Anthony Flint is a fellow at the Lincoln Institute of Land Policy, a think tank in Cambridge, Massachusetts. He is the author of Modern Man: The Life of Le Corbusier, Architect of Tomorrow and Wrestling with Moses: How Jane Jacobs Took On New York's Master Builder and Transformed the American City.
The new movie Little Pink House dramatizes the Supreme Court decision that changed the way Americans saw eminent domain.
A Hollywood movie about eminent domain—you have to love it. The drama, heartbreak, and nail-biting suspense of urban planning, up on the big screen.
It helps that the heroine of the new film Little Pink House is out of central casting. Susette Kelo, a single mom and paramedic, was a classic holdout, refusing to go along with the government’s grand plans for redevelopment in the struggling waterfront city of New London, Connecticut. Played by Catherine Keener (in a Hollywood footnote, Brooke Shields was once interested in the role), Kelo fought City Hall and took her case all the way to the Supreme Court.
And, it’s important to point out, lost.
The 5-4 decision in Kelo v. New London in 2005 affirmed states’ ability to use eminent domain for economic development, under the interpretation of one key phrase of the 5th amendment of the U.S. Constitution: “nor shall private property be taken for public use, without just compensation.”
But Kelo’s backers ended up winning for losing, as planners across the country got spooked, and some 45 states moved to restrict the use of eminent domain; pro-property rights forces were invigorated for court cases to come, vigilant against other kinds of infringements on private landowners—including regulations characterized as so onerous they might as well be a physical taking. The case attracted strange bedfellows: Jane Jacobs, Ralph Nader, and the NAACP lined up on Kelo’s side, as did Rush Limbaugh and assorted libertarians. It dovetailed with the Tea Party movement, stirring further suspicions about deep-state government treading on basic freedoms.
The story itself is indeed tragic. Post-industrial New London, like New Haven, Bridgeport, and Hartford, has long sought regeneration. The city boasts many elements that could help it rebound: a stop on the Amtrak Acela Northeast Corridor line, a busy ferry terminal and waterfront, eds and meds, industry, and a sense of place. But, like many smaller legacy cities, it has been challenged.
Just about two decades ago, Connecticut Republican Governor John G. Rowland moved to jump-start the local economy, installing a local college president as head of the New London Economic Development Corporation and luring the pharmaceutical giant Pfizer, then on the brink of releasing a profitable little pill called Viagra, to inhabit a massive redevelopment site on the banks of the Thames River. About 90 key acres were at Fort Trumbull, which required the demolition of more than 100 residences and two dozen small businesses. Most sold their property voluntarily; Kelo and 6 others refused, and the fight was on.
Written and directed by Courtney Balaker and based on a 2009 book by Jeff Benedict of the same title, Little Pink House sweeps up all the drama of this David-and-Goliath battle. Kelo was ultimately compensated quite well—$442,000, three times the original appraisal. Today the eponymous home still stands, symbolically re-assembled and moved nearby, and with a plaque out front, perhaps as an inspiration to others. The development deal itself disintegrated, leaving New London pretty much back where it started.
Lessons from this mess fall into two categories: planning and the law. Litigator Dana Berliner from the Institute for Justice (which is depicted in the film, in the person of Kelo’s heroic lawyer), thinks the case shows, among other things, the dangers of top-down, grand-scheme planning. Earlier this month at the annual Lincoln Institute journalists’ forum that I help organize, she appeared to talk about the case with Harvard professor Jerold Kayden, an expert on property rights jurisprudence. As today’s developers and planners know well, community engagement is paramount.
There was virtually no flexibility, needlessly, in New London; the redevelopment could have been reconfigured to avoid destroying houses, but the project team never really entertained that idea, just as Robert Moses refused to move the Cross-Bronx Expressway alignment by a few blocks to spare some destruction.
Eminent domain wasn’t really the entire villain in this story; there are plenty of examples of the justified and responsible use of the tool. Today it is considered more of a last resort, and it’s bad form to just throw around the term “blight” to justify massive disruption. Now the emphasis is on the rational assembly of disparate parcels, particularly for infill projects that otherwise wouldn’t be coherent. Good planning, design, and placemaking—and understanding the community and the needs of stakeholders—have never been more important. The big silver-bullet approach often isn’t as productive as more targeted, incremental efforts that build on the good urbanism of small cities like New London.
In terms of land and the law, Kelo wasn’t a game-changer in the long march of court cases that have defined the balance between government actions and private property rights—Pennsylvania Coal v. Mahon, Penn Central v. New York, Nollan v. California Coastal Commission, Dolan v. City of Tigard, Lucas v. South Carolina Coastal Council, and more recently Koontz v. St. Johns River Water Management District. But the national publicity that this case kicked up still hangs heavily in the air.
There will surely be another test of whether government goes “too far,” the standard established by Justice Oliver Wendell Holmes back in 1922 in the Pennsylvania Coal case. Notably, the newest Supreme Court Justice, Neil Gorsuch, opposes the Kelo decision and railed against it when it was announced. As city leaders and planners anticipate that next showdown, they may find it hard to get New London out of their heads, just like when John Cougar Mellencamp’s “Little Pink Houses” comes on the radio.