Monthly Archives: May 2013

Wow! A Landowner Wins a Regulatory Taking Case in California

We are on the road at the moment, without access to our usual resources, but we hear that the California Court of Appeal just affirmed a trial court judgment finding that a county’s regulatory conduct amounted to a temporary regulatory taking, awarding substantial damages and attorneys fees — a total award just short of a million dollars. Lockaway v. County of Alameda, May 9, 2013, First Appellate District (San Francisco).

To get further details and the text of the opinion, go to our usual source of good stuff, the blog of our colleague Robert Thomas;

A Backward Look at Kelo v. New London has been running a video of Peter Sagal’s commentary on the Constitution. One segment is devoted to the  Kelo case. To see that video,  go to the Volokh Conspirace and check out one of the posts by Peter Sagal on the Constitution, particularly the segment on the Kelo case.

Nothing startling about that video. PBS is hardly the sort of outfit likely to wax indignant over abuse of individual property rights, and unsurprisingly, its criticism of the Kelo caper is rather mild. It’s a sort of surprized “Gosh! Can they do that?” sort of thing. But it is criticism, and coming as it does from the generally left of center PBS folks, it’s worth noting. What is informative is its showing of  the site: both as depicted in the city’s phony plans — the plans over which the U.S. Supreme Court majority waxed ecstatic, and the reality — the actual reality if you’ll pardon the redundancy — depicting the empty acreage where the homes of Susette Kelo and her neighbors once stood and which is now empty land, overgrown with weeds, doing no one any good after consuming something like $100,000,000 in public funds.

An Eminent Domain Lowball in the Making? – New Jersey reports that the New Jersey Supreme Court has declined to hear an appeal of the local Diocese, regarding a taking by eminent domain of a part of its Bellmawr cemetery for highway improvements. What appears to have been in issue was the right to take, not valuation — at least not yet. See Jim Walsh, High Court Refuses Bellmawr Cemetery Hearing, Courier Post, May 2, 2023.

The New Jersey State DOT seeks to take a part of the cemetery, and as of 2007, has offered $1.9 million. The church seeks $19.4 million if the taking  is going to proceed, as it now is. So this controversy bids fair to set up at least the potential for one hell of a lowball. We are unable to  gain a realistic insight into this controversy and of the valuation factors that divide the parties because the Courier Post article is a bit terse and confusing: for one thing, it says that DOT does not intend to move any graves, but it also says that part of the compensation sought by the Diocese is for grave moving. Possibly, this grave-moving may be necessitated by the taking of a still-unused part of the cemetery that is not actually occupied by graves, and that may impact on the unused part, but that is not clear. Either way, it appears that the State and the diocese see determination of severance damages very differently. So keep your eyes on this one — if it goes to trial, it should be fun to watch.

The taking of cemeteries can be contentious and controversial because of the emotional factors involved. In the past few years, there was a major controversy in Illinois over the taking of a cemetery for the expansion of the Chicago airport. The owners challenged the taking on necessity grounds, but lost.  The Illinois Appellate Court disclaimed any ability to pass judgement on the technical matters underlying the decision on how and where to lay out the new airport. Chicago v. St. John’s United Church of Christ,  935 N.E.2d 1158 (Ill.App. 2010). But with all due respect to their Illinois Lordships, that was piffle: courts pass judgement on such technical matters all the time in connection with challenges to projects whose construction is opposed on environmental grounds. And of course, passing judgment on the soundness and care with which all sorts of techical decisions are made, is mother’s milk in tort cases where someone has been injured and claims that it happened because some machine, device, structure, construction etc. was negligently designed, constructed and/or operated. Courts seem to have no problems with those technical matters either.

The only case of that kind known to us, where the cemetery owner prevailed on the right to take, was the old California case of Eden Memorial Park v. Superior Court, decided in the 1960s, but that was a short-lived victory. After losing in state court on statutory grounds (under a statute forbidding the taking of cemeteries for highways), the State DOT went whining to the feds who obliged and condemned the subject parcel in federal court under federal law, and then conveyed it to DOT. The owners then challenged the state’s ability to take title, being as that would indirectly violate that statute and result in the acquisition by the State of cemetery land for a use forbidden by statute, but the California Supreme Court disagreed and allowed the transfer of that land by deed from the feds to the State.

We wrote about the problem of cemetery takings before, and if you want to see it discussed in slightly more detail, click on

Follow up. For additional information on this case go to the New Jersey Einent Domain Blog


Lowball Watch — Tennessee

The Nashville Post ( reports that the Tennessee Court of Appeal affirmed a trial court judgment awarding $30.4 million to Tower Investments for the taking of the Nashville Music Center, on the condemnor’s (Metropolitan Development & Housing Agency’s) evidence of value of $14.7 million, paid six tears ago. The condemnor had offered $14.8 million at trial. Eric Snyder, Court Upholds $30M Tab for Music City Center Land Purchase, Nashville Post, May, 2, 2013. Presumably, interest will be added to the amount representing the difference between the $14.7 payment and the $30.4 million award.

There was evidently an earlier trial in which a jury awarded $16.1 million, but that judgment was reversed by the Tennessee Court of Appeals.

The report is rather sketchy and does not report what factual or legal issues caused the large disparity between the parties’ respective opinions of value.

California Choo-Choo (Cont’d.)

The California proposed “bullet train” project is slowly but surely transforming itself into something reminiscent of the “Keystone Kops” farce. The Los Angeles Times reports a whole new batch of problems. Ralph Vartabedian and Dan Weikel California Bullet Train Groundbreaking Faces New Obstacles, April 29, 2013. Click here.

What’s wrong this time? Take look:

 “[L]ast week, Burlington Northern Santa Fe Railway Co., which operates a freight line that follows some of the 130-mile initial route in the Central Valley, warned in a blunt letter that no deal has been reached to build on or near its existing track. The company also signaled that it may not be willing to accept the project as proposed, in part because the exact route of the line is still unclear.

BNSF had been seen as one of the more accommodating organizations to the project. But the letter, addressed to the rail authority’s main consultant, Parsons Brinckerhoff, and copied to the rail authority, asserts that the rail agency’s planning process has “a great deal of ambiguity and contradictions.” The agency is sending mixed messages to different government agencies about what the construction entails, and it’s not clear who has the authority to speak and negotiate for the state, the railroad claimed.”

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“[T]he issues in the letter parallel those raised by Rep. Jeff Denham (R-Atwater), chairman of the House rail subcommittee, who said he will conduct a hearing on the project May 28.

“We want to know what routes they are choosing and the timeline on the project,” he said.

Seems to us like this is one hell of a time to start deciding what routes will be followed. But hey man, it’s the government in action.

And oh, yes. The L.A. Times article includes a color picture of our Governor boarding a bullet train. In Beijing. Further your affiant sayeth naught.