by California Officials for Redevelopment Reform, as of the mid-2000s, there were some $81 billion worth of such  bonds outstanding, and by now it must be more. So now, when redevelopment has been abolished in California, what happens to those outstanding redevelopment bonds? The answer is that they have been taken over by “successor agencies” along with the assets of redevelopment agencies when the latter were abolished. That means cities.

Now, the California Lawyer magazine tells us that there are questions arising about those cities’ ability to service and repay those bonds. See Worry Grown Over Municipal Defaults, May 14, 2012 — click here. This is more of a “squib” than an article and it provides no details. But since tens of billions in bonded indebtedness is involved, this seems like an appropriate topic to keep an eye on. Stay tuned.

What’s Good on Other Blogs

First, Our colleague Robert H. Thomas discusses a neat case out of the Fifth Circuit in which the court gives deserved credit to the Pacific Legal Foundation’s advocacy, and explains why the fershluggene ripeness rule of Williamson County does not, and doctrinally speaking, cannot apply to cases where the plaintiff-property owner complains of deprivation of due process, rather than an uncompensated taking. It’s about time some sensible federal judges started putting an end to this misuse of twisted legal doctrine. Go to, the post of May 15th, entitled Fifth Circuit: Williamson County Ripeness Doctrine Does Not Bar Due Process Claims in Federal Court. Good show, that, with a link to the opinion.

Second. Check out Ilya Somin’s post (and esuing comments) on the Volokh Conspiracy, spotlighting abuse of eminent domain in Virginia as a departure point — click here for a Richmond Times Dispatch article by Barton Hinckle on that subject. Somin’s piece stimulates a discussion of left v. right views on abuses of the power of eminent domain.

We find some of these academic quarrels a bit much at times, but you can disregard the academic folks’ woolly-headed excesses and get an insight into this controversy that leaves unanswered the question of why people who profess to be all in favor of the poor, downtrodden members of society, and against “large corporations,” cheer when the selfsame downtrodden folks are callously evicted from their modest homes and apartments for the benefit of large, wealthy corporations for whose financial gain the takings of private property are pursued. See e.g., 31 Univ. Hawaii L. Rev. at 467, notes 185-203. If you can explain that one, let us know.

The Day of Reckoning for California Courts, and For the Rest of the State, Except for that Dumb High Speed Railroad

We concluded our recent  dispatch on the status of the California high speed railroad — click here — with the news that California is facing a $16 billion budget shortfall. Now, faced with a newly-revealed $16 billion budgetary shortfall,  our Governor dropped the other shoe and announced that the budget of California courts is being cut by some one-half billion dollars — that’s $500,000,000. That’s on top of the previous $350 million in cuts.

Needless to say, judges are incensed, and the Alliance of California Judges has issued a statement that pulls no punches. Quoth a dispatch from the Alliance of Calkifornia Judges, dated May 14, 2012:

“The day of reckoning has come to the [California] judiciary. Years of mismanagement and misplaced priorities by the Judicial Council and the Administrative Office of the Courts have caused not only a budget crisis, but a crisis in confidence. Over half a billion dollars wasted on a failed computer project, lavish salaries, pension spikes and retroactive pay raises for San Francisco bureaucrats, exorbitant construction and building maintenance programs and an unwillingness to rein in  the excesses of the AOC will cause local courts to cut essential courtroom staff and hours of operations.”

Lowball Watch – New York

Though our information is a bit short on details, we are reliably informed that in the case of In the Matter of Paolella, Supreme Court Richmond County, New York, Index No. 4018/07, decision filed May 7, 2012, the trial court awarded $810,000 in an eminent domain case involving wetlands, in which the city’s opinion of damages was $185,000. The award was thus over four times the city’s contention.

For the benefit of readers who are not acquainted with New York matters, over there the Supreme Court is a trial court — the lowest court of general jurisdiction (the highest New York court is called the Court of Appeals), and Richmond County is Staten Island, one of the five boroughs of New York City.

High Speed Railroad – (Cont’d.)

Let’s see, where were we? As the sun set in the west, the feds made it clear that if California wants to get its hands on that federal money for the high speed rail line eventually connecting San Diego and San Francisco, it will have to complete its first 120-mile segment by September 2017. For openers, to accomplish that, the railroad builders will require 120 permits from different regulatory bodies, will have to acquire 1,100 parcels of land for the right of way, and will have to spend money at the rate of $3.5 million per day, or $2,430.55 per minute, 24/7.

The problem is that it has never been done on that scale before. Earlier feats of California public project building efficiency had a money “burn rate” — love that term! — of only $1.8 million a day, and even given California’s well earned reputation for profligacy, the idea of doing so at twice the earlier rate gives one pause. And did we mention that the project is now months behind schedule?

We suggest you read all about it in Ralph Vartabedian, High-Speed Spending: Bullet Train May Need $3.5 Million a Day, Los Angeles Times, May 13, 2012 — click here.

And oh yes, just the other day California Governor Jerry Brown let it be known that past estimates of the budget deficit that is facing California this year, were optimistic, and that the projected deficit for the coming year is now up to $16 billion, which will require severe cuts in state spending.

For a fuller treatment of California’s budgetary problems see Adam Nagourney, Fiscal Woes Boomerang for Brown in California, N.Y. Times, May 14, 2o12, at p. A1 — click here.