Condemning the Condemnors: The Supreme Court's Decision in Kelo and Its Aftermath
Kiefer, Matthew J., The Next American City
IT IS RARE FOR A U.S. SUPREME COURT decision in the property law arena to attract as much attention as Kelo v. City of New London. The case involved the Connecticut city's eminent-domain taking of private homes and businesses as part of a comprehensive economic development plan, and it turned out to be the breakout event of the Court's recently concluded term. Some 40 organizations and individuals, including Jane Jacobs, the American Planning Association, and the cities of New York and Baltimore, had filed supporting briefs. On June 23, the Court upheld the takings by a vote of 5 to 4.
The majority opinion, written by Justice John Paul Stevens, does not announce broad new legal principles, merely filling a gap in eminent domain law. Yet the case has provoked widespread public outrage, leading many state legislatures and even Congress to consider limiting eminent domain powers for economic development. The reaction to the decision may have farther-reaching consequences for urban redevelopment efforts across the country than the decision itself, by depriving cities of a helpful, if sparingly used, tool to attract private investment.
The case really began in 1990, when the State of Connecticut, having designated New London a "distressed municipality," provided it and similarly situated cities bond funding and eminent domain powers for economic development. New London suffers from the pathology of many aging manufacturing cities: job and population loss and an eroding tax base, which compromises funding for municipal services. To reverse this downward spiral, the City of New London formed the non-profit New London Development Corporation (NLDC), which focused on Fort Trumbull, an older, down-at-the-heels neighborhood on a peninsula in the Thames River. The NLDC drew up an ambitious plan for a 90-acre area, including a conference hotel, a new urban neighborhood with shops and restaurants, 90,000 square feet of research-and-development-oriented office space for Pfizer, and a number of public amenities, including a Coast Guard museum, a riverwalk, and a renovated marina.
In addition to using federal land from a closed naval facility, the plan encompassed 115 privately owned properties. Most owners willingly negotiated sale terms, but Susette Kelo and eight of her neighbors would not. Working- and middle-class homeowners and small business owners, they were not holding out for more money; they simply did not want to give up their homes and businesses no matter the price. One petitioner had been born in her home in 1918. Kelo herself had recently made improvements to her house and enjoyed her water view. Represented by the Institute for Justice, a conservative Washington, D.C.-based legal foundation that pursues property rights cases across the country, they challenged the proposed takings through the state courts and, eventually, up to the U.S. Supreme Court.
Defining Public Use
The Fifth Amendment to the United States Constitution states, with breathtaking brevity, that private property shall not "be taken for public use without just compensation," in one phrase authorizing eminent domain but limiting it to public use and requiring compensation. Strict constructionists believe that the framers intended to allow government to take private property only for publicly owned facilities, like schools or highways. But as early as the 19th century, courts allowed takings for railroads and utilities to build facilities available for public use, and to allow mill owners to build dams that would flood upstream property on condition that they compensate the upstream owners.
Eventually, the phrase "public use" came to mean "public purpose," leading to the Supreme Court's unanimous 1954 decision in Berman v. Parker, which found that the elimination of blight in a Washington, D.C., urban renewal area was sufficient justification to take property for private redevelopment as part of a comprehensive, …
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Publication information: Article title: Condemning the Condemnors: The Supreme Court's Decision in Kelo and Its Aftermath. Contributors: Kiefer, Matthew J. - Author. Magazine title: The Next American City. Issue: 9 Publication date: January 1, 2005. Page number: 18+. © The Next American City, Inc. Summer 2008. Provided by ProQuest LLC. All Rights Reserved.
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