The Perils of Pauline – Take Four

It occurs to us that our younger readers may not be familiar with the term “The Perils of Pauline,” so we better explain. It was an old movie serial — a film with a story line stretchnig over multiple episodes. Pauline was the heroine who at the end of eaxh episode always wound up in peril, like being tied to railroad tracks with a train coming. She was always rescued at the last moment — in the next episode, so the movie makers kept the audience in suspense, and you had to go to the movies every week to find out how it all came out.

It has been sort of like that with the New London redevelopment project that gave rise to the wretched Kelo case. When last we blogged on that subject, on December 11, 2007, Corcoran-Jamison,  the redeveloper in charge of the Fort Trumbull project ‘fessed up:  after several years of planning, it had not been able to secure financing for the redevelopment project, and had to ask for an extension of time until the end of May to give it time to go schnorring to the feds, imploring them to cross its palm with silver so it could build some upscale, top-of the-market dwellings to replace the lower middle class neighborhood that the city of New London acquired for it by eminent domain and then destroyed to make room for its fancy planned redevelopment. 

The end of May is not yet upon us, but the New London folks figure that what with the economy going into the toilet and all, it appears unlikely that the funds will become available.  The New London newspaper, The Day, reports in an article by Kevin Dale (Fort Trumbull Housing Plan in Jeopardy) that New London’s redevelopment agency (NLDC) figures that it’s unlikely that Corcoran-Jamison will get its hands on the funds necessary for the project to proceed. So these folks are talking about “creative financing” — a term that usually causes us to grab our wallet whenever we hear it, to make sure it’s still there — whereby Corcoran-Jamison would kick in some $4 million of its own funds on top of the loan, and proceed that way. But the problem is that according to the Day article, even that will leave a $3.5 million gap in financrng, that no one in sight is eager to fund. And so it goes.

What makes this saga of delay and ineptitude particularly galling is that when the Kelo case was in the Supreme Court, New London carried the day by persuading the Justices that it had these wonderful, thoroughly vetted redevelopment plans, prepared by experts, so that the Court could rely on the city’s representations, and approve the taking of the homes of Suzette Kelo and her neighbors for the sake of this wonderful municipal plan. Now it turns out, the “plan” is a triumph of hope over reality, that shows little promise of materializing. The municipal planners behind this plan, who gave such expansive planning assurances to the Supreme Court, can’t even find the financing necessary for their “expertly planned” project.

That leaves one loose thread. Given these facts, aren’t the Supreme Court Justices who inflicted the Kelo atrocity on the country ashamed of themselves?  Aren’t they angry over having been snookered into approving  in this fashioon a supposedly well planned project that — now we learn — can’t even get off the ground for lack of financing? True enough, no one can hold the Justices accountable for the city’s ineptitude, but shuldn’t they at least provide a minimally effective standard of review so chances for things like that happening are minimized?

Many years ago Justice Musmanno of the Pennsylvania Supreme court observed in an eminent domain case in which the right to take was being challenged, that “The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders, commands or directives are not subject to review.” Winger v. Aires, 89 A.2d 521, 522 (Pa. 1952).  Those who disregard that civic verity are courting the kind of human tragedy and economic disaster that has been unfolding in New London as the aftermath of the Kelo case — a middle-class community scattered to the four winds, and over $70 million in public funds blown, with nothing to show for it thus far.

Update: The May 1, 2008, editorial entitled No More Second Chances, in The Day, calls upon the City of New London to grant no more extensions to the current redeveloper, to select a new one and restart from scratch if financing is not obtained within the present, already extended, deadline of end of May.

2 thoughts on “The Perils of Pauline – Take Four

  1. Ben Snaider

    As you well know, the Supreme Court decided Kelo on very limited grounds; that the Connecticut legislature had the authority to declare “economic development” a public purpose. If the issue of the feasability of actually carrying out the economic development and redevelopment plans could and would be raised, before private property could be condemned very few such projects would be undertaken in Connecticut and I suspect in other jurisdictions as well.

  2. Gideon Kanner

    In fact, the feasibility of actually carrying out the project for which the subject property is being taken, is inquired into by some courts under the rubric of public necessity, and there is no indication that condemnations in those states have been impeded. Florida is one of them (see Knappen v. Division of Administration, 352 So.2d 885, 891 (Fla.App. 1977)), but nonetheless there has historically been more acquisition of private property through condemnation in Florida than in most, if not all, other states.

    Kelo’s major flaw is that it throws the door open to pretextual condemnations. The condemnor gives lip service to its plans and that’s that. It facilitates fraud on the part of government (see Rosenthal & Rosenthal, Inc. v. NY State Urban Dev. Corp., 605 F.Supp. 612, 618 (S.D.N.Y. 1985) refusing to consider owner’s allegations that the project boundaries were corruptly drawn to enrich well-connected friends of the Mayor).

    More important, this reasoning — that it’s up to the legislative branch of government to define the constitutional term “public use” — is at war with American constitutional law. In other fields of law, including land use, the Supreme Court says that it’s unconstitutional for the legislature to define constitutional terms. Why should it be different in eminent domain?

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