Kelo condemnation site taken for “economic development” still lies empty

February 5

In the controversial 2005 case of Kelo v. City of New London, the Supreme Court ruled that state and local governments have the power to take private property and transfer it to other private owners in order to promote “economic development.” In the process, it upheld an ill-conceived New London plan that condemned fifteen residential properties. In this recent Weekly Standard article, Charlotte Allen describes the current state of the condemned property, on which some fifteen homes once stood:

“See that pole with the transformer hanging from it?” Michael Cristofaro asked me. “That was where my family’s home was.” I looked up at a line of high telephone poles marching diagonally against a blanched winter sky across a vast, empty field​—​90 acres​—​that was entirely uninhabited and looked as though it had always been that way….

Cristofaro and I were walking through a section of New London called Fort Trumbull, a fist-shaped peninsula jutting out into the Thames. It is the battleground of what must be the most universally loathed Supreme Court ruling of the new millennium, Kelo v. City of New London (2005). The case is named after its lead plaintiff, Susette Kelo, a nurse who had owned a home a few blocks away from the Cristofaro house. The Supreme Court voted 5-4 to uphold a Connecticut Supreme Court ruling that the city of New London and a nonprofit quasi-public entity that the city had set up, then called the New London Development Corporation (NLDC), were entitled to seize, in a process known as eminent domain, the homes and businesses of Kelo, the Cristofaros, and five other nearby property owners in the name of “economic development” that would generate “new jobs and increased revenue,” in the words of since-retired Justice John Paul Stevens, author of the majority opinion….

[T]he Fort Trumbull tract where the razed homes once stood never did get built on, despite a $78 million incentive package from the state of Connecticut.

The sad history of the Fort Trumbull condemnations was also described in this June 2013 New London Day article, which I commented on here. It is important to recognize that the failure of the New London condemnations was not only predictable in advance, but actually predicted. The trial judge who struck down 11 of the 15 condemnations and the dissenting justices in the 4-3 Connecticut Supreme Court decision upholding the takings before the case got to the federal Supreme Court, all wanted to invalidate the condemnations because they had little chance of ever actually achieving the development that supposedly justified the use of eminent domain in the first place. As Justice Peter Zarella put it in his dissenting opinion:

In my view, the development plan as a whole cannot be considered apart from the condemnations because the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement. Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence, that the anticipated public benefit will be realized….

The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty. To the contrary, the evidence establishes that, at the time of the takings, there was no signed agreement to develop the properties, the economic climate was poor and the development plan contained no conditions pertaining to future development agreements that would ensure achievement of the intended public benefit if development were to occur.

The Fort Trumbull property owners lost their homes and other property in order to create “economic development” that never actually developed. However, the takings were not a total loss. A colony of feral cats has been using the land.

Sadly, what happened in New London is not unusual. Economic development and “blight” condemnations often end up destroying more development than they create. Kelo generated an unprecedented political backlash across the political spectrum. In its wake, some 45 states have passed eminent domain reform laws. Some of the new laws represent genuine progress, but many others only pretend to do so. The struggle to prevent future Kelos continues.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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