Not for Sale

The little pink house that sparked an eminent domain revolution

Scott G. Bullock | June 23, 2008

The little pink house that was the centerpiece of the U.S. Supreme Court's infamous Kelo v. New London decision is standing once again. The house, moved from the now destroyed Fort Trumbull neighborhood, will stand as a monument to the bravery of Susette Kelo and her neighbors, and to the thousands of others who have battled and are battling the abuse of eminent domain across the country. In contrast, the project for which the City of New London forced out its citizens is dead in the water.

Today marks the three-year anniversary of the Court's ruling, easily one of the most despised decisions in the Court's history. In Kelo, the Court, by a narrow 5-4 margin, ruled that New London could take homes and small businesses to give to a private developer in the name of "economic development." The case caused a nationwide backlash against eminent domain abuse, resulting in judicial decisions, citizen activism, initiatives, and legislation in favor of property owners.

Since Kelo, two state supreme courts have explicitly rejected the decision, while another three have questioned the validity of the decision under their respective state constitutions. As cases come before them, more state courts are likely to do the same.

Moreover, there has been massive public awareness brought to the issue of eminent domain abuse. Although there was growing concern about the issue and some awareness before Kelo, after the decision, just about every reasonably well-informed person in the country now knows about the issue—and a vast majority of them oppose eminent domain for private development.

This significant public opposition to eminent domain abuse has led to a complete change in the Zeitgeist on the issue. While public officials, planners, and developers in the past could keep the condemnations for private gain under the public's radar and thus usually get away with the seizure of homes and small businesses, that is no longer the case. Property law expert Dwight Merriam notes: "The reaction to Kelo has chilled the will of government to use eminent domain for private economic development."

Also, in a mere three-year period, 42 states have changed their eminent domain laws either through citizen initiative or legislation. About half of these provide strong protection against the abuse of eminent domain and virtually all of them represent an improvement over the truly terrible eminent domain laws that were on the books before Kelo.

Even more remarkably, eminent domain reforms have been passed despite the fact that powerful interest groups—developers, municipal officials, and planners—have fought desperately to preserve their power. Certainly, much work remains to be done. For example, Connecticut, home of the Kelo decision, has passed no substantive reforms even though it has one of the most sweeping laws in the country authorizing eminent domain for private commercial development. Likewise, its neighbor, New York, has rampant eminent domain abuse and a legislature that refuses to act. For anyone who cares about property rights, what has happened post-Kelo, however, is a classic example of losing the battle but winning the war.

Meanwhile, a mile away from the pink house's new location, history is repeating itself in the Fort Trumbull neighborhood. Urban renewal, backed by eminent domain and taxpayer subsidies, has a sad and dispiriting history over the past 50 years, resulting in the destruction of poorer neighborhoods, and their replacement with failed or underperforming newer projects.

New London's Fort Trumbull project has so far been an unmitigated disaster. Despite the infusion of close to $80 million in taxpayer funds and three years elapsing since the Kelo decision, there has been no new construction in the area whatsoever. The preferred developer for part of the site, Corcoran Jennison, just missed its latest deadline for securing financing for building something—anything—on the site of the old neighborhood. The developer was so desperate for funding that it applied to the federal Housing and Urban Development agency to obtain taxpayer-subsidized loans to build luxury apartments in the area. Even the former editor of the local newspaper, who was a strong supporter of the project from its inception, admitted this month, "The city is unlikely to get much new tax revenue anytime soon in Fort Trumbull and a hotel [the supposed centerpiece of the project] is at least five years away, if at all."

Although Susette Kelo and her neighbors endured a tragic loss of their neighborhood, they can take comfort in the fact that they have left a legacy of real change and inspiration for millions of other property owners throughout the nation. On June 21, a ribbon-cutting ceremony and party was held at the little pink house, celebrating the fact that it will still be a home, and one that changed the nation for the better.

Scott Bullock is a senior attorney at the Institute for Justice, the non-profit, public interest law center that litigated the Kelo case. Bullock argued the case before the Court.

Comments

|6.23.08 @ 3:38PM|#

But, but, but,

Public officials, planners, and developers surely know what is best for the community. You folks are what I call regressives, the opposite of progressives. Without eminent domain property owners will be able to hold onn to their property until they get an offer that they find acceptable. We can't have that.

It is much better for the collective community if the government determines the value of the land. Who would know better, an ignorant, overly sentimental, often greedy property owner or public spitited city officials, unbiased judges and the campaign contributers conscientous developers they golf and go to parties with?

Economic deveopment will cease if this necessary tool for urban development is cast aside.

I will conclude by calling out the traitors who wanted to handcuff government officials who only want to better their mununcipality.
Justice Sandra Day O'Connor was joined in her dissent by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

If you'll excuse me, I have to go puke and shower now.

short, fat bastard|6.23.08 @ 3:50PM|#

New London's Fort Trumbull project has so far been an unmitigated disaster. Despite the infusion of close to $80 million in taxpayer funds and three years elapsing since the Kelo decision, there has been no new construction in the area whatsoever. The preferred developer for part of the site, Corcoran Jennison, just missed its latest deadline for securing financing for building something-anything-on the site of the old neighborhood. The developer was so desperate for funding that it applied to the federal Housing and Urban Development agency to obtain taxpayer-subsidized loans to build luxury apartments in the area. Even the former editor of the local newspaper, who was a strong supporter of the project from its inception, admitted this month, "The city is unlikely to get much new tax revenue anytime soon in Fort Trumbull and a hotel [the supposed centerpiece of the project] is at least five years away, if at all."

I keep waiting for the punch line.

Where's joe to tell us the truth and show us the way to salvation?

|6.23.08 @ 3:51PM|#

I like the idea of eminent domain. Maybe we could (for the good of the people) relocate the supreme court justices to a few double-wides in a trailer park and convert the former court building into something useful, like a big Starbucks.

|6.23.08 @ 3:53PM|#

Jamie Kelly, were he the editor of this newspaper three years ago: "Put that fucking story on Page One! This Supreme Court decision is monumental in its outrageous assault on basic liberties!"

What actually happened three years ago: Story ran on Page 8 -- all 10 column inches of it.

I fucking hate being surrounded by liberals.

|6.23.08 @ 3:56PM|#

Where's joe to tell us the truth and show us the way to salvation?

He's praying to his phony god on how best to annoy people of principle.

|6.23.08 @ 3:59PM|#

Thanks to Reason, I'm still skeptical.

|6.23.08 @ 4:08PM|#

Three years ago today, Susette Kelo lost the fight to save her property from eminent domain abuse. But as the Institute for Justice's Scott Bullock argues, while she may have lost the battle, her allies are slowly winning the war.

Very small consolation to know that the project for which your house was taken by force has not come to fruition. Thievery is still thievery.

Paul Sherman|6.23.08 @ 4:10PM|#

While we're on the subject, Susette Kelo is asking 10,000 people to step up and donate - just $5 or $10 - today to send a message to those in power that eminent domain abuse must be stopped. Visit http://www.ij.org/keloday TODAY to join the Susette Kelo Liberty Club. If you have already pledged to donate, please go to that site and make your donation. And be sure to ask your friends and family to do the same! Thank you!

|6.23.08 @ 4:13PM|#

Where's joe to tell us the truth and show us the way to salvation?

joe has never to my recollection (going back three years to the original decision) argued that the Fort Trumball project was a good project. Arguing that the Constitutional basis for a SCOTUS decision is sound does not put one in bed with every government endorsed planning project that involves eminent domain.

short, fat bastard|6.23.08 @ 4:19PM|#

joe has never to my recollection (going back three years to the original decision) argued that the Fort Trumball project was a good project.

No but he has argued that eminent domain for economic development was sound.

Arguing that the Constitutional basis for a SCOTUS decision is sound does not put one in bed with every government endorsed planning project that involves eminent domain.

Yes it does.

Just like being one of the rare posters that said that the second Iraq war was legally justifiable under the existing UN resolutions, I must now live with the total fuck-up that that war became.

|6.23.08 @ 4:31PM|#

Just like being one of the rare posters that said that the second Iraq war was legally justifiable under the existing UN resolutions, I must now live with the total fuck-up that that war became.

Unlike public policy, SCOTUS decisions are not supposed to be results oriented. Unless, apparently, you don't like the results.

|6.23.08 @ 4:36PM|#

short, fat bastard,

I was the first person ever to post a comment in opposition to the Fort Trumball Plan on this site, having realized what a lousy plan it was back in the late 90s, when I was in planning school.

Don't feel bad, though. You're certainly not the first person who can't follow my arguments.

|6.23.08 @ 4:37PM|#

No but he has argued that eminent domain for economic development was sound.

Nope.

Is there something you'd like to ask me, or should I just keep enjoying the show?

short, fat bastard|6.23.08 @ 4:41PM|#

I was the first person ever to post a comment in opposition to the Fort Trumball Plan on this site, having realized what a lousy plan it was back in the late 90s, when I was in planning school.

Actually, that is completely irrelevant to whether or not the constitution allows eminent domain to be used for the Fort Trumball Plan. And I believe you said that the plan was constitutional and that the Supreme Court decided correctly.

You're certainly not the first person who can't follow my arguments.

And no one excels at side-stepping questions the way you do.

|6.23.08 @ 4:45PM|#

And I believe you said that the plan was constitutional and that the Supreme Court decided correctly.

And that is irrelevant unless you believe in results oriented court decisions.

|6.23.08 @ 4:48PM|#

Actually, that is completely irrelevant to whether or not the constitution allows eminent domain to be used for the Fort Trumball Plan.

What it is relevant to, Mr. Bastard, is your statement "Where's joe to tell us the truth and show us the way to salvation?" in response to a description of the actual effects - and not, as the quote you pasted makes pretty clear - its constitutional standing.

And I believe you said that the plan was constitutional and that the Supreme Court decided correctly.? And, strike three. I wrote that I thought O'Connor's dissent was the right decision. I did, however, argue that Thomas's dissent was simply wrong on the facts and history.

|6.23.08 @ 4:48PM|#

Stupid joke name.

|6.23.08 @ 4:50PM|#

MP,

Look, there are good guys and bad guys, and what the goods guys want is, by definition, what's constitutional.

Short, fat bastards don't need your fancy-shmancy "factual accuracy" and "legal principles" and "knowing WTF you're talking about."

joez bad, mmm-kay?

robc|6.23.08 @ 5:02PM|#

Most people dont screw up and use the joke name 3 times.
two seems 1 too many too.

|6.23.08 @ 5:05PM|#

Maybe someone can refresh my memory, but wasn't the case before SCOTUS whether or not the local court had the authority to make the decision, not whether the decision itself was constitutional or not?

So, should local courts make these decisions (rightly or wrongly), or not?

|6.23.08 @ 5:08PM|#

robc, I'd even changed it back, and the squirrels posted it.

And then changed it back.

Only one window and tab open, too.

|6.23.08 @ 5:10PM|#

but wasn't the case before SCOTUS whether or not the local court had the authority to make the decision, not whether the decision itself was constitutional or not?

No. It was a straight up fifth amendment decision. Read it here.

|6.23.08 @ 5:11PM|#

rditmars,

The Kelo case was about whether the state legislature had the authority to decide if the taking was constitutional, not the state courts.

It wasn't a state-vs.-federal issue, but a judicial vs. legislative issue. The Court ruled that the legislature had almost unlimited lattitude to define "public use," and chose not to impose any standards at all on that decision.

short, fat bastard|6.23.08 @ 5:18PM|#

joe | June 23, 2005, 12:56pm | #

As a matter of fact - not to let those get in the way - the majority specifically found, as part of the longstanding precendents that surround takings law, that transferring property from A to B in for the purpose of enriching B violates the Constitution, and that the government must show that its actions are being done in the pursuit of a public purpose, distinct from the benefits that will accrue to the new owner.

This is why O'Connor, the dissenting hero, approving cites the private-to-private takings that created the railroads - because of the public benefit that would accrue from having a system of passenger and freight conveyance. And why she approvingly cited Berman, which justified private-to-private takings for the purpose of alleviating extreme poverty, and Midkiff, which justified private-to-private takings for the purpose of creating a better, freer real estate market (which had previously been a plantation oligarchy, in which 22 people owned 79% of the land).

And, strike three. I wrote that I thought O'Connor's dissent was the right decision.

Yes you did.

However, I disagree with O'Connor.

So we'll leave it at that.

|6.23.08 @ 5:19PM|#

SCOTUS position malreported Kelo rectify

|6.23.08 @ 5:29PM|#

BTW, whatever happened to the movement to dislodge Souter from his vacation property under ED and build a hotel/museum?

economist|6.23.08 @ 10:03PM|#

Eminent domain, in all its forms, is legalized theft. That's all I have to say.

Wingnut|6.23.08 @ 10:06PM|#

joe 12:56
joe supports government deciding how a person's property might best be used whenever he agrees with the government's assessment. If the property owner disagrees, then he is a greedy wingnut

|6.24.08 @ 12:08PM|#

It's encouraging that I've reached the point where people who want to pick fights with me hide behind aliases.

Chad|6.25.08 @ 7:02AM|#

For all the Kelo-haters here:

How exactly is anyone ever supposed to build a major project in a city WITHOUT eminent domain? A single stubborn or greedy hold-out can wreck the entire process. It is obvious that in principle, the last hold-out could demand essentially the entire economic pay-off to the project for themselves, creating a massive incentive to hold out for far more than your property is worth. This is compounded by simple bull-headedness and irrationality. Numerous studies have shown how people value things far more once they think they own them that they do when given the opportunity to buy them.

It is one thing to insist people get a fair value for their homes (and compensated for the hassle of moving). It is another to defend the guy who knows he holds the last peice of the puzzle and is demanding many times its fair value.

Robert|6.25.08 @ 7:59PM|#

Yeah, yeah. And primogeniture was a great advance because the fiefdom wasn't divided inefficiently among the descendants into smaller plots.

Why do existing cities ever need "a major project" that is just a private business like an Ikea? What's wrong with the subdivisions that resulted from the spontaneous order of the market?

Robert|6.25.08 @ 8:02PM|#

You want a big lot? Assemble one in a run-down area of abandoned properties or other bargains. You turn it into a good location if your development idea's so great. If the last few get wind of it and hold out for a bigger price, who cares? If the lots are that cheap and your idea is that good, paying them double is a small expense and they'd be idiots to turn it down.

Chad|6.25.08 @ 10:05PM|#

Why do existing cities ever need "a major project" that is just a private business like an Ikea?

Because people like them and want them. People travel from all over my state to the Ikea that opened up a couple years ago. I never heard of anyone traveling across state to a run-downed part of town.

What's wrong with the subdivisions that resulted from the spontaneous order of the market?

$4 gallon gas. Next question please.


You want a big lot? Assemble one in a run-down area of abandoned properties or other bargains.

Yep, and some jackholes refuse to sell their crap-pile.

If the lots are that cheap and your idea is that good, paying them double is a small expense and they'd be idiots to turn it down.

Why would they only hold out for double? They could hold out until I stand to make no profit. And a few stubborn people will simply hold out forever out of some sort of irrational pride.