By Gideon Kanner
There they go again. With rhythmic regularity of the tides, the Los Angeles Times regales us with stories of assorted legal misdeeds said to be perpetrated by the government of Israel upon the long-suffering Arab population in connection with land-use. But as noted in some of my earlier columns, upon analysis, the "atrocity" du jour can turn out to be a garden-variety land-use dispute in which the Israelis conduct themselves the same as we do over here. Case in point, a recent lamentation by Saree Makdisi, a professor of English at UCLA ("A Museum of Tolerance We Don't Need", L.A. Times, Feb. 12, 2010). In it, Makdisi deplores the fact that the Israelis are about to build a local branch of the Museum of Tolerance on a three-acre site in West Jerusalem that was once used as an Arab cemetery, but as it turns out, has been a parking lot for years. His complaint is that this is being done in disregard of the sensibilities of the local Arab population.
Putting legalities aside for the moment, this complaint turns out to be breathtakingchutzpa on Makdisi's part because in 1948, when the Jordanian Arab Legion crossed the Jordan River, invaded Israel, and conquered East Jerusalem's Jewish Quarter, the Arab legionnaires desecrated Jewish cemeteries, uprooted grave stones and used them to build latrines, with no concern shown for the sensibilities of the Jewish population that had been living there for centuries.
In this instance, the Los Angeles Times ran a counterpoint op-ed by Rabbi Marvin Hier ("A Proper Site For a Museum of Tolerance," L.A. Times, Feb. 12, 2010) from which we learn that the "cemetery" in question has been abandoned for a long time, and has been used for years as a municipal parking lot, without a peep of protest from local Arabs or anyone else. In fact, in 1946 local Arabs proposed to build a Muslim university on it. Hier notes that the Israel Supreme Court stressed in its opinion rejecting a legal challenge to the construction of the museum, that "for almost 50 years the compound has not been a part of the cemetery...and it was used for various public purposes," adding, "During all those years no one raised any claim, on even one occasion, that the planning procedures violated the sanctity of the site, or that they were contrary to the law as a result of the historical and religious uniqueness of the site.... For decades this area was not regarded as a cemetery by the general public or by the Muslim community.... No one denied this position."
It may be useful to take a look at what our law has to say about reuse of cemeteries. For one thing, cemeteries are routinely taken by eminent domain for other uses. There is even an old English vaudeville song entitled "They're Movin' Father's Grave to Build a Sewer" - you can hear a recording of it by the Clancy Brothers. Even as I write, the ink has barely dried on an Illinois court decision allowing Chicago to take a cemetery for the expansion of O'Hare Airport (Art Barnum, "Chicago Wins Cemetery Land for New O'Hare Runway," Chicago Tribune, Feb. 8, 2010). But you won't find any lachrymose Los Angeles Times op-eds decrying the affront to the "sensibilities" of those Illinois folks. Closer to home, California has litigated this business up one side and down the other, in state and federal courts, so that our law is clear that though cemetery land may be consecrated, it is not immune to being taken for other uses.
For example, California Health & Safety Code Section 8560 prohibits the taking of cemetery land for highways. But that has not stopped CalTrans from acquiring condemned cemetery land for a freeway. You doubt it? Then check this out. Back around 1960, CalTrans decided to put Interstate 5 through the Eden Memorial Park cemetery in the North San Fernando Valley. At first, it looked like the law might actually be followed when the Court of Appeal held that the Legislature was free to allow or disallow takings for any public purpose it saw fit, and therefore CalTrans was powerless to take any part of the cemetery land for a freeway. (Eden Memorial Park Assn. v. Dept. of Public Works (1961) 189 Cal.App.2d 421). The California Supreme Court denied hearing, and that seemed the end of that. Or was it?
Having once obtained an injunction against the construction of a freeway (Sherwood v. Bradford, (S.D.Cal. 1965) 246 F.Supp. 550) I claim a modest insight into such matters, and I surmise that at first, the consternation at CalTrans following the Eden Memorialruling must have rivaled the reaction of European monarchs when they realized that - gasp! - they did not actually rule by divine right. But after recovering from the initial shock of hearing a California court say "No," the CalTrans folks figured out that there is more than one way to skin a cat. So they went whining to the feds, and Uncle Sam rode to the rescue. Before you could say "isn't CalTrans a creature of state law, and as such lacks the power to acquire land condemned in disregard of state laws?" - the feds filed a condemnation action in federal court, and relying on 23 U.S.C. Section 107 (allowing federal takings of land for federally financed state projects), took the right of way right through Eden Memorial Park. United States v. Eden Memorial Park Assn. (9th Cir. 1962) 432 F.2d 432 (right to take), and (9th Cir. 1965) 350 F.2d 933 (valuation).
Was that the end of it? Not quite. The property owners sought to enjoin state officials from accepting title from the feds, arguing that this was a subterfuge, but the California Supreme Court ruled against them, thus de facto holding that CalTrans was free to violate California law, as long as it used the feds as its stalking horse. Eden Memorial Park Assn. v. Dept. of Public Works (1963) 59 Cal.2d 412.
By now, you may think that I am telling you more about takings of cemetery land in California than you ever wanted to know, whereas this column was supposed to be about the Middle East. So let's get back to the point, which is that Makdisi's lamentations about the Israelis' effort to build a museum on a Jerusalem parking lot, fail to note that what he depicts in a California newspaper as Israeli wickedness is fully consistent with our law, and - like it or not - no atrocity at all. Remember that in theEden Memorial Park litigation, the owners had a stronger claim than those Jerusalem Arabs because they owned a cemetery, not a parking lot, and relied on a statute that explicitly forbade the taking of cemetery land for roads. In contrast, there appears to be no such counterpart legislation over there, and a parking lot is, well, a parking lot, even if it once served as a cemetery. More important, the Jerusalem controversy is not even a condemnation case - the land in question is already publicly-owned and has been consensually conveyed to the museum.
That leaves one loose end. Though Makdisi does not raise it in his op-ed, what about the fact that in that Israeli controversy the beneficiary of the new land use is a privately owned and operated museum? Would that make a difference over here? No, it would not. See County of Los Angeles v. Anthony (1964) 224 Cal.App.2d 103 (approving the taking of a home for a proposed, privately-owned museum).
And so, when you see a Los Angeles Times op-ed deploring land-use related controversies in Israel, it might be prudent to take it with a large grain of salt. Horror stories of that kind regularly masquerade as Los Angeles Times op-eds that upon examination can turn out to be distorted depictions of run-of-the-mill acts of land-use governance, rather than some sort of exotic atrocities. As the late Senator Pat Moynihan once put it: everybody is entitled to his own opinion, but not to his own facts.
Gideon Kanner is professor of law emeritus at the Loyola Law School, and of counsel to Manatt, Phelps & Phillips.