Sneaking Suspicions
 
Archives-- September 28-October 4, 2003


This page includes posts from September 28-October 4, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

October 3, 2003
What part of “you lost, they won” didn’t you understand?

Some folks have a little trouble “letting go,” as they say. 

And sometimes their lawyers have the same difficulty.

On occasion, the courts will let them know that perhaps they should have stopped pushing their case, by stopping it for them—along with a little something extra to drive home the lesson. 

Gary Feldstein and his wife entered into a contract to buy a choice piece of property in The Springs section of East Hampton, a pricey Long Island resort community, from a man named Rounick. It was a lease-purchase deal, with payments of $500,000 per year until a balloon payment seven years later of around $4 to $5 million. 

Just before the balloon payment was due, the Feldsteins sold their lease-purchase agreement to Peter Morton, for $9 million.  

Somehow at this same time, Rounick decided that he still owned the property, and sold a deed to the property to Sheldon Solow for about $5 million.  

Before any final conclusions were reached on exactly who owned the land, Rounick died, leaving behind a big mess. 

Solow, Feldstein, Morton, and several others involved in the burgeoning fiasco ended up in court. 

Several courts, in fact.  

The parties duked it out in the New York Supreme Court for Suffolk County, the appellate court that affirmed the Suffolk County Supreme Court decision in favor of the Feldstein/Morton side, the East Hampton Justice Court, the U.S. District Court for the Eastern District of New York, the U.S. Bankruptcy Court for the Southern District of Florida, and the U.S. District Court for the Southern District of New York. 

In the most recent lawsuit, the Solow side tried to make RICO and common law fraud claims against Feldstein. The Southern District judge dismissed the claims in their entirety, not least of which because they had lost their claims in the other lawsuits. 

In addition, this time the Federal judge added a twist to the final judgment. She entered an injunction against the plaintiffs, prohibiting the filing of any other Federal lawsuits relating to the East Hampton property without first obtaining permission to file from the Court. In addition, if the plaintiffs tried to file any more state court lawsuits about the property, they were required to attach a copy of the District Court’s opinion and judgment to their initial filings. 

Undeterred, the plaintiffs appealed this decision to the Second Circuit. 

The unanimous appellate panel was neither sympathetic nor amused. 

First, it upheld the District Court’s decision to dismiss the lawsuit.  

Second, it upheld the District Court’s decision to issue the injunctions intended to prevent any further litigation relating to who was literally entitled to the East Hampton property. 

Finally, the panel issued its own order for sanctions against the plaintiffs and their attorneys for bringing this appeal, under Rule 38 of the Federal Rules of Appellate Procedure:

[W]e … conclude that the imposition of double costs … is appropriate in light of [Plaintiffs’] extensive history of persistent, repetitive and vexatious litigation involving the Premises, and particularly the frivolous nature of the instant appeal from the judgment entered by Judge Preska.… We direct that plaintiffs personally pay a total of 50% of such costs, and that the remaining 50% be paid by plaintiffs’ counsel for their facilitation of this frivolous appeal.

I wonder if the Plaintiffs will now try their luck, such as it is, with the U.S. Supreme Court.

For their sake, I hope not.

October 3, 2003
Bill Gates, evil intergalactic genius?

The Washington Post’s technology section ran this headline today:

Suit Holds Microsoft Responsible for Worm Holes

Just reading this announcement made me think:

Are there no limits to the evils on this earth (and beyond), which some folks won’t try to pin on Bill Gates?

He's just a salesman, fer gosh sakes.

A highly successful salesman, but still.

October 2, 2003
Applesauce Potpourri

Some recipes create a very nice potpourri for the house as they simmer.

Last Sunday afternoon I made up a large batch of applesauce, inspired by the presence of about twenty-five homegrown tart green cooking apples that one of my wife's students gave her.

The resulting smell throughout our home was as pleasant as the taste.

I cut up the apples into eight pieces each, filling a ten-quart stock pot nearly to the brim.

Into the pot I added a teaspoon of ground cloves, two-thirds of a cinnamon stick, 1/3 cup of water, and four tablespoons of sugar.

The amount of sugar used in this recipe depends on how sweet the apples are; these almost made my lips pucker.

I covered the pot, and put it on the range at very low heat, stirring every five minutes.

Just about forty minutes later, I took the steaming mixture off the heat. I then hand-cranked the apples through a food mill into a large bowl, about two cups at a time, which separated the seeds and skins from the mix.

All told, this produced about a half-gallon of dark green sauce--and the house smelled great all evening.

October 2, 2003
Talking to the Possum

This may surprise you, but there really is a limited universe of folks who can intelligently discuss the intricacies of curb ramps and truncated dome retrofitting requirements under the Americans with Disabilities Act.

Fortunately, Terry Oglesby is one of them.

We had a very pleasant conversation, which as he's noted went off-topic a bit, but enjoyably so.

Blogging certainly has its benefits, not all of which are limited to the pleasures of writing.

October 2, 2003
Four Claudes, graded on the Demand/Supply Curve

Some Claude-worthy candidates fairly leap out at you from the computer monitor, thanks to the extreme clarity of their banality.

Like this one, for example:

If Weather Is Cold, Natural Gas Prices Could Shoot Up This Winter

I’m so glad the headline writer confirmed the existence of the classic demand/supply curve. Aren’t you?

This one earns four Claudes.  

October 1, 2003
A refreshingly honest bit of reporting

Bluntly honest reporting is a rare commodity, especially in the hothouse atmosphere of Washington, DC.

When it happens, therefore, it should be noted and applauded.

Today’s Washington Post included a fine report by staff writer Katherine Shaver concerning a just-announced national traffic congestion study.

As a transportation lawyer, I applaud her direct reportage of the reactions to the study, detailed in the fifth paragraph in the online edition: 

The study's release touched off the usual flurry of news releases from various interest groups, including environmentalists and road builders, each saying that the rankings prove that its approach is the right one. While the report uses more than a dozen measures to rank cities for the worst traffic, each group touts the ranking that most proves its point.

Thank you, Ms. Shaver—and thanks as well to the editors for leaving this paragraph in the story, along with several examples that prove her point.

Read the whole thing, as some might say.

And, as someone else says, short post tonight because I have a column due.

More fun tomorrow.

September 30, 2003
Not too blight

Charles Kuffner asked me if I saw the 60 Minutes segment last Sunday about eminent domain abuse.

I hadn’t, so he pointed me to the edited transcript of the show on the CBS website.

The transcript centered on the City of Lakewood, Ohio. It is attempting to condemn all of the homes within a pleasant middle-class neighborhood, and then make the land available to a developer for the construction of a high-dollar project to increase Lakewood’s property tax base. The other part of the piece dealt with a smaller-scale eminent domain case in Mesa, Arizona.

Reading the CBS piece led me to Lakewood's official website and a few other sites with more information about the Lakewood case, including the site for the Institute for Justice. The self-described libertarian public interest law firm is representing the Lakewood homeowners and the Mesa businessman who are fighting these two redevelopment proposals.

Based on what I read, I frankly hope the City of Lakewood loses, and with as much bad publicity that can be mustered when it happens.

The city’s abuse of the word “blight” to justify this outrageous land grab, in the guise of a bogus urban redevelopment plan, does violence to any normal understanding of the term. Lakewood’s effort to expand its tax base with this scheme is utterly deplorable, and fully deserved its 60 Minutes treatment.

I deal with eminent domain issues in my work in representing a state department of transportation. There are rarely any legal issues concerning the fundamental requirement that any land taken by DelDOT be intended for a public purpose.

In the redevelopment context, however, there is a significantly greater chance for eminent domain abuse. To counter those objections, states and political subdivisions typically limit their redevelopment authority to dealing with blighted areas, trying to improve them through acquisition and renewal.

Nonetheless, the difference between the usual statutory understanding of the word “blight” and what’s happening in Lakewood couldn’t be more starkly drawn.

For example, here are some of the conditions required to fit Delaware’s redevelopment law's definition of a “blighted area” (31 Del.C. Section 4501):

The generality of buildings used as dwellings, or the dwelling accommodations therein, are substandard, unsafe, unsanitary, dilapidated or obsolescent…

The discontinuance of the use of buildings previously used for commercial, manufacturing or industrial purposes, the abandonment of such buildings or allowing them to fall into so great a state of disrepair as to be untenantable…

A growing or total lack of proper utilization of areas caused by the condition of the title, ... tax or special assessment delinquency exceeding the fair value of the land, or the existence of conditions which endanger life or property by fire or other causes and other conditions, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.

In contrast, here’s how the Institute for Justice described the Lakewood study used to support the city’s plans:

The homes do not have major structural deficiencies, so the study had to use something else to find “blight.”  The study’s “blighting factors” include:

  • lack of a two-car attached garage,

  • less than two full bathrooms,

  • less than three bedrooms,

  • too-small homes (less than 1,400 square feet) and

  • too-small yards (less than 5,000 square feet of lot size).

The study counted weeds and sidewalk cracks as site condition deficiencies.  And it found homes “economically obsolete” if they were valued at less than $75 per square foot. [notes omitted].

These descriptions fit most of the homes in Lakewood, including the mayor’s and those owned by each member of the City Council.

The descriptions don’t fit any rational definition of the word “blight”.

Redevelopment proposals are a good example of a potentially beneficial government program that can also go horribly wrong. (Can you say Pruitt-Igoe? Sure you can.).

With so many cautionary tales about these projects in the last half-century, one would think that most governments would be fairly careful about using this special condemnation authority.

Lakewood and cities with similarly odd notions of what’s actually blighted may be the exceptions that prove that point.

Let’s hope the judiciary (and perhaps the upcoming election cycles) put a stop to this nonsense.

Thanks, Charles!

September 29, 2003
The root of crime, as it were

According to the Associated Press this morning, a Rhode Island man called the police to report that someone stole a statue of Mr. Potato Head from his lawn.

The search is continuing for the six-foot tall rendition of the famous spud.

If they catch the guy that did this, I hope they fry him.

The thief, that is.

September 29, 2003
Pump it up

A new environmental project in Delaware shows promise toward eliminating the fish kills and accompanying godawful smell that sometimes plague the man-made lagoons on the edges of Rehoboth Bay. If it works, the technology could be adapted to similar estuary environments with the same problem.

Six large solar-powered pumps will be placed into two man-made lagoons:

In a typical fish kill, schools of fish swim into oxygen-poor "dead spots" in the canals and die. The pumps would circulate water from the bottom to the top of the canals to increase oxygen levels and eliminate the dead spots.

The project is the latest effort to solve water quality problems in man-made canals off Rehoboth, Indian River and Little Assawoman bays that have killed millions of young fish in recent summers.

According to a story by Molly Murray in the News-Journal today, a citizens group is working with the local conservation district, the Center for the Inland Bays, Federal and State environmental officials, and the College of Marine Studies of the University of Delaware.

The six pumps will cost just under $200,000, and their performance will be monitored for twelve months.

For the sake of the local residents, I certainly hope this plan works.

On the other hand, there is no truth to the rumor that these pumps will look just like divers or treasure chests.

September 28, 2003
Ms. Mayes builds her dream villa

Movies that use a home restoration project as a comedic plot device to reveal personal change have a long history.

One of the best of this limited genre is the 1948 gem, Mr. Blandings Builds His Dream House, starring Cary Grant and Myrna Loy.

The updated version in 1986, The Money Pit, featured Tom Hanks and Shelley Long in an unfortunately weak adaptation.

This year's version shifts the action to Tuscany, in a fictionalized treatment of Under the Tuscan Sun.

Diane Lane plays Frances Mayes, a mid-thirties San Francisco writer with a failed marriage, the now-obligatory gay buddy, and a face to die for.

Her entirely convenient profession as a writer permits Mayes to use her divorce-generated proceeds from the real estate run-up in America's favorite Left Coast city to buy and restore a semi-run down Italian villa, without the normal wrenching consequences of such a move.

Mild hilarity ensues.

The movie also generated these comments from the crowd with whom we saw it last night.

Several folks wondered exactly what was the point of adding the David Sutcliffe character at the end of the movie, except as eye candy for a TV-savvy audience. His plot role was not at all necessary to complete the story. Everyone felt that the movie could have ended about five minutes sooner, without his presence, and it would have been an improvement.

This is not to knock Sutcliffe, who handled his modest duties in perfectly acceptable fashion, but simply to point out how a bit more editing could have improved this lightweight movie.

Raoul Bova's character, Marcello, is the object of Mayes' eventual affection, for obvious hunky Italian stud reasons. On the other hand, I also thought he had a great scene in which he gently reminds Mayes that it takes more than intentions to maintain a relationship. The fact that he has to tell her this might explain her marriage troubles more than she's shown to realize.

The women in our group unanimously oohed and aahed over Vincent Riotta in the role of the real estate agent, Mr. Martini.

Everyone loved the scenery, which was uniformly gorgeous. The Italian Chamber of Commerce/Tourism Bureau should be very pleased with the number of tourists this movie will most likely inspire.

Tuscan Sun was a pleasant diversion, with nary a trace of profound thought interfering with the main flow of the story.

Not that there's anything wrong with that, of course.


   

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
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fschranck-at-
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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

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© Frederick H. Schranck 2002-2003