More than three years later, Kelo still sucks

When the Supreme Court makes a decision like Kelo (6.00 / 3)

which comes as a shock to the public across the partisan divide because of what the current eminent domain law permits (not becuase the court went off on its own a fashioned novel legal theories,) isn't the remedy for Congress to take up the issue and fashion new law that limits the reach of eminent domain to keep this kind of abusive seizure of property from occuring? Apparently, its a thorny issue to address but it wont get easier with time.  

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by: NeilSagan @ Sun Nov 22, 2009 at 18:10:36 PM CST

Especially given the number of large abandoned projects with holes! (6.00 / 1)

There is the Filene's Hole in the heart of Boston. The Filene's hole

There is the demolition of the old Symmes Hospital in Arlington...and the blowing tubleweeds that occupy this gorgeous site...and the Sign that says new homes available in summer of 2009 (which did not happen). Symmes

I bet you all know of other abandoned projects...want to list them here?  Business does not always know best, developers cannot always make their dreams happen and some of them may not even have told the "whole truth".

Deborah Sirotkin Butler
AmberPaw dot @aol.com

"Failure to plan is planning to fail."
Proverb

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by: AmberPaw @ Sun Nov 22, 2009 at 18:53:46 PM CST

[ Parent ]

The "Takings Clause" is the last of the 5th Amendment in the US Constitution. (0.00 / 0)

"... nor shall private property be taken for public use, without just compensation."

Which leaves things open.  

Article 10 of the Massachusetts Constitution, as amended, goes into greater detail and seems more just.  (This didn't prevent the scam and scandal when the Southeast expressway was built!)  It may be easier for the fifty states to engage their our constitutions for rights under eminent domain than trust the US congress.  I believe the state legislatures to be more in touch with the people than the US congress.  

Then, a little "what's good for the goose is good for the gander" goes a long way...

;o)

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by: Howland Lew Natick @ Sun Nov 22, 2009 at 18:53:50 PM CST

[ Parent ]

It's not just Kelo that sucks (0.00 / 0)

It would be great if the courts could have put reasonable limits on takings for private benefit.

However, there is also an urban-planning department here that decided that it would be a good idea to tear down a neighborhood for the benefit of a private company, on the theory that its success would trickle down to the public. Kelo shows us how that works out.

Public policy rightly considers the power of markets and the private sector to achieve public goals, properly channeled. But not all public-private partnerships are created equal. No one should be surprised when the market does what markets do.

Just because Kelo said that New London could do this does not mean that New London should have done so, but it did.

This is a real lesson, if we needed another one, in the limits of private-sector partnerships. Don't let the city, and other policy droids with private-sector stars in their eyes, off the hook.

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by: Trickle up @ Sun Nov 22, 2009 at 19:27:17 PM CST

the Constitution (and precendent and state law) set a limit (0.00 / 0)

if you want further restrictions on valid purposes for taking land by eminent domain, we turn to the legislature to regulate it further by law.  

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www.bit.ly/5f8CVb - John Kerry reporting for duty!
www.bit.ly/6rJnZU - Questions for Martha Coakley on Civil Rights  

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by: NeilSagan @ Sun Nov 22, 2009 at 20:36:06 PM CST

[ Parent ]

Legal restructions are a good idea. But (0.00 / 0)

my point is that local governments do not need to do these things even if they can.

In my town, it would take a 2/3 vote of Town Meeting to authorize a taking. I cannot imagine anything like Kelo getting past that.

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by: Trickle up @ Sun Nov 22, 2009 at 21:20:41 PM CST

[ Parent ]

Kelo (6.00 / 1)

David, along with the many critics of this decision, missed the most important point about this case. The question before the court was NOT whether granting Pfizer land to develop was a wise decision. Indeed, the fact that Pfizer abandoned New London so soon signifies that it was in fact a bone-headed decision. Nevertheless, the real question was not whether it was wise but whether it was constitutional.

And on that question, the answer was certainly debatable but hardly a "dreadful mistake" (particularly since the legal precedent for these sorts of takings, dating back to the railroads in the 19th century, was substantial). Indeed, it would have been much more of a mistake, in my mind, to follow the logic of the most extreme right-wing "property-rights" crowd and given a jurisprudential hook for later attacks on other government takings (like the "regulatory takings" some right-wing legal organizations have long sought to recognize). In fact, that was the whole point of the lawsuit, and many left-wing groups fell for it (making the lawsuit a brilliant strategy, albeit one that ultimately fell a vote short).

Additionally, the reaction to the Kelo case indicates yet again the incredible hypocrisy of many conservatives. One the one hand, they complain about "activist courts" stepping on the "will of the people" and interfering with the democratic process. But the vast majority of conservatives had no problem having the Supreme Court get itself involved in the decision-making process of a local government in this case. Pure hypocrisy.

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by: Hoyapaul @ Sun Nov 22, 2009 at 19:30:49 PM CST

This is exactly why people need to get involved in local politics (6.00 / 2)

I know way too many people who vote in federal and State elections, but couldn't care less who their Alderman is.  It's ultimately local government that makes these sort of decisions and we as progressives, or what ever your political affiliation is, need to make sure that our voices get heard, which will not happen as long as people keep not showing up.  It's ultimately about deciding what sort of community you want to live in and that is as important as any national issue.

(I know this is probably preaching to the choir, but sometimes I have to vent about this.)

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by: Marcus Graly @ Sun Nov 22, 2009 at 20:19:23 PM CST

[ Parent ]

Of course the question was whether it was constitutional. (6.00 / 3)

That's the question the Court got wrong, to its discredit.  There has to be something more to "public use" than "a majority of the City Council feels like it."  Or maybe you don't think so.  I do.

The fact that the Pfizer deal was also bone-headed is sad, but beside the point.

Regulatory takings have little if anything to do with this case, which is about the forced transfer of title of real property.

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by: David @ Sun Nov 22, 2009 at 20:46:30 PM CST

[ Parent ]

Takings (0.00 / 0)

I'd agree that the words "public use" in the takings clause mean something and probably have to form some sort of limit. (Although I'd note as well that the main point of the takings clause was likely not to limit the government takings, per se, but to guarantee just compensation when it does occur). Nevertheless, when addressing the meaning of these vague words, the Court should be willing to give considerable deference to the people in a much better position than the Justices to determine the question -- in this case, the local government of New London. This is similar in spirit, in my view, to the Court giving a wide reading of the commerce clause by deferring to Congress -- the body best able to determine whether something truly "regulates (interstate) commerce".

Also, the notion of "regulatory takings" that I had in mind was the way the term is usually used, in the far broader sense than "the forced transfer of title of real property." I meant the notion that various state and local regulations -- including environmental regulations -- form a regulatory burden (and thus a "taking") on property-owners that requires just compensation. While Kelo itself had "nothing" to with this sort of regulatory taking, it was certainly viewed by the Institute for Justice and the other right-wing litigation groups involving in the case as a major building-block for later lawsuits attempting to limit regulatory takings.

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by: Hoyapaul @ Sun Nov 22, 2009 at 21:39:23 PM CST

[ Parent ]

Re regulatory takings, (0.00 / 0)

yes, I know what you meant.  That's my point: Kelo is a transfer of title case.  Regulatory takings cases are not.  That's a very bright line that at least one of the four "liberals" on the Court should have seen as a way of going the other way on Kelo while still holding the line on regulatory takings (which I agree are an insidious and anti-constitutional movement by extremist organizations like the Institute for Justice).

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by: David @ Sun Nov 22, 2009 at 21:56:53 PM CST

[ Parent ]

OK (0.00 / 0)

Whoops, I misread the last sentence of your comment above, but I see now what you were saying there.

As for regulatory takings, I'd personally certainly agree that there is a bright line between regulatory takings and the sort of transfer involved in Kelo, but unfortunately it's a line that Scalia, Thomas, and the Institute for Justice would like to muddy -- which was among the main purposes of litigating Kelo and similar cases.

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by: Hoyapaul @ Sun Nov 22, 2009 at 22:40:44 PM CST

[ Parent ]

now we're getting somewhere. (0.00 / 0)

"Of course the question was whether it was constitutional.  
That's the question the Court got wrong, to its discredit."  -David

www.bit.ly/7Wousr - "Must include a public option"
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www.bit.ly/5f8CVb - John Kerry reporting for duty!
www.bit.ly/6rJnZU - Questions for Martha Coakley on Civil Rights  

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by: NeilSagan @ Sun Nov 22, 2009 at 20:50:57 PM CST

[ Parent ]

Dodd should take it up after health care passes. (0.00 / 0)

I'd suggest Lieberman too but his corporate masters in the health insurance industry would be pissed at him. Watch this: "Does That Get Me Fired? - Lieberman & Stevens" video Does Lieberman run as a Republican in 2012?  

www.bit.ly/7Wousr - "Must include a public option"
www.bit.ly/7yaoMv - Coakley shifts, backs abortion curb
www.bit.ly/5f8CVb - John Kerry reporting for duty!
www.bit.ly/6rJnZU - Questions for Martha Coakley on Civil Rights  

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by: NeilSagan @ Sun Nov 22, 2009 at 19:34:14 PM CST

Anti-Kelo could be worse (0.00 / 0)

There is an argument to be made that if Kelo was granted the other direction, it would have been far more harmful.

Drive through any urban area and you will see a lot of seemingly abandoned properties. You will see empty houses -- owned by someone -- but that person is not interested in redeveloping their property. Maybe it is owned by someone's estate, maybe it is owned by someone far away who just doesn't care, etc. Maybe it's a bank-owned property. Maybe its someone who just wants to sit on an empty lot.

In Springfield, in its North End, in the 1960's, it was a lot of shabby, run-down properties owned by out-of-town interests who were only interested in providing the lowest form of housing to the poorest residents in the city. Many of them were unoccupied, burned out, etc.

While I think the city went way to far in clearing out an entire neighborhood (thousands of houses), and whileI think that "urban renewal" was not the best program this country undertook, I think the opposite of that -- which is "government cannot ever take private property for private development" -- would be even worse in many cases.

To be sure, in the Kelo case, it failed. It was foolish of the city to clear out what I understand to be a decent occupied neighborhood for the hopes of a development by Pfizer without getting a guarantee.

However, if the neighborhood had looked like Springfield's North End looked in the 1960's, or even what some of its neighborhoods look like now, and if the development really did play out, then it would not be viewed on as a failure.

Springfield recently had a successful land taking/development. Look at the Basketball Hall of Fame. To acquire the land, the city took a bunch of vacant lots, plus a couple of businesses (relocated), by eminent domain. There is now a hotel, several restaurants, and a very visible landmark on the property now. Without that taking, it is likely that the BBHoF would have moved to Orlando, and the city would be left with a bunch of vacant lots, and a couple of small businesses.

This may be hard to fathom if you live in a community with plenty of open space, or one that has no trouble attracting development. But in urban areas, redevelopment can be incredibly complicated due to a patchwork of ownership that has evolved over the years. I think that destroying the tool of eminent domain would just make urban areas decay even faster.  

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by: NoPolitician @ Mon Nov 23, 2009 at 10:31:33 AM CST

"if the neighborhood had looked like Springfield's North End looked in the 1960's" (6.00 / 2)

If that were the case, there would have been no doubt about the city's ability to use eminent domain to take the property.  "Urban renewal" and similar programs, however, depend on a finding that the property in question is "blighted, decadent, or substandard" (or words to that effect).  If such a finding is made, it's well established that the city can take the property.  Those kinds of takings were challenged back in the day, but the challenges failed across the board.

What is different about Kelo is that it allowed a city to condemn property that was in good condition, simply because it wanted to give it to someone richer.  I don't consider that "public use"; the Court, unfortunately, did.

I wrote about this issue at greater length in this post.

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by: David @ Mon Nov 23, 2009 at 10:48:54 AM CST

[ Parent ]

In fairness... (0.00 / 0)

In fairness, that nuance is being completely left out of any public discourse on this issue, and I don't think that the backlash of laws that followed Kelo addressed this either.

I suppose that "substandard" is the key point here -- how do you precisely define that? Is a neighborhood with 20% overgrown lots, 10% burned-out structures, 20% empty structures, 30% blighted (but occupied) structures, and 20% decently maintained structures "substandard"?

What if a solar panel manufacturing company saw the location as ideal, due to its presence to railroad tracks, and would convert 100 parcels into a large factory that would supply 1,000 jobs and would increase the local tax revenue by 50x?

What if the local community was overwhelmingly in favor of such a plan (via both opinion and representation), but it couldn't be done privately because a few of the vacant properties were tied up in probate, others were just not interested, and a few of them placed a million dollar price tag on their lots?

Could the supreme court have ruled in a way that would have denied the city of New London but would allow a project similar to what I described to occur? I think that might have been too fine a nuance to define, so the shift would have been to rule that "economic development" is not a public interest, therefore closing up the ability of communities to redevelop "blighted, substandard, and decadent" properties.

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by: NoPolitician @ Mon Nov 23, 2009 at 11:20:49 AM CST

[ Parent ]

"too fine a nuance to define" (0.00 / 0)

I don't see what would have been so hard.  Economic development, without more, is not sufficient.  It's pretty straightforward, and Massachusetts courts have been doing this for years - it remains the law here.

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by: David @ Mon Nov 23, 2009 at 11:48:26 AM CST

[ Parent ]

Substandard? Boy that's a scary word (0.00 / 0)

I lived on Kelton Street in Allston in the late 1970's when a developer owned 11 buildings.  He had funding to gut rehab six of the buildings so the BRA declared them blighted and substandard. The other five buildings, identical in every way to the substandard buildings, were simultaneously declared by the BRA to be fit, standard replacement housing for the tenants displaced from the other six buildings.
  The developer has since gone on to endow and name after himself an institute for investigative journalism.
   

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by: Bob Gardner @ Mon Nov 23, 2009 at 13:35:01 PM CST

[ Parent ]

Right, (0.00 / 0)

which is not to say that the urban renewal terminology can't be abused.  It can, just like any other statutory terminology.  But at least it's something.

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by: David @ Mon Nov 23, 2009 at 14:27:20 PM CST

[ Parent ]