Kelo ruling looks even worse

Erik Mesoy

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Brief history lesson, since the original case was a while back:
Susette Kelo, et al. v. City of New London, Connecticut, et al., often abbreviated to 'Kelo v. New London' or just 'Kelo', was a case regarding the Fifth Amendment's Takings Clause:
No person shall be [...] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
and the related power of eminent domain, which may be summed up as the state's ability to force someone to sell at a certain price (which may be zero).
In Kelo, the Supreme Court held 5-4 (Stevens, joined by Kennedy, Souter, Ginsburg, Breyer) that "public use" covered "economic development", in other words that Susette Kelo's land could be em-domained to sell it to a corporation that would use it to create jobs and tax revenue.

Various people were rather pissed about this.

Now it looks as though the economic development isn't even going to happen.

Susette Kelo's little, pink house in New London, Conn. -- like the houses of all her neighbors -- is now a pile of rubble, overgrown with weeds. But Pfizer, the company that called for the demolition in order to build a new research and development plant, announced Monday it is packing up and leaving town in order to cut costs after its merger with fellow drug-giant Wyeth.

New London now has a wasteland where a neighborhood once stood, and no jobs or business to show for it. It's another travesty of central planning.

In the late 1990s, New London's politicians were desperate to fix up their aging and ailing town. The city revved up a private, non-profit entity called the New London Development Corporation, which went to work drawing up a plan of a new New London.

The central planners decided that their white knight would be Pfizer, already operating a plant across the river in Groton, but looking to build a massive research and development facility. So, the politicians picked a 24-acre lot and sold it Pfizer for $10, adding on special tax breaks. Also, state and local governments promised $26 million to clean up contamination on the lot and a nearby junkyard.

But Pfizer executive David Burnett thought New London needed to do some more cleaning. "Pfizer wants a nice place to operate," the Hartford Courant quoted Burnett in 2001. "We don't want to be surrounded by tenements." The old Victorian houses in the Fort Trumbull neighborhood next door did not match Pfizer's vision - a high-rise hotel or luxury condominiums would be more fitting.

So, the development corporation, empowered with eminent domain by the city government, cleared out the Fort Trumbull neighborhood, condemning the homes of anyone who wouldn't sell at its appraised value. Kelo, and other residents who didn't want to move, sued to block the condemnation. They lost, but they fought all the way to the U.S. Supreme Court.

There, the four liberal justices joined with moderate Anthony Kennedy to rule in favor of the developers -- the takings were perfectly legal.

The Court cited the redevelopment plan's "comprehensive character" and the politicians' "thorough deliberation." Justice John Paul Stevens wrote, "The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue."

The New York Times, long a fan of eminent domain among other big-government tools (after all, the paper had recently scooped up its Times Square property through eminent domain), applauded the ruling as "a setback to the 'property rights' movement," (note the scare quotes) and explained: "New London's development plan may hurt a few small property owners, who will, in any case, be fully compensated. But many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs."

Phrased that way by a liberal editorial page, and approved by the liberal arm of the Supreme Court, the takings in New London begin to sound like a great progressive victory: government, triumphing over the exploitive notion of "property rights," helps the many at the expense of a few.

But, New London was really another example of political cronyism and politicians using the might of government in order to benefit well-connected big business at the expense of those poorer and less influential.

Consider that the head of the New London Development Corporation was Claire Gaudiani, who was married to David Burnett, the Pfizer executive who wanted "a nice place to operate." Pfizer vice president George Milne also sat on the development corporation's board. In the courtroom, former development consultant Jimmy Hicks called Pfizer the "10,000-pound gorilla" in the planning process, and said "the entire municipal development plan -- it was related back to Pfizer."

So Pfizer got its loot - free land, special tax breaks, and government-funded clean-up of the neighborhood (including clearing out the unsightly neighbors) - and the area prepared for economic "rejuvenation," as Justice Stevens put it.

It didn't work out that way.

The Fort Trumbull neighborhood Pfizer had bulldozed today consists only of "weeds, glass, bricks, pieces of pipe and shingle splinters," according to the Associated Press. Nobody has built the high-rise hotel or the luxury condos the city's planners had envisioned. The credit crunch and housing collapse took the air of out of that grand plan.

And Pfizer's sparkling R&D facility that was supposed to anchor the city's "rejuvenation?" It's being shuttered as a cost-saving measure following Pfizer's merger with Wyeth. Some of the 1,400 jobs there will move across the river to Groton. Some will be terminated.

The best-laid plans of central planners, it seems, have once again gone awry-unless you look at it from Pfizer's perspective.

The Hartford Courant reports Pfizer may sell the building and the land, which it got for nearly nothing. Or it may lease it out. So, the drug giant still gets the profits from the government's taking. But for New London? No more R&D jobs. No development of Fort Trumbull. Just some rubble where families once lived.

Source
 
Kelo was a bad decision, I agree. The only thing worse than Kelo would be the idiots in New London that apparently suck at urban planning. Or really good at pulling the wool over the eyes of the Court.
 
Isn't this story rather old? I thought we've known for years that the land the state stole was not actually being used.


If I recall this case started was the first of several heated political conversations with my father. I could not comprehend how he thought such use of eminent domain was justified.
 
Yes, it was a bad decision. Also a pretty weird one, as far as I can see. It has also resulted in the change of a number of laws concerning eminent domain.
 
How do the "strict textualists" get around the fact that the Fifth Amendment doesn't prohibit taking property at all, but that it only requires due process and just compensation? Or -- wackier, but part of the plain reading of the clause -- that it allows takings for private use with no compensation whatsoever?

The thing is, Kelo wasn't that much further than Midkiff, which O'Connor wrote (she dissented in Kelo, walking a fine line -- Midkiff is one of a few "certain exigencies" that are allowed). I mean, Midkiff involved express land reform: taking property from wealthy oligarchs and giving it to the people of Hawaii. I can't really see how the argument that justifies that doesn't work for Kelo. Hey, I'm a big liberal -- I'd much rather see land reform than taking someone's property and giving it to Pfizer -- but as a matter of legal principle, I don't know how you attempt to go forward based on her opinions. But, then again, it is Justice O'Connor; no one ever knows how to go forward based on her opinions.

Cleo
 
I find this part weirdest of all:
The New York Times, long a fan of eminent domain among other big-government tools (after all, the paper had recently scooped up its Times Square property through eminent domain), applauded the ruling as "a setback to the 'property rights' movement," (note the scare quotes) and explained: "New London's development plan may hurt a few small property owners, who will, in any case, be fully compensated. But many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs."
The "property rights movement"? What?! Private property is a central part of the rights of this nation. I'm astonished that anybody would call it a "movement".
 
The Birth of the Property Rights Movement

by Steven J. Eagle

Steven J. Eagle is a professor at the George Mason University School of Law and the author of Regulatory Takings (2d ed. forthcoming).

Executive Summary

Over the past century, Americans who own property—homeowners, landlords, businesspeople of all kinds, even nonprofit organizations such as churches and charities—have found themselves increasingly entangled in a web of regulatory restrictions that have limited what they can do with their property. Imposed in the name of an amorphous "public interest," those restrictions have often been unwarranted and severe, resulting in untold personal and financial losses. By century's end they had led to the birth of the property rights movement and to a call for both legislative and judicial redress. The movement is likely only to grow in the 21st century.

America's founding principles are grounded in the idea of private property. It is property, after all, that enables individuals and organizations to exercise their other rights and enjoy the liberty that property affords. With the rise of the regulatory state during the Progressive Era, however, those rights were increasingly compromised, especially after the Supreme Court upheld restrictive zoning in 1926. That decision opened the door to a host of "permitting" regimes—federal, state, and local—the effect of which has been to tell owners that they can use their property only after they have been authorized to do so by government. That placed immense and often arbitrary power in the hands of government, leaving owners to face a long and expensive series of procedural and substantive hurdles before they could enjoy their property rights. Although the Court has checked some of those restrictions in recent years, owners still bear the brunt of the burden of justifying their rights.

To try to address those problems, at least 23 states have enacted laws to protect private property rights. While most require government agencies simply to "assess" whether their actions might impinge on property rights, a few provide for compensation to owners. At the federal level, Congress has considered three forms of legislation: measures that would require such assessments; measures that would provide statutory compensation for certain federal agency actions; and measures that would remove procedural roadblocks that frustrate efforts by owners to challenge federal, state, and local regulations of property. To date, however, none of those federal efforts has succeeded.

The property rights movement needs to continue to build on its successes. To be effective, however, it must adopt a principled approach. It must reunite America with its common law and constitutional heritage, which affirms that individuals have rights in their property and property in their rights. Finally, it must recognize that the ultimate protection for private property will be found in reducing government to its legitimate functions.
Full Text of Policy Analysis No. 404 (PDF, 40 pgs, 220 Kb)

© 2001 The Cato Institute
Please send comments to webmaster

http://www.cato.org/pubs/pas/pa-404es.html
 
Maybe CT should use eminent domain on Pfizer's Groton plant, use the revenue to build Kelo et al's houses back and pay back whatever debt or losses were incurred during the saga.

More seriously, surely there is some way of contractually obliging companies for whom eminent domain is used to benefit to carry out the investment the government was expecting? Or at least to compensate the government and those em' dom'd in the event that that doesn't happen.
 
lol @ America
 
They shouldn't be using ED for commercial purposes in the first place. It's more about the desperation some cities feel for the need to redevelop to revive themselves. But what it amounts to is big money well connected interests using the government to take from others at below the market rate. And by that I mean that if the people were not willing to sell, then by definition the prospective buyer was not offering the market rate.

I think the Coast Guard was also looking to take some property in New London around the same time. But I can't recall the details. And they only wanted to build a museum, not a necessary facility.
 
Who wants to bet that if they hadn't gotten that property and closed down anyway they would have blamed the job losses on not being able to sufficiently expand?
 
Alright then. Then put me on the side of the property rights people.

That's not the whole story. ;) The property rights people also want to eliminate the environmental impact studies of paving over wetlands and the environmental regulations of using your land in ways that negatively effect other people's land. It's corporate interests wrapped up in "liberty" packaging.
 
How do the "strict textualists" get around the fact that the Fifth Amendment doesn't prohibit taking property at all, but that it only requires due process and just compensation? Or -- wackier, but part of the plain reading of the clause -- that it allows takings for private use with no compensation whatsoever?

The thing is, Kelo wasn't that much further than Midkiff, which O'Connor wrote (she dissented in Kelo, walking a fine line -- Midkiff is one of a few "certain exigencies" that are allowed). I mean, Midkiff involved express land reform: taking property from wealthy oligarchs and giving it to the people of Hawaii. I can't really see how the argument that justifies that doesn't work for Kelo. Hey, I'm a big liberal -- I'd much rather see land reform than taking someone's property and giving it to Pfizer -- but as a matter of legal principle, I don't know how you attempt to go forward based on her opinions. But, then again, it is Justice O'Connor; no one ever knows how to go forward based on her opinions.

Cleo

Read the bits that are highlighted, by Erik. Clearly there has to be just compensation. Clearly there has not been any just compensation in this case and the government of New London is feeling the effects of not following what the constitution says. If you give just compensation and the person does not want to move, then you should not be able to deprive them of property, so this ruling should not stand since it goes against the constitution. I certainly believe that Moden Day America is not the vision of America the founding fathers had in mind when they formed that nation.
 
A terrible and tragic decision indeed. Although I recgnise that ED is on some cases necessary, it should be used with extreme care and after long consideration. And never for private interests!
 
It would be neat to see an even bigger company find a nice Pfizer office and tell the local government that they can create even more jobs if they used eminent domain to take it and give it to them!
 
That's not the whole story. ;) The property rights people also want to eliminate the environmental impact studies of paving over wetlands and the environmental regulations of using your land in ways that negatively effect other people's land. It's corporate interests wrapped up in "liberty" packaging.
In that case, I'm not with that particular group of people. So nevermind.
 
Read the bits that are highlighted, by Erik. Clearly there has to be just compensation. Clearly there has not been any just compensation in this case and the government of New London is feeling the effects of not following what the constitution says. If you give just compensation and the person does not want to move, then you should not be able to deprive them of property, so this ruling should not stand since it goes against the constitution. I certainly believe that Moden Day America is not the vision of America the founding fathers had in mind when they formed that nation.

Wait, why are you bringing the founding fathers into it? The power of governments to take private real or personal property is an inherit attribute of sovereignty. The constitution didn't create the power of eminent domain - it simply limited the federal government to provide just compensation if the taking of land is for public use. It wasn't even until the fourteenth amendment when this was applied to the states. The Supreme Court has also consistently deferred to the right of states to make their own determinations of public use. For example:

For instance, in 1832 the Supreme Court ruled that eminent domain could be used to allow a mill owner to expand his dam and operations by flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit.[6] In Clark vs. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of public use thus varied with the facts of the case. It ruled a farmer could expand his irrigation ditch across another farmer's land (with compensation), because that farmer was entitled to the "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters... [is] a public use." Here in recognizing the arid climate and geography of Utah, the Court indicated the farmer not adjacent to the river had as much right as the farmer who was, to access the waters.

If you give just compensation and the person doesn't want to move, tough luck - if the eminent domain taking is legal (as set forth by the legislature) then the government has the right to take the land. The entire point is that consent is not needed.
 
Isn't this story rather old? I thought we've known for years that the land the state stole was not actually being used.


If I recall this case started was the first of several heated political conversations with my father. I could not comprehend how he thought such use of eminent domain was justified.
I'd say it would have been justified enough, had the plan actually materialized. Mistake here was not the application of eminent domain per se, but the fact that city did not secure contracts with Pfizer, to guarantee they'd really fulfill their end of the deal or pay adequate penalties. In such PPP, the risks should be fairly distributed between city and developer, in this case is seems the latter took none while city paid for everything.
Smells like corruption or glaring incompetence. But the victim here is not Susanne Kelo, who seems to have gotten a just compensation, but rather other residents of the city, whose tax dollars were spent on a purchase which turned out to be useless.
 
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