Taking Homes for a Shopping Mall: The Abuse of Eminent Domain in a Post-Kelo World
Photography by Keith Berr
When I first visited Susette Kelo’s little pink house in the summer of 2000, I did not know that it would be the centerpiece of a landmark Supreme Court decision, but I did know that it was a special place. Susette bought the house after a divorce and having raised five boys as a place to start another chapter in her life. She made the place her own 900-square-foot Victorian sanctuary, filled with hand-stitched rugs and bargain-hunted antique furniture. The home also had a beautiful view of the Long Island Sound. As Susette noted, she had a millionaire’s view on a nurse’s salary.
But the city of New London, Connecticut, and Pfizer, the world’s largest pharmaceutical company, had other plans for Susette and her neighbors. They wanted to replace this working-class community with a luxury hotel, upscale condos, office space, and other unspecified development projects. We agreed to represent Susette and a group of brave homeowners in a case that went from the superior court in New London to the U.S. Supreme Court. The case has profoundly changed the law of this country.
When the Court handed down its decision in Kelo, I had been battling eminent domain abuse and other constitutional issues for several years as an attorney at the Institute for Justice (IJ), a public interest law firm located just outside Washington, D.C. I joined IJ when I graduated from Pitt Law in ’91 and just as IJ opened its doors in September of that year. My work has taken me to cities throughout the country, including a battle in Pittsburgh right before we got involved in the Kelo case, where then-Mayor Tom Murphy unsuccessfully tried to tear down more than 60 buildings and take over 120 small businesses so that a private developer could build an urban shopping mall.
The takings clause of the U.S. Constitution states: “Private property shall not be taken for public use without just compensation.” The amendment has two important protections: If the government takes your property, it has to pay you for it; and the government can only take your property in the first instance if it is for a “public use.” Almost every state constitution has similar protections. The Founders recognized that eminent domain sometimes had to be used, but they also knew that the power could easily be abused. Indeed, apart from putting someone to death, taking away one’s home, business or land is about the most serious thing a government can do to its citizens.
For a number of years, eminent domain was largely confined to its traditional role: the building of roads, government buildings, parks, public schools, and the installation of railroad and utility lines. However—mostly starting in the 1950s era of often incredibly misguided urban renewal projects—courts, including the U.S. Supreme Court, started to read the public use provision of the Constitution broadly, culminating in the Kelo v. New London decision in 2005.
In Kelo, the Court upheld the use of eminent domain for private commercial development, holding that the trickle-down effects of business development in the form of higher tax revenue, greater job growth and an improved economy were “public uses” under the Fifth Amendment. This ruling astounded most people in the country. As Justice O’Connor wrote in her blistering dissent in the case: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
When someone asked Louis Armstrong one time what jazz was, he responded by saying: “Man, if you gotta ask, you’ll never know.” I sort of feel the same way when someone asks me what is wrong with taking someone’s home and giving it to Wal-Mart, or taking a row of small businesses to put in high-end condominiums. So rather than spend the rest of this article discussing the legal and moral issues raised by the use of eminent domain for private development, I thought I would instead discuss the profound changes that have come about as a result of the Kelo decision.
We got involved in this controversy in the mid-1990s, when most people thought the public use issue was a dead letter. Taking on difficult cases and trying to change the law, however, is the very reason why public interest law firms exist. So we started a long, uphill battle to change case law and public attitudes about the use of eminent domain for private development. We were the only public interest group taking on these cases. One problem we encountered is that these cases develop on a local level, so it was hard to develop national attention for the issue. Over the years, we developed a track record, brought some successful state court cases and gradually built public awareness of these abuses. One year to the day before the Supreme Court accepted the Kelo case, Mike Wallace of “60 Minutes” aired a devastating piece on the abuse of eminent domain for private development, highlighting two of our cases and clients. This was really the first time the issue received significant national attention.
Of course, nothing brought more attention to the issue than the Supreme Court’s agreeing to hear and then issuing its decision in Kelo. Unquestionably, Kelo is the most universally despised Supreme Court decision in decades. Polls consistently show more than 80 percent are opposed to it. And it has touched off a virtually unprecedented nationwide backlash against eminent domain abuse that has manifested itself in a number of ways. Consider just some of the changes that have occurred in just over two years:
Two state supreme courts have explicitly rejected Kelo, 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. Although most of the current litigation will be directed toward state constitutional claims, I am confident that one day, perhaps in the not-too-distant future, the Supreme Court will overturn its disastrous Kelo ruling, consigning it to the same fate as other discredited decisions like Plessy v. Ferguson (which upheld “separate but equal” treatment of the races) and Korematsu v. U.S. (which upheld the internment of Japanese-Americans during World War II).
Massive public awareness has been brought to the issue of eminent domain abuse. As I noted, 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 overwhelmingly oppose eminent domain for private development. And this opposition cuts across the usual political divides that separate Americans today. Property owners in blue states oppose eminent domain abuse just as much as do those in red states. Former Rep. Tom Delay and Sen. John Cornyn spoke out against the decision, as did Rep. Maxine Waters and former President Bill Clinton. Indeed, it is only a slight exaggeration to state that about the only people who support Kelo are those who stand to benefit from it: local political officials, planners, and developers.
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 condemnations for private gain under the public’s radar screen, 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.” Eminent domain supporter John Echeverria of Georgetown Law School laments: “There are an awful lot of developers shying away because they don't want to get involved in a time consuming, political mess.” And, as Susan Pruett, general counsel for the Georgia Municipal Association, confessed: “I describe Kelo as the worst case we ever won.”
As of this writing, 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. Eminent domain reforms have been passed despite the fact that the powerful interest groups I mentioned—developers, municipal officials and planners—have fought desperately to preserve their power. Moreover, these groups hold significant political clout and influence, especially in state legislatures. Nevertheless, important progress has been made on the legislative front, and more efforts are under way to either pass legislation in states that have not reformed their laws, or in going back and strengthening laws that have already been passed.
Meanwhile, in New London, Susette Kelo’s little pink cottage—the home that was the focal point of this landmark case and a national symbol of the fight against eminent domain abuse—was spared from the wrecking ball. Following the decision, and faced with eviction and the destruction of her beloved home, Susette put forward an idea that she had originally proposed when first threatened with eminent domain: preserving the home and moving it. When she first raised this idea, the New London Development Corporation (NLDC), the private body given eminent domain authority by the city of New London and Connecticut law, rejected it. With the environment changed after the fallout from the decision, the city, NLDC and the State of Connecticut agreed to the move. The home will be relocated on land donated by a local supporter of the property owners. In March 2006, another well-known property owner in the case, Wilhelmina Dery, the woman who had lived in her home in Fort Trumbull her entire life, and whose story was highlighted by Justice O’Connor in her dissent, passed away. Despite the protracted litigation and the Supreme Court’s decision, we were able to keep Mrs. Dery in her home, and she died just a few feet away from where she was born the year World War I ended.
What has happened post-Kelo is a classic example of losing the battle but winning the war. Certainly, much work remains to be done on this issue. For example, it will take a multi-year effort to change the legal and political environment in states like New York. But the incredible progress that has been made over the last two years is why so many people come up to me and my colleagues and say, “Congratulations on Kelo.” 
