I also see it splitting the liberal coalition between the managerial-state faction (which would support the use of eminent domain to enforce urban planning) and the social-justice faction (which would oppose it and strongly suspect that it’s merely a return to “urban renewal” = “Negro removal”).
I agree with zambon --I think that the SCOTUS will favor the town. Sorry, don’t recall the thread of argument that I heard yesterday on NPR, but the tone of questioning did not appear favorable to the home owners.
I deplore ED being used for sports stadiums, too, but at least one can argue that a stadium can be used by many and also attract tourism etc.
What the hell does this developement attract? And more importantly, where are these people to go?
I hope that when I am old, that noone comes and boots me from the town and house that I lived in for the past 60 years. (but that is not it–to me it is the principle–but the pathos make it so hard to watch).
Hard to say. Most of the justices have a definite reputation as “liberal” or “conservative,” but this isn’t a case where either side is clearly the “liberal” or “conservative” position. It’s a matter of government power vs. personal liberty. Also state autonomy vs. the federal Constitution. Also a class issue – a big development corporation vs. a few little-guy homeowners.
The justices are:
William Rehnquist: http://en.wikipedia.org/wiki/William_H._Rehnquist Appointed by Nixon, elevated to Chief Justice by Reagan. He has always favored a “broad view of state power” – that’s “state power” as opposed to federal power, not government power as such. The City of New London is, of course, an arm of the State of Connecticut. Kelo’s case is based on the Bill of Rights, which originally did not apply to the state or local governments, but limited only action by the federal government; and some conservatives feel it never should have been construed apply to the states at all. I don’t know if that’s Rehnquist’s view. Or whether he’ll even be up to voting on the decision.
John Paul Stevens: http://en.wikipedia.org/wiki/John_Paul_Stevens Appointed by Ford. He’s voted on the “liberal” side of the Rehnquist Court WRT abortion rights and federalism. He’s gone back and forth on affirmative action (most recently, he favors it).
Sandra Day O’Connor: http://en.wikipedia.org/wiki/Sandra_Day_O’Connor Appointed by Reagan. Considered the “centrist” of the court, always words her opinions as narrowly as possible.
Antonin Scalia: http://en.wikipedia.org/wiki/Antonin_Scalia Appointed by Reagan. Socially conservative but his rulings sometimes produce “liberal results,” owing to his commitment to a strict, literal reading of the language of the Constitution.
Anthony Kennedy: http://en.wikipedia.org/wiki/Anthony_Kennedy Appointed by Reagan. Moderate conservative, has generally supported the individual’s right to privacy as against the state’s police power. Has favored states’ rights and capital punishment and has voted to invalidate affirmative action programs.
David Souter: http://en.wikipedia.org/wiki/David_Souter Appointed by Bush I. Tends to side with liberals – dissented from the 2000 Bush v. Gore decision.
Clarence Thomas: http://en.wikipedia.org/wiki/Clarence_Thomas Appointed by Bush I. An “originalist” like Scalia, but his view of the Constitution’s historical context is somewhat different. Has favored a broad construction of the First Amendment, but a narrow interpretation of the Eighth Amendment and the Commerce Clause. Generally favors states’ rights.
Ruth Bader Ginsberg: http://en.wikipedia.org/wiki/Ruth_Bader_Ginsburg Appointed by Clinton. Generally liberal, favoring abortion rights, but has criticized the reasoning of Roe v. Wade. Dissented from Bush v. Gore.
Stephen Breyer: http://en.wikipedia.org/wiki/Stephen_Breyer Appointed by Clinton. Has a moderate record, pro-abortion rights. He “generally takes a pragmatic approach to constitutional issues, interested more in producing coherence and continuity in the law than in following doctrinal, historical, or textual strictures.”
There is of course a large difference between taking advantage of a law as it stands and advocating for or against it, just as a person might reasonably deduct home mortgage interest and still believe that the tax code ought to be amended to eliminate the very same deduction.
That said, there was deep concern on the part of believers in property rights that the Bush administration would file an amicus brief on the side of the municipalities. Happily, no such brief was filed. The federal government is officially sitting this one out.
That’s very good to hear. I retract my suspicions.
(Mark this on the calendar in red.) 
Just one perverse question: Is the Motel 6 owner any less out of the business to which he dedicated the last 20 years of his life if it’s expropriated to be replaced by a Ritz-Carlton, a sports arena, a park, or a nursing home?
We may feel better about it being one and not the other, but that may say more about us than about the legal/constitutional issue.
“Public use” is a policy decision, made by the policymaking bodies – legislatures, city councils, district boards. The question is how far it does go, and many people are unaware as to how far it IS going.
The “foot-in-the-door” component to this type of use of ED is revitalization of blighted areas. Namely that creating a favorable business climate that is necessary to create jobs and raise revenuye for services, require a certain availability of land, and therefore the government body should use ED to “create” available land. It’s being done in downtown Santurce, right on my way to work, as we speak.
As mentioned, this cuts across politico-economic ideologies – after all, for a strict property-rights libertarian, it is just as offensive to be told he can’t do what he wants on his family land because it’s a habitat for the frumious bandersnatch, and at least in an expropriation you are paid for losing something.
I will be rooting for the neighborhood, though. There’s got to be SOME point at which government stops serving its own revenues and starts serving its constituents. However… of course… maybe the citizens of the rest of New London feel that the residents of Fort Trumbull are expendable, and the city IS acting righteously on behalf of their well-being, so *&^% that handful of families. Democracy in action?
I understand the theory behind condemnation of blighted areas, but this isn’t what’s going on here. The State has declared New London a “distressed municipality” but I don’t think that should be enough to trump private property rights. It’s certainly further along the continuum to pure economic development for mostly private benefit with only a tangential public use than condemnation for blighted areas.
If this is affirmed, I don’t see how municipalities won’t start engaging in true central planning. I hope I’m wrong.
Dahlia Lithwick has a good column on this case, including some excerpts from the justices’ questions.
I agree that the court will probably support New London, but maybe there will be some adjustment as to what constitutes “just compensation.”
In light of what unplanned suburban development since the 1950s has given us, maybe that would be a good thing. Or at least an improvement.
Imagine I own a house in a rundown neighbourhood, and Walmart wants to build a megastore there. As in New London, the city is attempting to use eminent domain to condemn the property, in which case I receive fair compensation.
Other things being equal, fair market value for my house is low–say $100,000 is what I could reasonably expect if I was just selling my house as normal, without Walmart involved at all.
But in this case, a big corporation wants all of the lots so they can build, and I’m squarely in their path, so I’m holding out for $200,000–the value of my house went up because demand for the property increased when Walmart decided to buy the neighbourhood.
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What’s the amount I would get under ED as fair compensation? Does it account for the altered market conditions by the corporation’s attempt to purchase everything?
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What should I get, morally? Should ED take account of the affected market when considering just compensation?
It is a policy decision within the limits of what constitutes “public use”. The fact that New London’s attorneys assert that transfer of property from one private owner to another by government fiat is a “public use” suggests that the various comedians who held up Bill Clinton as the poster boy for semantic obfuscation owe him an apology.
The various builders and buyers who created and settled the suburbs are all nonsentient meat robots, who act without conscious planning like so many hard-wired social insects?
Pretty much. They act in response only to immediate short-term market forces, and with absolutely no conception of what the metro area is supposed to look like and how it is supposed to function when everything is built out. See Edge City by Joel Garreau.
Ah, ah, ah. You’re still concealing your assumption (“planning” == “planning by government bureaucrats”).
Indeed. I live in the suburbs, one criticized roundly by many liberals as an example of undesirable sprawl.
It’s really nice down here. The developer who built my housing plan left tons of trees standing and incorporated parks and recreational facilities into the community. I can access these for a HOA fee of only about $38/month.
While folks who live in Washington, DC have to deal with poor schools, crime, parking problems and extremely high housing costs in the desirable areas, I’ll be sending the kids off to a good public school right in the neighborhood and going fishing in our community lake.
The reason people live in the suburbs is because the quality of life there suits lots of people. I’m not ashamed to say I fit this bill.
These are not run-down homes in a blighted neighborhood.
These are nice, middle-class homes with a waterview. And therein lies their crime. Only the rich are allowed a view of the water. :rolleyes:
Under no condition should a gov’t get involved in a private negotiation. If Private Developer A cannot get Homeowner B to sell, that’s it. Go find another piece of property. Private Developer A should not be able to go to Municipality C and say, “I want this property. Make them sell it to me.”
Of course every individual PUD (planned unit development) is planned by the development corporation, and, judging by the results, there are several things wrong with this. For instance:
(1) Developers typically want to build a saleable dwelling unit on every single lot, so they omit civic amenities, or provide the bare minimum. (That’s beginning to change – there are now some “new urbanist” or “neotraditionalist” developers who do it on a different model, with civic amenities, commercial uses mixed in with the homes, and a more walkable scale – such as Duany and Plater-Zyberk – http://www.dpz.com/. And people want to live in DPZ developments, judging by the prices they fetch.)
(2) Whatever their intentions, developers can plan only for the particular parcels of land under their ownership. Only a government can do any comprehensive growth planning for an entire metro region – the town or city plus the surrounding suburbs. If you have such government planning and it is effective and enlightened, you get a nice, liveable, well-functioning metro area like Portland, OR. If you don’t, what happens is Greater Atlanta. Uncontrolled development has done more damage to Atlanta than General Sherman ever did.
Then there’s the fact that the low-density suburb is auto-dependent and economically hostile to mass-transit alternatives, but that’s a whole other thread.
Mr. Moto:
So you’re an “elitist”, eh?
Nope. Plenty of the elite choose to live in Washington, and put up with these problems that affect even nice neighborhoods in the city.
I live in a decidedly middle-class area. There are no Georgetown dinner parties here. The lifestyle is modest and family centered in this neighborhood, which is a nice match for our own style of living.
Elitists generally don’t have 3 bedroom, 1.5 bath homes. We have this, and a nice big back yard for the kids. There are 21 trees just in my back yard, and a few more in front. Oak, beech and walnut dominate.
And the shooting ranges are a short drive from here.
A very interesting discussion (said the land use planner).