Dissenting Opinion

No. 134  In the Matter of Save the Pine Bush, Inc., et al

Here's what's got me confused:

• We hold that [a] (emphasis added) person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under the State Environmental Quality Review Act (SEQRA) to challenge government actions that threaten that resource.

So are we to believe that the judge is referring to a previously named person, such as the appellant or respondent, or does the judge mean "any"?  Hopefully he doesn't mean any, or am I really confused?  Anyway, very interesting position.  So as I take it, if "a person" is not someone the judge previously referenced, he then means "any" person, right?  If that is correct then this position is ridiculous!  That would mean that any one (1) person (not the greatest good for the greatest number) can stop whatever project if they (the one (1) person) ‘feel' they would lose their personal enjoyment of whatever environmental situation they enjoy.  (Are you following this?)  Someone help me here, I think I need to take diagramming sentences over again, this can't be right.  Any thoughts?

You can look it up here:   FindLaw

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This is a rent control case dealing with Castle Mobile Estates and the City of Capitola Mobile Home Rent Review Board.

I'll keep this brief.  This is nothing but wrangling over legal crap. None of the discussion even bothers to talk about the real issue; it's just a bunch of smarty's (judges who think they're smart) trying to outsmart each other. Now keep in mind the basic question is:  If substantial value is gained for the home owners (not the park owner) under the rent control (at the park owners expense), who is entitled to reap the value?   Are the home owners?  What about the park owner?  For me this is a no brainer.  If I own the park and my value is stymied under rent control but causes the individual home owners to profit is wrong.  And it's not a legal question; it is an ethical question pure and simple.  This is where the law looses in my opinion.  Some questions do not need legal interpretation to be answered (I'm allowing the principle of charity here assuming legal interpretations are the ultimate answer) they just need common sense applied.  Ya don't need 25 pages of legalese crap and still not answer the basic question.  Does anyone realize how much time was wasted and how much money was wasted?  Not to mention my time reading this sh*#!

This is very simple folks.  Here we have profit being made due to rent control, but not by the park owner. Rent control is intended to forbid the park owner from ripping off the tenants (making too much profit), right?  Well? What about tenants profiting on the back of laws that suppresses the park owner from profiting?  How is that fair?

I'm open for suggestions, but no more legalese please!  Read it for yourself here:  Legal Crap

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How many of you remember the book, Every thing I learned in life I learned in kindergarten?  It's still available through Amazon (see link below).  Well I got some advise from a friend the other day and it reminded me of that book, or at least what it was trying to say about life.  As I pondered what my friend sent I began to realize the truth in his guidance.  So, I thought I'd share some of them.

• Avoid cutting yourself when slicing vegetables:  Get someone else to hold them when you chop.
• For high blood pressure sufferers:  Cut yourself and bleed for a few minutes thus reducing the pressure in your veins.  Remember to use a timer.
• A mouse trap, placed on top of your alarm clock, will prevent you from rolling over and going back to sleep after you hit the snooze button.
• If you have a bad cough, take a large dose of laxatives; then you'll be afraid to cough.
• You only need two tools in life - WD-40 and Duct Tape.  If it doesn't move and should, use the WD -40.  If it shouldn't move and does, use the duct tape.
• If you can't fix it with a hammer, you've got an electrical problem
• Remember, Everyone seems normal until you get to know them
• Lastly, Some people are like Slinkies;  not really good for anything but they bring a smile to your face when pushed down the stairs.

Well, that seems like it pretty much covers it.  Anyone think of anything else?   Link = Kindergarden Book

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This is just crazy!!!

Ginsburg argued that the Supreme Court is losing its relevance in the international community in failing to use international law as persuasive authority.   "you will not be listened to if you don't listen to others."

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor,"   "I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law."    If you don't understand get the heck off the bench!  Is she nuts or stupid or both?

Justice Roberts disagreed with Ginsburg's position.  "If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge...And yet he's playing a role in shaping the law that binds the people in this country."

He calls the discussion of international law "meaningless" and "dangerous" because the opinion's author (Justice Stevens) quoted only international law that supported his position  and because the court "should not impose foreign moods, fads, or fashions on Americans."   Justice Antonin Scalia chastised the "arrogance" of U.S. judges who seek to decide politically charged questions involving gay rights and the death penalty by citing international law

If justices believe foreign judgments are decisive on these moral cases, they should ban abortion since most other countries do so, Scalia said.

It doesn't take a lawyer to realize that having foreign laws guide American law is unconstitutional.  Congress makes law. Period. Presidents sign it (or not in the case of an over-ridden veto) and courts interpret them. The justices are wrong in following foreign law - or even referring to them, is'nt that one of the reasons we starte dthis country in the first place?  Too bad you can't recall a judge!!!

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This involves the recent case decision of Palmyra Pacific Seafoods, LLC v. U.S. No. 08-5058.   "The court held that licenses to use Palmyra Atoll as a commercial fishing base were not taken when the federal government declared the waters around the atoll as a wildlife refuge and prohibited commercial fishing."

Real estate appraisers are taught that there is a difference between real estate and real property.  Real estate is basically the land and appurtenances, or simply put, the land, the bricks and mortar.  While real property includes what is referred to the bundle of rights.  The bundle of rights is a common way to explain the complexities of property ownership.  Even lawyers usually get taught about the bundle of rights in their first year of law school. 

Ownership of land is a much more complex proposition than simply acquiring all the rights to it. It is useful to imagine a bundle of rights that can be separated and reassembled. A "bundle of sticks" - in which each stick represents an individual right - is a common analogy made for the bundle of rights. Any property owner possesses a set of sticks related directly to the land.  These rights include but are not limited to the right to use, the right to enjoy, the right to occupy. sell, lease and encumber if the property owner so chooses, etc. ,etc..

All right already, enough with the education, what's the point?  The point is real property is more than land, sticks, and stucco.  It includes certain rights.  Then those rights are real, yes?  And those rights are inherent in real property, therefore they must be "property."

• The court held that the licenses were not "property," and even if the licenses were rendered worthless, the takings clause was not implicated. 

Just how does the court "choose" to ignore those rights and say "if" they were rendered worthless (which in logic is an admission that the rights exist), the takings clause was not implicated.  What?  Wait, I had something, it was taken from me by the government, and now I don't have it, and that's not a taking?  How is that not a taking??

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Do you remember that song?  "blockin' out the scenery, breakin' my mind.  Do this, don't do that. Can't you read the signs?"  Well it came to mind the other day after getting bombarded with a bunch of legal wrangling over billboard signs.  What's up with billboards these days?  California even passed the California Outdoor Advertising Act in 2008 which bars offsite commercial advertising.  Law of the Land has the info here: Ninth Circuit Court of Appeals Upholds California's Outdoor Advertising Act Onsite/Offsite Distinction as Neither Vague Nor Overbroad  And the PA Supreme Court found an ordinance restricting size of billboards amounts to a De Facto Exclusion, also found here PA Supreme Court Finds Ordinance Restricting Size of Billboards Amounts to a De Facto Exclusion on Law of the Land.  And recently, a federal district court issued a preliminary injunction allowing a sign with a religious message to continue to be located on private property along a state highway.   Again found on Professor Patty Salkin's Law of the Land Blog here: State Regulation of Sign with Religious Message May Violate First Amendment.  And let's not forgot the story I Can See Clearly Now posted here on EDT. So what gives?  What are signs such a pain?  And of course there is the proverbial academic study The increasing clutter of roadside signs is creating dangerous drivers.  Los Angeles also gets into the act with recent planning commission work dealing with a dramatically reworked billboard law that would ban digital billboards in most parts of the city and place new restrictions on supergraphics -- vinyl signs placed on the sides of buildings.  Is this a sign of the times?  What's so wrong with a few strategically placed signs, like these?

For those who want all the lyrics and do some reminiscing about The Five Man Electrical Band, click here SIGNS

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The name of this blog is the Dissenting Opinion, well what do you suppose my opinion on "global warming" would be?

I'm just not buying it.  How the heck did they get this far so quickly?  When I was going to elementary school the teachers were telling us kids how the world will eventually be under ice.  So we let off enough gas to change the ice age?  I guess there's one bright spot, I like the warm more than I like the cold.  Get a load of what these 'new age' enviromentalists are predicting for California:

A report for state agencies mapped areas along California's coast that can expect flooding if warming continues unabated.  California can expect hundreds of billions of dollars in costs from global warming  

• More devastating wildfires
• Wildfire property damage alone could cost Californians between $200 million and $42 billion a year
• Sea level rise ~ flooded coastlines
• 1,100 miles of new or modified coastal protection structures are needed
• Will cause drought
• Annual costs and revenue losses throughout the economy of between $2.5 billion and $15 billion by 2050
• Lower crop yields and water shortages
• More demand for electricity to cool homes
• Pacific Institute estimates that a 5-foot rise in sea levels
• 480,000 people who live in areas at risk, causing $100 billion in property damage
• California could also lose 41 square miles of coastline
• People in San Mateo, Orange and Alameda Counties are most vulnerable
• $100 billion in property loss
• Annual costs $14 billion a year to $45 billion
• San Francisco and Oakland international airports are at risk of being under water, as are 3,500 miles of roads, 30 power plants and 29 wastewater treatment plants

You can read the story here

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     Why the gap in appraisals?   This has to do with an article appearing in The Virginian-Pilot - McClatchy-Tribune on February 20 via the Internet.  You can read the whole story here on Trading Markets.  You can also read about the situation at Ackerman, Ackerman, and Dynkowski.    

     Apparently, the "gap' is from $10 million to $40 million dollars.  That's a pretty large gap to say the least.  The reason given by a Norfolk Southern spokesman Robin Chapman was the two appraisals "reflect differences in methodology."   The appraised property is a rail corridor.  Having 30 years experience in real estate appraising I can assure you it's not a difference in "methodology," it's a difference in underlying assumptions.  One appraiser looked at the property differently than the other appraiser (such as a different highest and best use).  And the possibility exists that at least one of the appraisers acted as an advocate, and there is a good possibly that both did.  It is my opinion that the ground rules about highest and best use, or whatever assumptions, should be the same for both assignments.  Whether it's worth $10 million or $40 million one thing I do believe is that one of the appraisers should be taken out the shed for good whopping.  I'll suplly the whip.

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   If I say "schnozzola" how many of you remember who that was?  I do, and I loved his show, along with Red Skelton, 77 Sunset Strip, Have Gun Will Travel.  Ah, the westerns, who could forget the westerns.  But I digress; it was Jimmy Durante on NBC who was affectionately known as the Schnozzla.  (By the way, remember the bong, bong, bong theme of NBC? oops, sorry).  The heart of the Jimmy Durante's show was Jimmy sitting at the piano performing material that had made him famous. Wearing his renowned ruffled hat, Jimmy would look down at the keyboard, shaking his head in rhythm, singing "A-ink, a-inka doo, a-ink-a dinka doo," then pause to either tell a joke or say one of his noted lines.  He would frequently slam the keyboard cover down, jump up, grab his hat, and look straight into the camera and comment, "Everybody wants to get into the act!"  Remember that?  In any case, I think Jimmy was on to something back then that is very relevant today. 

   Ever since this economy started hitting the tank, we have been inundated with finding out a lot about what caused its demise.  Thus far it appears that 99% of the blame goes to the housing market as the catalyst for the downturn.  Upon closer scrutiny, the consensus is that greedy homebuyers,  greedy loan brokers, greedy banks, and greedy Wall Street firms, are to blame for this now "great recession".  However, the list does not stop there, it goes on, and on.  Now that the economy has tanked (or at least we hope we're at the bottom), I also hear how much this downturn is costing cities, counties, and governments in general with millions and millions, and in California's case billions, in lost revenue (let's not forget what lost revenue really is - ‘tax income').  Well it seems that all that greed shouldn't be born just by the previously mentioned culprits, oh no. 

Listen to this: Just recently in the Firth Appellate District here in the State of California, the Building Industry Association won an appeal against the City of Patterson, CA.  Apparently, Morrison Homes (developer) obtained a development agreement and tentative subdivision maps for the construction of a couple of residential subdivisions.  When those were approved as part of the agreement was Morrison was to pay $734 per house in lieu of building affordable housing.  Pretty status quo at this point.  Anyway, back to the case.  Morrison agreed to pay the $734.  However 3 years later, Patterson (the city) increased this fee to $20,946 per house!  And if that isn't absurd enough, Patterson wanted to apply the increased fee to Morrison's two proposed subdivisions.  And, yes, fees in California can be $10's of thousands of dollars per house just to get a permit to build one. (Gee, I wonder if that has anything to do with housing prices in California being so high.)  At any rate, you do the math.  $734 per house to $20,946 per house equates to a whopping 2,754% increase in just 3 years, or a mere 918% per year!!!  How do you define greed?  None of the articles I read indicate housing prices went up like that, even in California.  Now Patterson isn't exactly a metropolitan center, quite the opposite.  It use to be a simple gas stop on Interstate 5 up the center of California.  In 2000 the population was around 9,000, but since then population increased about 60% to around 20,000+.  Additionally, the estimated median house or condo value in 2000 was around $129,000 and went up to almost $375,000 in 2007.  That equates to an increase of 190% or 27% per year.  Now while that is significant, it pales desolately to the almost 1000% the city of Patterson calculated.

   Funny, I don't hear anything about the greed of the cities, counties, and governments as taking any of the blame for this ‘great recession.' 

Well, it turns out you were right Jimmy, "Everybody wants to get into the act!"  Boy, do I long for good ol' days of Jimmy, Red, and the westerns.  "Good night, Mrs. Calabash, where ever you are . . . ."

 For those who want to reminisce TV shows of the 50's click here: 

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Hensley v. Columbus ~ US Court of Appeals, 6th Circuit

OK, this is where the law and the "ethical" (right) thing to do part ways.  Hensley was deprived of their well-water because Columbus dug a trench to extend a sewer pipeline.  That seems to be a fact and undisputed.  However, while the Hensley's filed legal action it was dismissed [#1] because of the statute of limitations.  Furthermore, the district court concluded that [#2] Ohio does not recognize a property interest in groundwater -- "so there was nothing to take."   Lastly, [#3] (and this takes the award for definitive stupidity.) "The Fifth Amendment does not provide the taking of property; it proscribes taking without just compensation. . . . Thus, even after a taking, the government has not violated the Constitution until it refuses to compensate the owner."

Let's sack [#2] first.  "Ohio doesn't recognize a property interest in groundwater -- so there was nothing to take."  How stupid is that?  The rest of the world does, but Ohio doesn't?  I'll keep this civilized and not use an improper term, rather just say to Hensley, nana, nana, nana!!!  I got a $100 bucks that the state of Ohio uses ground water somewhere in their state.  And I'll bet they'd recognize it if someone took it away.  But that's not the point.  The point is just because Ohio is so stupid and doesn't recognize this right doesn't mean a right to water doesn't exist!  That's just playing dirty, playing games with people's lives.  And while all you lawyer types would agree with Ohio on this point, all us ethical types would not.  How lame!  The law is the law; regardless of whether it's right or wrong -- is why the law and I part ways.

All right, let's talk about [#1], and this one has always bugged me.  "Statute of limitations?"  Wait, what?  Hensley's have been complaining about this problem since day one.  And here's the clincher; the water was taken and is still gone!  What's the limitation on that?  Forever!

If that's not enough, wait till you hear [#3].  "The Fifth Amendment does not provide the taking of property; it proscribes taking without just compensation. . . . Thus, even after a taking, the government has not violated the Constitution until it refuses to compensate the owner."  Wait a minute.  So, if Ohio sez we'll pay, but does not say when, it's all OK?  I give up.  How do you fight all that logic? 

Here's where I come from.  Looking at this situation from an ethical standpoint right is right and wrong is wrong.  Ohio took the water and should pay for it.  What's so hard to understand about that? 

Please, please don't try and explain the law.  The law has been the problem.  If condemnation of private property is to ever get the proper respect, games like this must stop.   What should be the proper ethical action in a situation like this.  If done ethically, respect for the process would be gained, not lost.

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