Eminent Domain
CASE 3.1 Eminent Domain
Susette Kelo’s nondescript, pink clap-board house sits above the Thames River in the Fort Trumbull area of New London, Connecticut. It’s surrounded by vacant lots, where neighbors once lived. One by one, these neighbors have left, and their homes have been razed. Their property has been taken over by the City of New London, which has used its power of eminent domain to clear the land where dozens of homes once stood in order to prepare the way for newdevelopment. 78 Eminent domain is the ancient right of government to take property from an individual without consent for the common good— for example, to build a highway, an airport, a dam, or a hospital. The U. S. Constitution recognizes that right, permit-ting private property to be taken for “ public use” as long as “ just compensation” is paid. In this case, however, New London is taking land from one private party and giving it to another. By tearing down Susette Kelo’s old neighborhood, the city hopes to attract new development, which, in turn, will help revitalize the community and bring in more tax revenue. “ This isn’t for the public good,” says Kelo, a nurse who works three jobs. “ The public good is a firehouse or a school, not a hotel and a sports club.” Connecticut officially designates New London a blighted area. When the Navy moved its Undersea Warfare Center away from New London taking 1,400 jobs with it, the city’s already high rate of unemployment only got worse. Much of its hous-ing stock is old and second- rate. The Fort Trumbull area, in particular, is— or was, anyway— a rather gritty neighborhood, where earlier generations of immigrants struggled to get a start. But New London saw a chance to turn things around when the pharmaceutical company Pfizer built a $ 350 million research center along the river below historic Fort Trumbull. Since then, city and state governments have created a park around the fort, cleaned up the Navy’s old asbestos- laden site, and opened the riverfront to public access. Now the city wants to build a hotel, office buildings, and new homes to fill the riv-erfront blocks around Fort Trumbull. And it’s not talking about new homes for people like Susette Kelo. “ We need to get housing at the upper end, for people like the Pfizer employees,” says Ed O’Connell, the lawyer for the New London Development Corporation, which is in charge of the city’s redevelopment efforts. “ They are the professionals, they are the ones with the expertise and the leadership quali-ties to remake the city— the young urban professionals who will invest in New London, put their kids in school, and think of this as a place to stay for 20 or 30 years.” And housing devel-opers want open space to work with; they don’t want to build around a few old properties like Ms. Kelo’s and that of her neighbors, Wilhelmina and Charles Dery. Age 87 and 85, respectively, they live in the house Wilhelmina was born in. The city is willing to pay a fair price for their home, but it’s not an issue of money. “ We get this all the time,” says their son Matt. “‘ How much did they offer? What will it take?’ My parents don’t want to wake up rich tomorrow. They just want to wake up in their own home.” Unfortunately for the Derys, in 2005 the U. S. Supreme Court upheld the city’s condemnation rights. In a close, 5- to- 4 deci-sion, it ruled that compulsory purchase to foster economic devel-opment falls under “ public use” and is thus constitutionally permissible. “ Promoting economic development is a traditional and long accepted function of government,” Justice John Paul Stevens wrote for the majority. Intended to increase jobs and tax revenues, New London’s plan “ unquestionably serves a public purpose.” In her dissenting opinion, however, Justice Sandra Day O’Connor objected: “ Under the ban-ner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. . . . 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.” The Supreme Court’s decision pushes the debate over eminent domain back to the states and local communities. Although many cities have successfully used eminent domain to rebuild decayed urban areas or spark economic growth, 79 resistance to it has intensified, with political and legal battles being fought far beyond Susette Kelo’s home in New London. For example, in Highland Park, New Jersey, the owners of a photog-raphy studio worry that a plan to redevelop their street will force them out of the location they’ve occupied for twenty- five years. In Port Chester, New York, a state development agency wants the site of a small furniture plant for a parking lot for Home Depot, and its owners are resisting. And in Salina, New York, twenty- nine little businesses— with names like Butch’s Automotive and Transmission, Syracuse Crank and Machine, Gianelli’s Sausage, and Petersen Plumbing— are battling local government’s use of eminent domain to pave the way for DestiNY’s proposed 325- acre, $ 2.67 billion research- and- development park. Like New London, Salina desperately needs big ideas and big development, and it may not get another chance soon. But is tearing down these businesses fair? “ We’re here,” says Philip Jakes- Johnson, who owns Solvents & Petroleum Service, one of the twenty- nine businesses in question. “ We pay our taxes. We build companies and run them without tax breaks.” Brian Osborne, another owner, adds: “ Everything I and my family have worked for over the past 25 years is at stake because of the way eminent domain is being used in this state and across the country.” Update In 2009, Pfizer announced that, as a cost- cutting measure, it was closing its New London facility and transferring its 1,400 employ-ees to a campus the company owns in Groton, Connecticut.
Discussion Questions
1. Did New London treat Susette Kelo and her neighbors fairly? Assuming that the proposed development would help to revitalize New London, is it just for the city to appropriate private property around Fort Trumbull?
2. Are towns such as New London and Salina pursuing wise, beneficial, and progressive social policies, or are their actions socially harmful and biased against ordinary work-ing people and small- business owners?
3. Do you believe that eminent domain is a morally legitimate right of government? Explain why or why not.
4. “ If ‘ just compensation’ is paid, then by definition those who lose their property cannot claim that they have been treated unjustly.” Assess this argument. Can compen-sation be just even if one of the parties is unwilling to accept it?
5. Is it fair to the community if an individual refuses payment and blocks a socially useful project? Putting legal issues aside, are there situations in which it would be morally permissible for government to seize private property for the public good with less than full compensation or even with no compensation at all?
6. Assess the concept of eminent domain, in general, and the plight of Susette Kelo and her neighbors, in par-ticular, from the point of view of the different theories of justice discussed in this chapter. Is it possible to square the government’s exercise of eminent domain with a libertarian approach to justice?
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