Law & the Courts

Ten Years Later, the Seizure of Private Property in Kelo Hasn’t Done Anything for the Public

Ten years Tuesday, the U.S. Supreme Court upheld the City of New London’s seizure of nine residents’ private homes, deciding that economic development and higher tax revenues are close enough to “public use” to satisfy the takings clause of the Fifth Amendment, which stipulates, “Nor shall private property be taken for public use, without just compensation.”

This wasn’t an entirely groundbreaking decision, but it created a huge backlash, drawing attention to abuses of eminent domain. And if you go see what the seizure produced in terms of public use, as NR did recently, it’s easy to see what abuse looks like: Absolutely nothing has come of the project that required the demolition of 15 family-owned properties. In fact, the private nonprofit that was supposed to develop it concedes that the land had geotechnical issues barring development in the first place.

First, some context. Before the 1930s, the Supreme Court shot down several attempts by local governments to transfer property to private corporations, restricting the interpretation of “public use” to the construction of roadways and government buildings. After the New Deal, though, the Court made two landmark decisions, Berman v. Parker and Hawaii Housing Authority v. Midkiff, that loosened the qualifications on what counts as public use — essentially rendering it public purpose, which meant almost anything the government wanted.

RELATED: Kelo v. City of New London Ten Years Later

Until the New London case entered the courts around half a century later, this was the law of the land. “Before Kelo, there was a near consensus among law professors, judges, and other experts that the government should be able to private property for almost every reason it wants,” said Kelo expert and George Mason University law professor Ilya Somin.

While Kelo may look like an abusive decision, it actually may have been a blessing in disguise.

In this sense, Kelo actually may have been a blessing in disguise. A broad swath of Americans – think NAACP and Rush Limbaugh agreeing on something – recoiled at the Court’s decision to let government infringe on property rights in the name of public betterment. In the decision’s aftermath, 45 states passed protective legislation or ballot measures to curb the ever-expanding realm of public use in eminent-domain cases. But despite that progress, the decision still holds — generally.

Justice Kennedy’s concurring opinion added the caveat that “there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits so trivial or implausible, that courts should presume an impermissible private purpose.” 

Just how “permissible” should the Kelo decision have been? NR went to New London recently to find out.

Today, the land taken is overgrown with weeds and bushes, empty except for a handful feral cats and the ten-year-old ghost of the waterfront neighborhood of Fort Trumbull, where Susette Kelo and the eight other plaintiffs lived

RELATED: Playing Monopoly in New Jersey: Can the State Seize a Private Home Simply Because it Wants To?

Adjacent to the now-demolished neighborhood, facing Long Island Sound, is its namesake, built in 1777 to protect the residents of New London from British forces during the Revolutionary War. The fort eventually fell to the British, exposing homes to attack. A couple hundred years later, it seems the fort couldn’t keep Kelo’s neighborhood intact either.

Fort Trumbull was a closely knit community of largely blue-collar Italian-American families. The Cristofaros had lived in the area since the 1970s. Five generations of Derys had lived there since they emigrated from Italy in 1895. Wilhelmina — matriarch of the family and loving grandmother of the youngest Dery — died during the stressful litigation process, in the house being taken away from her. And Susette Kelo, the face of the case, had lived in a little pink Victorian-style house since 1997.

Susette Kelo’s relocated house in New London

They all loved their homes, many of which they fixed up by hand. So when the city forced them to leave, the consensus was, in the words of one of the homeowners, that this exercise of eminent domain was “robbery in the guise of economic development.”

But perhaps as compelling a narrative was the one that inspired the city to take over Fort Trumbull: New London was a town in economic depression, under financial duress, out of alternatives. In the late 90s, New London’s unemployment rate was twice that of the state as a whole, and residents were leaving in the largest numbers the city had seen since 1920.

RELATED: Colorado Couple May Lose Home in ‘Open Space’ Eminent Domain Seizure

When the pharmaceutical company Pfizer built a plant nearby in 1998, though, the city of New London saw a chance to turn things around, and focused on catering to the company’s needs in order to raise tax revenue. The city’s big win in Kelo added both land and momentum to the development plan of the New London Development Corporation (NLDC), a nonprofit intended to convert 90 acres of land into an urban hub of modern condos, a hotel, and offices. The proposal planned to create more than a thousand jobs, increase tax revenue by tens of millions, and attract businesses both large and small.

A decade after it expelled Kelo et. al. from their homes, the NLDC still has nothing in the name of economic development to show for itself.

But in 2008, the Great Recession hit the shores of Connecticut. Pfizer left New London the following year, and unemployment in the city skyrocketed, slowing the NLDC’s plans. As the recession passed, things did start looking up: A defense contractor called General Dynamics moved into the empty Pfizer facility, bringing far more employees than the drug company had. Yet a decade after it expelled Kelo et. al. from their homes, the NLDC still has nothing in the name of economic development to show for itself.

This is especially appalling because the Kelo lots weren’t even crucial to the NLDC plans. Throughout the litigation, the city maintained that one of the two parcels in dispute in Kelo was slated for “park support,” a vague neologism, coined but never clarified by the NLDC. Although the Supreme Court did not address this issue, the Connecticut supreme court declared this use unreasonable, on the grounds that the proposal seemed like it could be reworked to save the plaintiffs’ homes.

Scott Bullock, the lead litigator for the plaintiffs, tells National Review that not only were these takings avoidable, but that the NLDC crafted a plan that prioritized preserving the nearby Italian Dramatic clubhouse over the Fort Trumbull homes. “The club is a very well known hang-out area of the political elite including the NLDC,” he says. “Somehow they found a way to keep the social club but the homes were destroyed. And the land they ended up taking wasn’t of any use to them anyway.”

NLDC spokesman Karl-Erik Sternlof concedes that the Kelo parcel has little developmental value, telling NR, “It’s pretty much all ledge. It has significant geotechnical issues for being a development track.”

In April of this year, the current mayor of New London, Daryl Finizio, introduced a plan to construct a memorial park for the Fort Trumbull residents on the parcel, but Sternlof says that the idea was shot down in its early stages, citing a few fundamental disagreements with the mayor. Instead, he says the parcel will be “related to the beautiful state park nearby,” not elaborating on the specifics of what that might mean.

More empty Kelo land

The NLDC does, however, have a plan to convert the second Kelo parcel into an apartment complex. Sternlof estimates that the project, if it’s completed, will cost $20 to 25 million, and create a “substantial tax benefit.”

But Bullock says this is no reason to celebrate. “Here we are ten years after the decision, “ he says, “and the NLDC is talking about putting a lesser version of what was there — a neighborhood — at the expense of millions of taxpayer money.”

When asked for better alternatives, he joked, “A memorial isn’t the answer either.”

“The NLDC should offer the lots to the original home owners and give them the first right to buy the land. If they choose not to do that, let the market decide what is to be built rather than centrally planning development subsidized with taxpayer money,” he says.

In the likely case that the NLDC never relinquishes its property, sympathizers can take whatever solace they can find in the one victory of the case: Instead of being razed like the other Fort Trumbull homes, Susette Kelo’s little pink house was moved a few blocks away, where it still stands today as a monument to the hundreds of thousands of Americans — especially low-income minorities — who have been displaced by aggressive use of eminent domain.

When I was looking at the little pink house from the street, a man came up to me and told me he used to paint it when Susette lived there. “Odessa Rose” was the paint color, he claimed. When I asked how the decision on Kelo affected him, he said, “I knew a lot of the folks who lived in those houses.” He paused, looked me directly in the eye, and continued: “The city killed them.”

Ten years since Kelo, there isn’t much to show for the violence.

— Shubhankar Chhokra is an intern at National Review.​

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