Property Rights

Give Susette Kelo Her Land Back

Jeff Benedict, author of "Little Pink House," proposes that the City of New London return the land it condemned in the takings that led to the notorious Supreme Court decision in Kelo v. City of New London.

|The Volokh Conspiracy |

Former site of Susette Kelo's house. May 2014. Photo by Ilya Somin.

Jeff Benedict is a prominent reporter and author of Little Pink House, an excellent journalistic account of the events leading up to Kelo v. City of New London, the controversial 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to take homes and other property in order to transfer it to new private owners for purposes of promoting "economic development." His book was recently made into a powerful movie about the case (which I reviewed here). In a recent op ed in The Day (the local paper in New London, the city where the Kelo takings occurred), Benedict proposes that New London return at least some of the land taken from Susette Kelo and her neighbors to the original owners:

It was 20 years ago this month that the City Council authorized the New London Development Corporation to prepare a plan to acquire and redevelop 90 acres on the Fort Trumbull peninsula where the Thames River joins Long Island Sound….

But after acquiring nearly all of the targeted 90 acres, the city and the NLDC took an all-or-nothing approach to the few remaining lots owned by Susette Kelo, where sat her little pink house, and six neighbors. The prospect of jobs and increased tax revenues, the city argued, were "public benefits" worthy of using eminent domain.

In June 2005, by a 5-4 vote, the U.S. Supreme Court agreed.

Here's the rub. Thirteen years after the Kelo decision, after all the condemning and evicting and bulldozing, nothing has been built on the land that was taken. Basically, an entire neighborhood was erased in vain. Meantime, all those vacant lots have become New London's scarlet letter….

Thirteen years of inertia is long enough. For the sake of all parties – the city, the state, and the residents who were displaced – it's time to turn the page and write an epilogue with a far more redeeming outcome…

A good starting point might be to allow the marketplace to decide what makes sense for the barren land that remains rather than trying to continue driving this redevelopment effort from city hall….

But before the city can expect to attract developers and investors with the wherewithal to transform the peninsula, the city must first shed its scarlet letter. The best place to start is by carving out seven contiguous residential building lots – perhaps right along East Street where the pink house once stood – and offering to convey them to Susette Kelo and her six evicted neighbors. The current mayor and City Council are not responsible for the mistakes of the past. But they have the chance to be game changers by formally apologizing and reconciling with the city's displaced residents.

As Benedict points out, the development plan that led to the Kelo takings fell through, and the land remains essentially empty to this day. It would be wrong to say that the property is completely unused. As I described in The Grasping Hand, my own book about the case (which focuses more on the legal and policy issues than Benedict's), a colony of feral cats have taken up residence on the site. Some enterprising locals have built little cat shelters for them.

Improvised feral cat shelter near the former site of Susette Kelo's house. May 2014. Photo by Ilya Somin.

Though it might discomfit the feral cats, Benedict's proposal has much to recommend it. As he explains, it could help effect reconciliation between the city and displaced residents, and potentially make it possible to finally find a productive use for the condemned property.

In the course of conducting research for my book, I interviewed Susette Kelo and other homeowners displaced by the Kelo takings. Most were still very angry about their mistreatment by the City and the New London Development Corporation—not just because of the ultimate outcome of the case, but also because of the extensive harassment they were subjected to in order to get them to sell their land "voluntarily." The compensation they eventually received was not enough to offset suffering endured over a period of several years.

Many of the displaced former residents still live in the region. Benedict reports that Susette Kelo is open to potentially moving back to New London if the City were to return the site of her famous "little pink house," which became a nationally known symbol of the case. I do not know if this is true of the other plaintiffs in the case. But I think many might at least appreciate the conciliatory gesture Benedict advocates. Even if the displaced owners chose not to return after getting their land back, they could potentially sell it to developers or other businesses who could build new homes on the site or find some other productive use for it. At the very least, the outcome is likely to be better than the experience of the last thirteen years, during which this attractive and potentially valuable land has largely gone to waste.

While the Kelo takings were a tragedy for the City of New London and the displaced homeowners, the massive backlash generated by the Supreme Court decision did lead to valuable—even if incomplete—reforms in many states. It also broke the seeming consensus in favor of a broad view of "public use," under which most lawyers and judges believed the Constitution allows the government to take property for almost any reason it wants. Several state supreme courts have repudiated Kelo as a guide to the interpretation of their state constitutions' public use clauses, thereby providing stronger protection for property rights than currently mandated by the federal courts' interpretation of the Fifth Amendment. The Supreme Court might well overrule or limit Kelo in a future decision.

In the meantime, Benedict's proposal can potentially help the participants in the case find some closure, and allow the city to move forward. We can also hope that other communities seeking to promote development will learn from New London's experience, and come to understand that the better way to increase economic growth is to respect property rights and work with local residents, rather than forcibly displacing them.

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  1. Ironically, if the city’s original proposal was to create a vacant field that the public could go on to build feral cat shelters, this would have been an uncontroversial use of the takings clause and there never would have been a Supreme Court case.

    1. This is what the feral cat lobbyists and their legions of ‘dark meowney’ super-packs want you to believe, spinning you a tail that shelters for them are a pawblic good when they are just looking to be given a treat!

      1. I like you.

      2. (all you need is a reference to the teachings of Chairman Meow)

      3. For unprecedented use of a new pun, I give 100 points to Gryffindor. Griffindor wins!

        Sorry, Slytherin City Hall.

  2. Agree it would be just if she got her land back, but maybe best for her if she learned to let go. Anyway, it sounds like an interesting movie I’ll have to watch it 🙂

  3. How about the (current) city officials get the offending city officials, and all the members of the land grabbing group, and make THEM live in the feral cat shelters for 10 years? And fight the feral cats for the food supply.

  4. And ask a drunk teenager to give his parents their car back.

  5. Good idea.

  6. Give the run of the property to the feral cats. Take the 5 justices and tie them down on that hill, smear steak-sauce all over their bodies, and let the cats go to town.

    If, instead, you’re looking for something with an economic upside: Just charge admission to watch the cats show their appreciate to those 5 justices. I’m in for $10. Or maybe Pay-per-view???….

  7. And Ms. Kelo says, “I used to have a house here. Now they might give me a vacant lot that probably doesn’t even have road access or utilities. Big whoops.”

    1. Bingo. Giving her property back at this point would be a calculated insult, unless it’s accompanied by enough money to build a nice house on the property, and they did it for others, too.

      They didn’t take a bare lot in a wasteland from her. They took a nice house in an established neighborhood. How are they going to give THAT back?

      1. It would also carry the connotation that the original eminent domain condemnation may have been wrong, which is a pretty straight forward way to end your career as a government official of any capacity.

      2. They were required to pay her when they took the property the first time. Now U have no idea whether that’s enough to rebuild the house. I think things like better due process for just compensation would be important reform that everyone always ignores because they’re focused solely on the situation in Kelo. I think, even if Kelo had come out the other way, it wouldn’t have solved the main eminent domain abuses.

        1. ” better due process for just compensation”

          +1. We could fix the whole issue with a couple minor reforms e.g., government must pay 125% of FMV (to account for lost expectations + real costs of moving) and the property owner can choose the parcel / evaluation time.

          The idea of letting judges decide “what is in the public interest” is scary.

      3. Wouldn’t the money they paid her (house + land) plus getting the land back free be in excess of what would be required to build the house?

        1. Maybe. Governments are notorious for playing games with valuations

          1. High valuation for property tax purposes, low valuations otherwise.

  8. Our cat overlords’ plans have gone as planned so far.

    1. Yet such gains are worth nothing as long as so many of the meownority are denied body integrity.

      1. Challenges to involuntary sterilization and judicial comments about one generation of calicos being enough to follow.

  9. Doesn’t this case make the unavoidable difference between “public use” and “public benefit” unmistakably clear?
    Surely, Justice Gorsuch would think so.

  10. If we had a functioning justice system in this country, Kelo would have the prerogative of flogging everyone involved in stealing her land and house to death.

    -jcr

  11. When I visited Sully Plantation, on State Route 28 near Dulles Airport, I learned that it used to belong to Frederick Nolting (later U.S. Ambassador to Vietnam). The FAA took the property by eminent domain, intending to tear it down in connection with the construction of the airport, but the historic preservation crowd mobilized, and the FAA agreed that instead of using the property for the airport, they would lease it to the Fairfax County Parks Authority for use as a historic park.

    Most people thought that was a great win-win solution, but it struck me as grossly unfair to Ambassador Nolting. If the FAA wasn’t going to use the property for the purposes for which they took it from him at virtual gunpoint, they should give it back.

    (It’s too late for Nolting himself, who died after retiring as ambassador in residence at the University of Virginia, but they could give it back to his heirs.)

    1. Airports and parks are public goods.

      1. Fine. If Fairfax County wants to take Ambassador Nolting’s home for a historical park, then they should be upfront about it and condemn his property for that purpose. Instead, the FAA condemned his home for an airport, and then didn’t use it at all.

        1. Your original post specifically indicating that the FAA acted with good faith intention to use it for the airport and was stymied later on.

          This isn’t a case where Fairfax County got the FAA to condemn it using the airport as a pretext. They were upfront.

          1. I never said that “Fairfax County got the FAA to condemn it using the airport as a pretext.” What I was arguing was that, if the FAA determined that it didn’t actually need to use Sully Plantation for the purpose for which the federal government’s eminent domain powers were invoked, then it should have returned the property to the previous owners. If Fairfax County then wanted it for a park, they would be free to invoke state law (to the extent available) to condemn it.

            I would hope, however, that since the preservationists’ big concern was simply that the plantation not be torn down, and since there was no suggestion that the Noltings were likely to tear it down (or sell it off to developers), the County would simply leave the property in the Noltings’ hands, or at worst would negotiate a voluntary sale. (That goes doubly if it turns out that the County couldn’t have condemned the property directly for park purposes. The fact that no one was acting in bad faith is irrelevant; if the FAA wasn’t going to use the property for airport purposes, the Noltings, not the County, should be the only party entitled to get the resulting windfall.)

            1. I agree with you. I’m from Virginia and used to live in centreville area after college. However I was not aware of how the owners lost sully plantation.

  12. Leave it vacant, except for a monument to commemorate the injustice and stupidity. Take school buses of children for generations to see the danger of unrestrained government power

    1. Would that be government busses taking government-school children? I’ll not be holding by breath.

    2. Is the unrestrained government power the act of “taking” land? Or is the unrestrained government power the act of “giving” land? You have no inherent claim over land that you don’t occupy without first having consent from the collective, i.e. government. That’s the dirty secret of capitalism. That rental property you own two states over is only yours because government says it’s yours. And they say it’s yours based on a construct that has NOTHING to do with the non-aggression principle.

    3. I also like this idea. And boldly name the city councils who ruined their citizens lives and the judges who nailed the coffin.

  13. Hello, current resident of New London CT here. The feral cat population exists because there is a significant problem with rats which the local health board is trying to address. The rat problem exists because of increased ship traffic at the City Pier. Upgrades to the pier and waterfront area provide a wonderful “rat highway” stretching about one mile from the pier to the empty lots. Also do not forget that the whole project involved bonded upgrades to the cities sewage treatment plant. In addition to a tax abated development of 2 office towers for Pfizer’s HQ Admin staff. Which was abandoned when the abatement ended. One of the towers is now occupied by General Dynamics Electric Boat. There is currently a Pfizer “day care center” abandoned at the same time sitting where a house I used to live in stood. Plus the roundabout and street upgrades to accommodate all the traffic to this area resulted in the destruction of “Hughie’s” restaurant. A cultural icon of this area for decades. The New London Development Corporation closed up and re-named itself and continues to struggle to actually do anything with the “accursed” Kelo property area.

  14. The Kelso issue seems like a garden variety problem of how much should be paid for a property under eminent domain. Whether the city is going to use the property for a publicly owned site (school, bridge) that will benefit city residents more than the current use or turn it over for private development that will benefit city residents more than the current use, seems beside the point. “Fair Market Value,” even if easily determined does not seem fair in that the owner by not having already sold it at the “Fair Market Value” seems to show that they value it at greater than Fair Market Value. Eminent domain purchase should be about how much of the increase in value of a property that results from the new use should be shared with the current owner. But, again, it seems irrelevant whether this value is to be realized by the city’s direct use of the property or its transfer to a private developer, except that in the transfer case it may be easier to establish a monetary value of the new use.

  15. As we approach the confirmation of Judge Kavanaugh to the Supreme Court I began to remember Kelo and was reminded of how angry I was at the 5 to 4 decision against Kelo. This was the turning point for me where I no longer trusted the government and that distrust has been with me ever since. If they can do this to residents there then nothing is safe anywhere. It is time to give Kelo and the others their land back and shame on the 5 justices who helped it happen.

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