This Land is My Land

What better way to celebrate Columbus Day than with a post about taking other people's land? We're talking about the Takings Clause today, and a case that you may recall being in the news, Kelo v. City of New London. 545 U.S. 469 (2005).¹

The Takings Clause refers to a portion of the Fifth Amendment to the Constitution, which states that “public property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V The Takings Clause provides for “eminent domain” which “refers to the state's prerogative to seize private property, dispossess its owner, and assume full legal right and title to it in the name of some ostensible public good.” Jed Rubenfeld, Usings 102 Yale L.J. 1077, 1081-94 (1993).

Think of it this way. The drafters of the Constitution were a little like cats, with regard to property. Those of you with cats can do an experiment to understand how the Takings Clause works. (Note: The Purrdict is not responsible for any injuries incurred from attempting this experiment. Follow all safety precautions, including long sleeves, gloves, and a mask before proceeding). To begin, you will need a cat, a full bowl of kibble, and a crown. With the crown on your head, attempt to move the cat's bowl. I suggest sliding it to another part of the floor, if not taking it away all together. That growl you heard is something akin to the feline Declaration of Independence. If you got swiped at, you truly understand the purpose of the Takings Clause. Now, take the crown off, and, while taking away the bowl of kibble, replace it with a bowl of wet food. The cat may have given you a scornful look, but probably proceeded to eat the new food. You are the American government. You have “taken” the cat's food, but have replaced it with “just compensation.”

The missing element in this example is the element of “public use.” The idea is that the government can't just take away the cat's food, even if the cat is compensated, unless the taking will have a public purpose.

What is a legitimate public purpose? The Supreme Court tackled this question in Kelo, and either decided it, or made a mess of it akin to what I do with Human Female's knitting while she sleeps.

Kelo arose out of the city of New London, in Connecticut. 545 U.S. 469 (2005). New London had housed a Naval Undersea Warfare Center, which the government closed in 1996. Id. A state agency designated New London a “distressed municipality” in 1990. Id. By 1998, “the City's unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.” Id. The State of Connecticut had assigned a non-profit, the New London Development Corporation to plan “economic development.” Id. The pharmaceutical company Pfizer, Inc. announced that it had plans to build a research facility in the area that the NLDC was working on. Id. Hoping to capitalize on Pfizer's influence in the area, the NLDC exercised the rights of eminent domain that the State had delegated to it, and took parcels of private property, compensating the owners. Id. The plan was to create “office and retail space, parking, and water-dependent commercial uses” along with a river-walk. Id. The City determined that the plan would create tax-revenue, jobs, and recreational facilities for the community. Id.

As part of the plan, the NLDC took the homes of Susette Kelo, Wilhelmina Dery and Charles Dery. Id. Wilhelmina had been born in her house in 1918, and her husband had lived there since their marriage, nearly 60 years before. Id. They were not contesting that the amount of compensation they received was unfair, but challenged the state's right to take their homes at all. Id.

There are three permutations that can give rise to public use. See Id. dissent. The first two are pretty clear. See id. First, if the state takes private land and gives it to a public entity, for example to build a “road, a hospital, or a military base” there is a public use. See id. If the state takes private land and gives it to a private entity for something that will have a widespread public benefit, the Supreme Court has held that there is a legitimate public use consistent with the Takings Clause. See id. The Kelo case, however, fell into a third category: private land taken and given to a private company for private benefit and private use.

There was some precedent for the constitutionality of takings in this third category. In Berman v. Parker, a neighborhood of Washington, D.C. Had become so “blighted” that “64.3% of its dwellings were beyond repair,” and the “lack of adequate streets and alleys,” and “lack of light and air” had resulted in the neighborhood becoming “injurious to the public health, safety, morals and welfare.” Id. Citing 348 U.S. 26 (1954). The Court held that the government's taking of the neighborhood was constitutional. In Hawaii Housing Authority v. Midkiff, the State of Hawaii instituted a land redistribution plan in which title was transferred from lessors to lessees in order to repair a situation in which the "State and Federal governments owned nearly 49% of the State's land, and another 47% was in the hands of only 72 private landowners.” Id. citing 467 U.,S. 229 (1984). In the State's determination, there existed an “oligopoly” that was “skewing the State's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare.” Id. The Court held that the redistribution plan was constitutional. Id.

The homeowners argued that a purely economic benefit to the City could not constitute a public use, but the majority of the Court disagreed, holding that the City of New London had acted properly and constitutionally. Id. The majority decided that the NLDC plan was like those in Berman and Midkiff. Id. The Court held that promoting the economy of the area did in fact constitute a public use. Id.

The dissenters on the Court, and Justice Sandra Day O'Connor in particular, took issue with the holding. Justice O'Connor wrote that “[u]nder the banner 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—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-- in the process.” Id. dissent. To Justice O'Connor, the Berman and Midkiff cases were different from Kelo, in that the takings in Berman and Midkiff eliminated an existing harm, and that there was no harm in Kelo. Id. The neighborhood of New London in question was not blighted. The government may have determined that its plan would better the area, but it was not repairing an already existing harm. Id.

Think of it this way: imagine that I have a metal food bowl that I'm particularly attached to. The Humans, playing the part of the government in this example, find out that my neighbors Fluffy and Pandora are losing sleep due to the excessive clanging of my bowl. They take my bowl and replace it with a plastic one. Following Berman and Midkiff, they are rectifying a public harm, so taking away my bowl serves a public use. Now imagine that Fluffy and Pandora couldn't care less about my bowl, but that the landlord's Jack Russell sells porcelain bowls. The Humans decide that if they replace my bowl with a dog-made bowl, the Jack Russell's business will grow, he will make more money, and will reinvest that money in landscaping the outside of the building without charging the tenants. The economic benefit to the tenants constitutes a public use, under Kelo, but not to Justice O'Connor, because there was no public harm to be rectified.

Ironically, in the end, the NLDC plan didn't pay off as the City had hoped. By 2009, the new buildings had not been built. The anticipated revenue and jobs did not materialize. Also in 2009, Pfizer merged with another pharmaceutical company and closed the New London plant. After Hurricane Irene, the land was used to deposit vegetation. Truly Kelo was a case with no winners.

It remains to be seen how the Kelo decision will play out, but in the meantime, hold on to those food bowls.

1Unfortunately, I was unable to find a copy of the decision with the reporter page numbers, so citations throughout will omit specific pages. If you have objections to this, let me know and I'll try to get my paws on a different version.