Our thanks to Robert S. Poliner, the Connecticut Ombudsman for Property Rights for permitting us to republish his review of Jeff Benedict’s Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here), the recently published book about the infamous U.S. Supreme Court eminent domain case Kelo v. City of New London, 545 U.S. 469 (2005).
Little Pink House, Eminent Domain
Time to Change the Law
The question that Wes Horton, the City of New London’s appellate counsel, answered regarding eminent domain that Tom Londregan, New London’s City Attorney, didn’t want asked or answered was where to draw the line between public and private use? Horton answered U. S. Supreme Court Justice Sandra Day O’Connor that he would not draw one and it would be okay if a city takes a Motel 6 that pays lower taxes and gives it to a Ritz-Carlton that pays higher taxes. According to Jeff Benedict, the author of Little Pink House, “Londregan bit his lip” and Scott Bullock of Institute for Justice, “couldn’t believe his ears.”
As we all know, the City of New London won the court case, twice, but lost the war. It wound up paying to the six plaintiffs at least three times what the city had offered even though the property owners never disputed compensation in the court proceedings. Susette Kelo was able to keep her little pink house, albeit by moving it piece by piece to another location. New London took a beating in the national and local media while our state treasury bore the brunt of the payments. By 2007 forty-three states, including Connecticut, made changes to their statutes and/or constitutions, some eliminating eminent domain when used for economic development and others, like Connecticut, adding to the procedural steps but not altering the definition of public use or requiring more proof of the necessity of the taking by the public agency or of the likelihood that the approved plan could, in fact, succeed.
Benedict’s book is a behind the headlines reporting of the day to day lives and activities of Kelo, the other owners of real estate and businesses in the Fort Trumbull section of New London, city officials, officers and members of New London Development Corporation, Pfizer, Institute for Justice, community members on the side of Kelo and against, former Governor Rowland, Peter Ellef and finally Governor Rell. It is a compelling story that moves quickly and draws out emotions. Several times I had to put the book down.
No matter how one feels about the use of eminent domain by municipalities for redevelopment or economic development projects both the story and the case stand out as poignant reminders that even people who live in little houses or run little businesses in not so nice areas of town are entitled to respect from government officials, corporate and university executives. Even if a person’s home is not protected from government seizure in all situations, the instances when homes are taken by eminent domain should be few and as a last, not a first, resort. This was not so in the Fort Trumbull neighborhood of New London and Benedict tells the story of how that happened.
The flooding of the area with real estate agents representing New London Development Corporation at one and the same time offering to purchase and threatening eminent domain if option agreements were not signed, the constant badgering of holdouts to come to their senses and sell, the bulldozing of the neighborhood around the plaintiffs’ houses all contributed to an atmosphere in which reasonable discussion could not occur. Benedict makes that point very clearly and concludes the opportunities for neighborhood involvement in the planning and implementation of the project were neither sought nor welcomed and when offered, were disregarded without serious consideration.
Were it not for the public uproar resulting from Kelo the legislature would not have established the Office of Ombudsman for Property Rights and I would not hold the position of Ombudsman for Property Rights. That may not be for long. Now that Connecticut finds itself in a serious financial bind it appears the Office is likely to join the Office of Business Advocate, Inspector General and other small offices and commissions in the footnotes of Connecticut history. In light of the national attention Benedict and his book have been given, one has to wonder about the timing, let alone the wisdom, of the decision to eliminate the only office in state or municipal government dedicated to assisting both property owners and public agencies concerning the use of eminent domain and related relocation assistance, an office that costs taxpayers less than $200,000 per year.
I hear almost every day from someone who has received a letter from the Department of Transportation or another public agency informing that person that an easement or a total or partial take is about to occur. Eminent domain is a fact of life in Connecticut. Most of the use is to satisfy the plans and projects of DOT and to a lesser extent Connecticut’s municipalities. Kelo, however, has had its effect. The disastrous financial condition of lenders and other public and private financiers has brought real estate development in Connecticut to a halt, but even before that, very few municipalities were willing to brave the negative publicity and public anger that surrounds the use of eminent domain.
Since Kelo, Supreme Courts in Ohio, Missouri and New Jersey have issued strong decisions limiting the use of eminent domain when the public use is economic development. In July, 2004 Michigan’s Supreme Court revisited and reversed its infamous “Poletown” decision which permitted displacement of thousands of Detroit homeowners, residents and businesses to make room for a new General Motors plant. Poletown was cited in the Connecticut Kelo majority opinion (March, 2004) to show the same deferential and broad purposive approach adhered to by the court in deciding whether New London’s economic development project constituted a valid public use for the exercise of eminent domain.
Our legislature should not wait to see what our Supreme Court will do next. It should enact statutes that require the condemning authority to bear the burden of proving by clear and convincing evidence that the use of eminent domain is, in fact, for a public use, that the taking is reasonably necessary to implement the public use and that the approved municipal plan will, in fact, be constructed within a reasonable period of time. If not enacted as a matter of principle and as fulfillment of Sections 8 and 11 of the Declaration of Rights of Connecticut’s Constitution, then these changes should be enacted as a safeguard to insure that hundreds of millions of tax dollars are not wasted.
I thoroughly enjoyed reading Little Pink House and congratulate Benedict on a job well done but wish there had been a different answer given by both Supreme Courts to the question, “where to draw the line?”
Robert S. Poliner
State of Connecticut
Ombudsman for Property Rights