Monthly Archives: March 2015

California Choo-Choo — Cont’d.

We have been out of town recently, so we missed the latest LA Times dispatch on the doings of California’s coming “bullet train” which is supposed to run — when completed, whenever that will be — between LA and San Francisco, but which for now is struggling to create a right of way around Fresno in the central valley. Ralph Vartabedian, Turf Wars, L.A. Times, March 6, 2015, at p. A1 (above the fold). So proceeding on the premise that better late than never, here is our opinion of what has been going on.

It sounds like the same old, familiar story. Owners of land in the path of that right of way, it would appear, have no intention of going along quietly with the state’s offers, and are demanding fair market value that exceeds the state’s opinion of what it ought to be. These farmers, it turns out to be, are not the rustics of yore in overalls and straw hats. They are wealthy owners of valuable ag land and they have been lawyering up, promising the state folks to see ’em in court. This is a potent threat because historical data make it clear that court awards — whether in California or elsewhere, whether by judges of juries — tend to run significantly higher than condemnors’ offers. So that those condemnees who reject state offers and try their cases tend to win more favorable verdicts more often than not.

Even way back in the bygone days of the 1960s, a State Highway Commissioner wrote an article in which he disclosed that “Actual costs [of right of way acquisition] were an average of 32 percent above estimates, most of the increment coming from additional right-of-way costs.” Joseph C. Houghteling, Confessions of a Highway Commissioner, Cry California, Vol. 1, No. 2 (Spring 1966, at p. 29). Not much has changed in the ensuing half-century, except that as California land values soared, the “spread” between condemnors’ lowball offers and actual recoveries in trials has grown bigger. For a sampling, see 40 Loyola LA L. Rev. at 1146-1148 (2007). Our favorite case like that, though admittedly a rare one, involved a taking of a Southern California Edison power line in which the state deposited $234,485 but the eventual award came to $49,400,000.

Why is that happening?  The best explanation we are aware of was provided by Keith Harper, MAI, whose views may be found quoted in 40 Loyola LA L. Rev. 1106-1107, and are further explained by your faithful servant (id. at p. 1108, note 162). Read it! In a nutshell, condemnor’s appraisers know that most condemnation cases will be settled, and since in large projects they have to appraise hundreds of parcels,  according to Mr. Harper, they tend to do a superficial job and save their serious effort for those cases that don’t settle and go to trial.

Right now, the LA Times informs us that the state is working on the acquisition of an initial 29-mile right-of-way section. It needs 525 parcels, but so far has acquired only 123 by settling with their owners. Some 154 land owners have rejected state offers, and it looks like those will go into litigation. So far, the state is behind schedule some two years.

Quoth the Times: “Valley landowners in the path of the train have a long list of grievances. Grape farmers say the authority plans to put fences so close to their fields they’ll be required to tear out additional vines to make room to turn their tractors. Cherry farmers say the state will disrupt irrigation systems by cutting off their fields from their wells.” And so it goes.

Sure, some of these cases will settle before going to trial, but some won’t. So it should be a high time for local lawyers. We look forward to the event.


Is New London an Urban Basket Case or a Thriving Community?

Well folks, here we go again. New London, Connecticut has announced another project in the Fort Trumbull area. Not the same area that was taken by eminent domain in Kelo v. New London, but as best we can figure it out, close by.  So why are we writing about it? Because this bit of news is accompanied by whoop-tee-do cheers about what a great, fiscally sound place New London is. Check it out: Colin A. Young, New London Audit Reveals Nearly $850,000 Surplus, The Day, March 24 (revised 3/25) 2015. That title says it all. Click here,

What else is new in New London? We also learn from the local newspaper, The Day, that the grandly named Renaissance City Development Association (which is the new moniker for the old New London Redevelopment Corporation) has recommended to the city council that it approve an $18.4 million proposed new, nearby development consisting of 104 apartment units, two 12-unit townhouse  structures, a clubhouse, etc.  What is remarkable about it is the developer’s assessment of the situation in New London: “What attracted us was the growth of New London, the direction the whole city is going in. It’s a dynamic city, and we really wanted to be a part of it.” Colin A. Young, RCDA Sends Proposal for Fort Trumbull Development to City Council, The Day, March 24 (updated 3/25) 2015. Click here

So let’s see now. When talking to the US Supreme Court (and the state courts) New London represented itself to be a down-at-the-heels burg, on its way down economically and socially, well on is way to hell in a handbasket, that could be rescued only by the grandiose Fort Trumbull redevelopment project (that would actually destroy an unoffending lower middle-class community to be replaced by upscale structures that would cater to the well-paid scientific employees at the nearby Pfizer pharmaceuticals research facility).

But as you probably know, that didn’t work out. The city and state blew some $100 million in public funds for the 91-acre site of that redevelopment, but its site where the home of Susette Kelo and her neighbors once stood (after blowing some $100 million in public funds), is a useless wasteland, generating no taxes and doing no one any good. As for Pfizer whose economic wellbeing and job creation was the ostensible purpose of that redevelopment project that was said to be the justification for the destruction of Susette Kelo’s neighborhood, it used up its tax advantages, and then moved out of New London, taking some 1400 jobs with it. But as you can see, New London is doing OK and the tale of imminent collapse it spun for the Supreme Court was just that — a tale.

And that, folks, is how the redevelopment game is played. Your tax money at work.

“Improved” LA Freeway Worse than Before

One could actually skip this long L.A. Weekly story and read just the headline. It says it all. Adam Gropman, 1.1 Billion and Five Years Later, the 405 Congestion Relief Project Is a Fail, LA Times on line, 3/4/15, click on But if you have an interest in the misadventures of public projects — or “public improvements” as their creators like to put it,  click away and do read it. The L.A. Times evidently thought it’s important because it reprinted the story on line under its own masthead.

The 405, for you flatlanders, is the San Diego Freeway, and its pertinent part is the one that crosses the Santa Monica Mountains north-south, provides access to the Getty Center museum, connects the San Fernando Valley with the West Side of Los Angeles, and is the primary route to the LAX Airport from the north. It has always been a heavily travelled freeway, but eventually it got pretty bad, so a huge project was undertaken to fix it. Did it? Actually, no. Quoth the L.A. Weekly:


$1.1 Billion and Five Years Later, the 405 Congestion Relief Project Is a Fail

Illustration by Jimmy Giegerich

“This past May the project known as the I-405 Sepulveda Pass Improvement Project came to official completion, with resulting new on-ramps and off-ramps, bridges and a northbound 405 carpool lane stretching 10 miles between the 10 and 101 Freeways.

“The four-turned–five-year, $1.1 billion project became a long-running nightmare of sudden ramp closures, poorly advertised by Metro and made all the worse by baffling detours that led drivers into the unfamiliar Bel Air Hills and Sherman Oaks hills, dead ends and unlit canyons.

As Metro’s closures and delays reached their height in 2013, L.A. Weekly encountered stranded motorists merely by following Metro’s official detours — which in many cases were roads to nowhere. And it isn’t over in the Valley or on the Westside. Sudden ramp and lane closures are still hitting motorists at Getty Center, Valley Vista, Skirball Center and elsewhere as work on the officially completed project grinds on.”

Democracy. Ain’t It Great?

Quote without comment.

This morning’s Los Angeles Times informs us that “preliminary numbers show that voter turnout in Tuesday’s Los Angeles city election was 8.6%”

Follow up. Today’s L.A. Times (front page, above the fold) makes it official: the voter turnout was indeed 8.6%. One of the council persons who ran successfully received 4.6% of the votes in his district. See Emily Alpert Reyes, Alica Walton and Peter Jamison, The Power of the Few, L.A. Times, March 5, 2015, p. A1.

NC Court of Appeal: Denial of Present Use in Anticipation of Future Condemnation Is a Present Taking

A tip of our hat to the North Carolina Court of Appeals (Kirby v. North Carolina DOT, Filed 2/17/15, holding that the state’s imposition of a future highway “corridor” on privately owned land and in the meantime denying the owner reasonable use of it is a present taking of private property.

This is a subject close to our heart because way back, close to a half century ago, your faithful servant persuaded the California Supreme Court to hold likewise in Klopping v. City of Whittier, 8 Cal.3d 39 (1972) — announcing a city intent to condemn specific property, coupled with the city’s unreasonable delay or other unreasonable conduct, entitled the owner to sue for just compensation on an inverse condemnation theory. Also see People ex rel. Dept. Pub. Wks. v. Peninsula Enterprises, 91 Cal.App.3d 332 (1979).

This government business of announcing the intent to take a property, but then not doing it for a lengthy period of time, thus denying the owner any reasonable use and depressing values is nasty stuff, so we are always glad to see a court disapprove of such tactics. Good show, Your Honors.