SOMERVILLE — Eleven years after the United States Supreme Court held that the government can seize private property and turn it over to another private entity in the name of economic development, the case, Kelo v. City of New London, is still generating shockwaves.
In 2012, Somerville, Massachusetts, a jam-packed city of 80,000 currently in the midst of an an era of dramatic growth, unveiled an ambitious plan for its downtown Union Square neighborhood. Dubbed the Union Square Revitalization Plan, it revolves around a proposed extension of the Green Line, a subway route that would connect the neighborhood with downtown Boston. The city is authorized, under state eminent domain laws, to grab up to 279 private properties, according to a lawsuit filed last year by a band of property owners.
The city disputes the 279 property total noted in the lawsuit but according to the complaint, seizure of just two of the 279 properties is all that would be needed to accommodate the above-ground trolley line extension. In November, the Somerville Redevelopment Authority voted to hire legal powerhouse Foley Hoag to fight the citizen lawsuit, which it has asked the court to dismiss.
The roots of Somerville’s plan, which could involve the take over and sale of a large swath of the urban neighborhood can be traced back to New London, Connecticut, and a little pink house owned by a woman named Susette Kelo.
At the heart of the Kelo case was the question of whether the city of New London’s taking of private property in the Fort Trumbull neighborhood constituted a “public use,” even though it involved a plan for private commercial development.
Susette Kelo’s “little pink house.” (Via Institute for Justice)
The Takings Clause of the Fifth Amendment of the U.S. Constitution states that private property “shall not be taken for public use without just compensation.” In the Kelo case, however, the city wasn’t looking to acquire non-blighted property in order to build an interstate highway, railway or utility line. The city looked to buy the property and turn around and sell it to accommodate the pharmaceutical giant Pfizer as part of a larger economic development project.
Most of the property owners agreed to government demands to sell. But seven property owners, who owned a combined 15 residential properties in the neighborhood, refused. Kelo, who sought to keep her beloved “little pink house,” was one of the seven. Another was octogenarian Wilhelmina Dery, who had lived in her home all of her life.
Lawyers for the libertarian legal group, Institute for Justice, agree to take the case, and fought the city all the way to the Supreme Court.
In a 5-4 decision, the Court held that New London’s seizure of Fort Trumbull’s waterfront properties constituted a matter of public good, despite the fact that the properties were slated to be sold to private entities.
Justice John Paul Stevens, who delivered the court’s opinion, wrote that “in addition to creating jobs, generating tax revenue and helping to ‘build momentum for the revitalization of downtown New London,’ the plan was also designed to make the city more attractive and to create leisure and recreational opportunities on the waterfront and in the park.”
Stevens acknowledged that “it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B” and that the taking of the Fort Trumbull land did not equate to “future ‘use by the public.’”
But he wrote that New London’s development plan, nevertheless, served “a public purpose,” as it was part of a larger government effort to revitalize the downtrodden area.
Clarence Thomas (Wikimedia)
In dissent, Justice Sandra Day O’Connor complained that under the Court’s ruling, “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.”
“Under 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.”
Justice Clarence Thomas, also in dissent, took the argument a step further, saying that he would overturn previous case law cited by Stevens, specifically Berman v. Parker, a 1954 decision which held that non-blighted property could be seized if it happens to be situated inside a blighted neighborhood.
Thomas pointed out that “over 97 percent of the individuals forcibly removed from their homes by the ‘slum clearance’ project upheld by this court under Berman were black.”
The decision angered a bipartisan group of activists on both the left and the right — conservatives who think government power suspect and liberal communitarians who resent big business, as well civil rights activists who share Justice Thomas’s concerns that such projects often affect blacks disproportionately.
But, in the end, despite the decision in favor of New London, Pfizer elected to pull out of the project. And the land where Susette Kelo’s little pink house once stood remains undeveloped, a breeding ground for feral cats.
In the aftermath of the Court’s ruling, more than 40 states adopted laws either banning or restricting the application of eminent domain rules to economic development projects. In 2007, two years after Kelo, the Institute for Justice’s Castle Coalition — a Virginia-based anti-eminent domain advocacy group — delivered Massachusetts an ‘F’ grade when it came to private property rights.
Today, the grade is not much better, according to state Rep Bradley Jones (R-North Reading). Earlier this month, a spokesman for Jones said that the Republican lawmaker has tried repeatedly over his 22-year legislative career to pass bills that would prevent private property owners from being subjected to eminent domain initiatives that seek to transfer their land to another private entity, but that such efforts have, unfortunately, failed.
Last spring state Sen. Richard Ross (R-Wrentham) proposed a constitutional amendment relative to eminent domain. The language of the bill stated:
“With just compensation paid, private property may be taken only when necessary for the possession, occupation and enjoyment of land by the public at large, or by public agencies. Except for the privately owned public utilities or common carriers, private property shall not be taken for private commercial enterprise, for economic development or for any other private use, except with the consent of the owner. Property shall not be taken from one owner and transferred to another, on the grounds that the public will benefit from a more profitable private use.”
Jones has submitted an identical version of Ross’s proposal as a constitutional amendment.
Somerville Mayor Joseph Curtatone (Twitter)
As for Somerville’s plans for Union Square, the Institute for Justice’s Phil Applebaum told the Courthouse News Service in November that Mayor Joseph Curtatone is “using the expansion of the Green Line as a pretext for the unconstitutional taking of thriving businesses and homes.” Applebaum said that “destroying these properties just to benefit private real estate developers is not a public use and sends a chilling message to every other business and homeowner in Somerville — their properties are not safe.”
Institute for Justice lawyers say that Curtatone, during a meeting of the city’s Housing and Economic Development Committee, announced that even if the Green Line extension is not built, the city will still continue with the Union Square redevelopment plan.
So far, the city has taken 11 properties, according to Denise Taylor, a Curtatone spokeswoman. She added in an April 4 email that the five owners of the properties involved “have been paid fair market value and generous relocation reimbursements, according to federal and state statute.”
Taylor said the city isn’t currently seeking to take any of the other properties in the area targeted for redevelopment. But the city agency has the authorization to do so to accomplish the goals of the 20-year plan.
Curtatone in an online live chat conducted in December 2013 stressed that eminent domain would be used as a “last resort.”
“No property owner will be denied an opportunity to stay in the square or participate in the redevelopment of the square in partnership with the master developer if the use aligns with the community’s values,” the mayor wrote when asked about potential use of eminent domain to achieve the city’s economic goals. “We expect the master developer and current property owners to either reach a mutually agreed upon fair market sale price or work together to develop the property, which would negate the need for any future takings by eminent domain.”
April 5: This article has been updated to clarify the contents of the lawsuit.