Kelo and eminent domain: ending in farce
[To those of you eagerly awaiting Part 7 of my extended post on Fannie Mae, the implied story,(see Part 1, 2, 3, 4, 5 and 6), we interrupt it for a morality play that seems somehow puckishly appropriate for the Fourth of July. Part 7 will appear tomorrow.]
Over a year ago, Kelo v. New London was decided, 5-4, in favor of the government’s ability to take private property by eminent domain for economic development. The decision provoked a nationwide furor about limits on government, hundreds of fulminating editorials, numerous state legislative proposals, scores of law journal articles, and a largely optical Executive Order. All that is for the realm of national policy, but back in little old
Not quite.
Cases that make the U. S. Supreme Court become not matters of factual dispute but symbols of grand principles. Except that when down from the Hill come the judicial tablets, after a flurry of damning or hosannah-ing editorial, the inquisitive collective journalistic Eye turns to the next suspense story,
Now we’re covering earmarks!
and few spare a thought for expelled litigants, now again shrunk to mere individuals and entities, no longer symbols but people with problems, somewhat dazed by their encounter with symbolism, whose reality is always messy. As Allen Drury wrote in Advise and Consent:
No banner headlines heralded his demise, and far away in the beautiful city where ruthless men had used him ruthlessly for their purposes, no one even knew that he was gone.
In Kelo, what began as a local property skirmish and climaxed as high drama and higher-flown rhetoric is ending as slapstick farce.
“This is another fine mess you’ve gotten us into!”
While some parcels are moving forward as planned, via the New London Day (free registration required), here’s the state of play:
· [Apartment building owner Bill Von Winkle, a Kelo plaintiff] has settled with the city, agreeing to sell [his] building.
· The last of the holdouts appear ready to leave what remains of the neighborhood at
· City officials are beginning to speak of their eight-year fight –– and the debate it sparked about the power of the government to seize a private home –– in the past tense.
Eight years! Bear that in mind.
Plus one!
Such commitment demonstrates at least that the town is dead serious when it says it believes this redevelopment is vital to
NLDC officials […] have long expressed frustration with property rights activists […], and the attorneys at the Institute for Justice [Self-described as A Libertarian Public Interest, Non-Profit Law Firm That’s In Court On Behalf Of Individual Rights — Ed.], who they say have vilified them and drummed up a nationwide storm of criticism by misleading journalists and the public about their aims.
In testimony at the Connecticut legislature last year, for instance, NLDC President Michael Joplin cast his agency’s attempt to renovate the neighborhood as nothing less than a battle for the future of the city, and for economic vitality he said would lift the prospects of New London’s most needy residents.
“We cannot afford to educate our children, and if it sounds flip when we talk about taking someone’s house, that’s because we’re having half a conversation,” Joplin shot back at the time, after a state legislator had suggested he and city law director Thomas J. Londregan were being cavalier about the rights of property owners.
As I’ve previously posted, localities are economic organisms too, whose essential public services are funded principally through real estate taxes. When a neighborhood dies (as, for example, many parts of Old New Orleans are now economically dead), it can severely (perhaps even fatally) wound the town’s economics. That’s why internecine fights such as these are almost impossible to adjudicate at a distance.
When the fight ended, and
City officials [have devoted] long hours of negotiation […] to their attempts to finally settle with remaining plaintiffs in the
A week later, Ms. Kelo and Mr. Cristofaro both were accommodated — extraordinarily, one might say, as very helpfully summarized in Bizzyblog:
Kelo’s pink house to be relocated
Susette Kelo’s little pink cottage, the home that was the subject of a landmark U.S. Supreme Court case and a national symbol of the fight over eminent domain, will be spared from the wrecking ball. In a compromise between Kelo and
Irony of ironies — the house over which so much ink has been spilled … was moved here from somewhere else!
Easier than it looks!
“I am not happy about giving up my property, but I am very glad that my home, which means so much to me, will not be demolished and I will remain living in it,” said Kelo, the lead plaintiff in Kelo v.
Faced with eviction and the destruction of her beloved home, Kelo put forward an idea that she had originally proposed when first threatened with eminent domain abuse: preserving the home and moving it.
There is thus an interesting multi-part meta-lesson here:
- Even if a public agency feels it has right on its side, compromise with small interests may be prudent.
- Small shareholders who say, “No, never” in fact often compromise when “never” becomes “tomorrow.”
Both the city and the homeowners are Do-Bees.
As for the other home:
Fewer details were available concerning the Cristofaro settlement. The Cristofaros will lose their current home, but under the agreement, the city has agreed to support an application for more housing in
This is fine stuff — revealing case study in public policy — because it demonstrates:
- Remediation in kind (more housing) not just in cash. In effect, the principle is that government must restore the ecosystemic status quo ante, or at least re-seed it.
- Compensation in kind (future upside) to the dispossessed homeowner, echoing AHI’s proposal for equitable non-cash compensation.
Re-seeding the wealth back into the community
Meanwhile, one other owner who simply sold was Bill Von Winkle:
Eventually, after fighting the city and the New London Development Corp. all the way to the U.S. Supreme Court, insisting that he would not surrender his property to the condos and hotel facilities slated to replace the neighborhood, Von Winkle relented.
He reached the settlement with the city and the state late last month, and informed his 11 tenants, regretfully, that his fight was over. They were to move in 30 days.
[When interviewed by The Day], he was moving a military jeep with a camouflage paint job to a better spot in the backyard, and maintaining that he would not be pushed into anything.
“I’m different than everyone else,” Von Winkle said. “I leave when I want to leave.”
What then is the problem with Mr. Von Winkle’s building?
“By the time I woke up, the neighborhood around me was gone.”
His tenant, Lauren Ann Canario:
Canario had traveled across the country last year and moved into the apartment on the top floor of Bill Von Winkle’s building at Smith and Walbach streets in order to save it.
A small cluster of homes smack-dab in the center of a fort, oil storage tanks, and new construction.
Last year — in other words, long after Kelo had first been litigated, indeed only as it was reaching the Supreme Court. But she’s a renter, right, a tenant at will:
He reached the settlement with the city and the state late last month, and informed his 11 tenants, regretfully, that his fight was over. They were to move in 30 days.
That’s that, isn’t it? Respect for owner’s rights and everything? Ms. Canario knows what the owner should want better than he does:
“I think things haven’t changed, because even though they sold, they didn’t sell willingly,” she said Thursday. “There was a lot of intimidation and pressure and all kinds of bureaucratic loopholes that were applied to them that made them sell.”
But that’s not what Von Winkle says.
In other words, Ms. Canario is defying the owner’s right to use its property (via eviction) in order to defend a higher principle of defending the owner’s right to use its property. Say what?
Canario was at something of a loss to explain her passion for the defense of private property, even after the owner of the building had agreed to depart.
She says she identifies herself as an Objectivist, the philosophy of personal liberty and self-interest derived by the writer Ayn Rand.
The right to smoke cigarettes, the right to demolish a fireplace …
She describes an encounter with a fish while scuba diving in
“Fish are friends … not food.”
Partly, she said, her fight is about believing in the fight, quoting a saying of
“If I fight for property rights, that people should always be able to keep their house and only sell it when they want to, as long as I fight for that, the world is still that way,” she said. “But if I just knuckle under and let people get thrown out, then the world’s horrible.”
Wearing a mockup of Ms. Kelo’s house, Ms. Canario walks up and down,
demonstrating that property can move if properly motivated!
The horrible world is less tolerant, for the property owner has the right to evict:
Canario’s co-workers are taking bets on when the city will come knocking, on when she will resist again, and when she will be sent back to jail.
Back in the slammer again.
“Back to jail?” murmurs the reader.
She came to the public’s attention not long after [she moved to New London], in a crowded stairwell at City Hall, where she was arrested for refusing to obey a police officer’s order to leave as a City Council meeting on the future of the Fort Trumbull redevelopment project descended into chaos.
Canario wouldn’t move, and wouldn’t speak. She was arrested. She wouldn’t walk to the courthouse, wouldn’t speak to answer the judge. She sat in prison for 15 days. Supporters spray-painted “Free Lauren Now” on the side of Von Winkle’s building, and her husband, Jim Johnson, asked the nation for support: Send teddy bears and toy guns.
Instead,
The most popular guess is July 9. That’s the date spelled out in Canario’s eviction notice, the day she and her husband have been instructed to clear the third-floor apartment of the belongings they brought from
From
As
“There have always been people from throughout the country that profess to have
Mayor Beth Sabilia: does this look like the face of heartless eviction?
Here mayor Sabilia touches on one of the great agency risks of public-advocacy politics.
Time and again, in dealing with complicated properties facing a financial or affordability transaction, I have found that the resident advocates took positions far more extreme than the residents. Indeed, some resident advocates would encourage residents to reject deals palpably in their interest, in the name of a larger affordability principle. Some would go so far to distort, obfuscate, confuse, and flat-out lie about what was being proposed, all in service of a symbolic permanent affordability. While these advocates are only a few, a small subset sprinkled amid many fine and dedicated people and organizations, the potential for stakeholder hypnosis by a malevolent svengali organizer is, alas, all too common.
For now, she waits for the city to come knocking, for her chance to go to prison again, to stand up for the building, even if its owner has decided to move on.
And her plan after that?
“Come back and see if there’s any more buildings left to stand in front of,” Canario said.
Unless they walk away, the ingrates.
