The bitter fruits of the Kelo case


Philip Langdon

New Urban Network


The US Supreme Court’s 2005 decision in Kelo v. City of New London remains one of the most controversial actions the court has taken in recent years. In it, the court, by a 5-4 vote, upheld the use of eminent domain to transfer land from one private owner to another to promote economic development.

The case, as summarized by Wikipedia, arose from the condemnation by New London, Connecticut, of privately owned real property so that it could be used “as part of a comprehensive redevelopment plan which promised 3,169 new jobs and $1.2 million a year in tax revenues.” One result was that Susette Kelo lost her small pink house in the Fort Trumbull section of New London—an area that was to be converted to use by a Pfizer pharmaceutical research complex, a hotel, and other buildngs.

But this week Jeff Benedict, author of the book Little Pink House, revealed in The Hartford Courant that one of the judges who heard the case in Connecticut State Supreme Court now views the case differently than he did when his court upheld New London’s use of eminent domain.

Benedict spoke on the case in May 2010, at a New Haven event in which Kelo and Justice Richard Palmer were both in the audience. Palmer had been part of the majority that voted 4-3 in State Supreme Court to uphold eminent domain. After the state court’s decision, the case was appealed to the US Supreme Court, which upheld eminent domain.

Benedict recounts in the Courant that after his New Haven talk, Justice Palmer said to him and a few others, “Had I known all of what you just told us, I would have voted differently.”

If he had, the case might never have reached the nation’s highest court. The firestorm that erupted across the country—with many states placing new restrictions on eminent domain for purposes such as economic development—might never have been ignited.

Weeks after the conversation in New Haven, Justice Palmer sent Benedict a letter clarifying his remarks. “Those comments,” he wrote to Benedict, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk—namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” Benedict says the judge “later added that he could not know of those facts ‘because they were not yet in existence.'”

What this seems to suggest is that New London’s failure to produce economic development on the land taken from Kelo and other homeowners would have rendered the use of eminent domain in that part of the city unlawful. But the justice seems to indicate that this could be known only after more time had passed. If that’s correct, then the state court had no choice but to let New London seize the property after all.

Pfizer did build a large research complex within walking distance of the house that Kelo was trying to hold onto. The complex was a reclusive structure with restricted access—deliberately avoiding interaction with the rest of the peninsula on which development was supposed to occur.

Pfizer’s operations on the peninsula didn’t last long. The drug manufacturer suffered business setbacks and in November 2009 the company announced that it would shut down the New London research and development headquarters and transfer most of the 1,400 people working there to nearby Groton.

In June 2010 The Courant reported that Electric Boat, a Groton-based submarine maker, would buy the 750,000 sq. ft. building for its own engineering and research operations, with the expectation of employing at least 3,000 people in the Pfizer facility. The design and placement of the building make it unlikely that the complex will ever generate much vitality on the rest of the peninsula. It was not laid out to be part of a walkable, mixed-activity setting.

“For years, the drug maker’s operation was expected to catalyze redevelopment of New London’s Fort Trumbull neighborhood,” the paper noted, but that transformation has yet to occur. The 2010 Courant article observed: “Pfizer’s decision to leave the area, a result of its merger with Wyeth, seemed to render pointless the city’s use of eminent domain. Today, tranquil lots where the homes once stood sit wild and idle, overgrown with vegetation and bordered by crumbling sidewalks. By and large, the streets are quiet.”

The Nov. 11, 2009, Wall Street Journal excoriated the US Supreme Court decision, saying that after “the city and the state spent some $78 million to bulldoze private property for high-end condos and other ‘desirable’ elements,” the neighborhood stood vacant.

Asserted The Journal:

That’s especially galling because the five Supreme Court Justices cited the development plan as a major factor in rationalizing their Kelo decision. Justice Anthony Kennedy called the plan “comprehensive,” while Justice John Paul Stevens insisted that “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.” So much for that.