Monthly Archives: March 2019

Taking the Preakness Horse Race by Eminent Domain?

Here we go again, folks. The city of Baltimore, evidently unchastened by its unsuccessful attempt of a couple of decades ago to take the Colts NFL franchise, is trying to take the Preakness horse race (and the rights thereto) by eminent domain. If that strikes you as absurd, join the club. But absurd as it may sound, there is a precedent of sorts for this attempt to abuse the power of eminent domain. A few years back, the city of Oakland, California, tried to take the NFL franchise of the Oakland Raiders in order to prevent them from moving to Los Angeles. We wrote about it at the time. The California Supreme Court held that doing so met the “public use” constitutional limitation on the power of eminent contained in the Fifth Amendment. But eventually, California courts came to their senses and held that “public use” or not, the taking was impermissible because it would be a violation of, of all things, the Interstate Commerce Clause of the Constitution.

So, after providing lots of employment to a bunch of lawyers (including inter alia  your faithful servant) the Raiders moved to Los Angeles. But it didn’t work out — after a while the Raiders moved back to Oakland thus demonstrating that the market, not the folks in city hall, has the last word when it comes to running a successful NFL team. See Gideon Kanner, Revisiting Baltimore’s Failed Hail Mary, LA Daily Journal, April 2, 2009, at p. 6.

Baltimore also talked a good game about taking the Pimlico/Preakness horse race back in 2009. See Gideon Kanner, Maryland’s Bad Track Record, LA Daily Journal, April 17, 2009, at p, 6. But that effort went nowhere.

Now Baltimore is trying it again. You can get the detailed legal story on the Volokh Conspiracy of March 26th, 2019, wherein Professor Ilya Somin goes into the legalities (or illegalities of the matter, as the case may be) in some detail. We recommend that you read his piece if you have an interest in this fershluggeneh field of law.

What puzzles us is that in all these cases the avowed purpose of the attempted taking was to prevent the Raiders (and Colts) from moving out of town. But no one, to the best of our recollection, based the opposition to these attempted takings on the constitutional right to travel. Though the law is plain that Americans have every right to move across the fruited plain as they wish, no one, to the best of our recollection raised that legal point as a defense to the taking of the Raiders NFL franchise in order to keep them in Oakland, even though the city was candid about its desire to prevent the Raiders from moving to Los Angeles. Which is academic because the Raiders won on another theory. But who knows, maybe that defense will be raised now.

So stay tuned and see how it all turns out.

Honolulu Choo-Choo

No sooner did the California planned “bullet train” between the San Francisco bay area and points  south meet its demise at the hands of our new Governor, that word reaches us of an even greater planning, engineering, environmental and fiscal disaster. This one comes to us from   Hawaii. If you have any interest at all in the construction of public works and the acquisition of land for them, you must read the front-page story in today’s Wall Street Journal. See Dan Frosch and Paul Overberg, Rail Line Runs into Trouble in Paradise, March, 23-24, 2019, p. A1.

It’s a story that defies our efforts to sum it up concisely, but fortunately, the authors have done it for us, so we will have to be content with just quoting the pertinent part of the Wall Street Journal article, starting on the front page:

“Among the cascade of problems Honolulu pushed ahead before fully planning the project, and nearly 100 contracts had to be reworked, causing delays. The city began construction before fully checking Native Hawaiian burial grounds, and a judge halted  the project for over a year. Planners built too close to power lines, so Honolulu must shell out hundreds of million of dollars to move them.

“Dogged by such blunders, the project has seen its price tag soar to more than $9 billion from about $5 billion. The cost overruns are among the largest that transportation experts say they’ve ever seen. The cost has led to an extra excise tax on businesses, which can affect the price of goods and services, and it has hit tourists through an expanded hotel tax.

“The federal government has suspended payment of its share of the budget. And a recent state audit said officials misled the public about the train line’s shaky finances.

“A federal grand jury is now looking into the project. Last month, the municipal body overseeing it received three subpoenas from the U.S. Attorney for Hawaii, demanding files on consultant contracts, correspondence with agencies, relocation payments and other records. Federal officials haven’t disclosed the focus of the sweeping probe.

“Honolulu elevated rail line shows how badly municipalities can stumble in tackling giant infrastructure project, especially when they are powered by political urgency. . . .”  *  *  *  “Others wonder how well will a commuter line befits island life, since stations won’t be within easy walk of celebrated destinations  such bas Waikiki Beach and Diamond Head park.”

We could go on and on, but we won’t. Suffice it to note (in addition to the above missteps) that “steel cables inside precast concrete sections that form the trackbed will be monitored for20 years because some failed during construction.” (emphasis added). You don’t need an engineering degree to reflect of this one.

Once upon a time America was noted and admired for its engineering prowess in designing and building massive infrastructure projects. This was done with primitive 19th century technology and largely with the power of human muscles. But now, it would appear, we can’t even install steel-cable reinforced  concrete structures without them failing even as they are being installed.

Lowball Watch — Indiana

The Cherokee Tribune reports a jury award over twice the city’s offer. The subject property was commercial, improved with a glass shop. The city offered $160,000. City’s appraisers opined to a value of $145,000. The jury verdict was $305,000, plus interest. The court also awarded the owners attorney fees in the amount of $26,000. Devin Zimmerman, Jury Awards Kokomo Glass Shop $305,000 in Eminent Domain, Cherokee Tribune, March 18, 2019.