A professor named Jedediah Purdy has taken to the internet — Democracy Journal.org — to tell us how wrong the critics of the Kelo case are. See http://democracyjournal.org/magazine/39/this-land-is-our-land-2/
While professor Purdy is free with the term “our land” he has not, to the best of our knowledge, offered to contribute to the cost of its maintenance — his use of the word “our” is thus a figure of speech. The trouble is that he (a) evidently has not read the facts of the case nor those surrounding the Kelo v. New London caper, and (b) he has no clue as to what actually happened in New London. And that is how it goes among the professoriate these days. Quoth Professor Purdy:
“New London is a depressed, post-industrial town on Connecticut’s Long Island Sound coast. The good jobs left the region decades ago. The poverty rate, at 25 percent, is two and a half times that of the state. In 2000, New London used the power of eminent domain to claim several blocks of houses, making room for a comprehensive redevelopment plan that centered on a promised Pfizer pharmaceutical facility. After the town paid the owners, it transferred the land to the developers. This sort of publicly subsidized private development is standard these days, with states and local governments bidding for factories, offices, and stadiums with promises of tax breaks, subsidies, and other giveaways. The New London homeowners, some elderly, some of whom had spent their lives in the houses, declined to sell and resisted the condemnation in court. “
The problem with this depiction of the Kelo controversy is that none of it happened. The subject property was not blighted and the town did not claim otherwise. What caused its immediate problems was the closure of a nearby Navy submarine base. But its bonds continued to be rated AA- because its tax revenue flow was good, and until Kelo came along, a municipal desire to increase tax revenue flow was not deemed to be “public use” within the meaning of the Fifth Amendment.
Taking things in order:
First, the taking was not of “several blocks,” but of 92 acres of waterfront land.
Second, The land was not transferred to a developer. That was the town’s intended sweetheart deal (for a dollar per year for 99 years) but the redevelopment project — in spite of the piffle the town sold to the Supreme Court’s majority — was so badly thought out that in the real world no one would touch it; the chosen developer could not even get financing, so it defaulted on the agreement with the city, and never got possession.
Third, the Pfizer pharmaceutical facility (a $300 million research center) was not what was built on the site; that research facility had already been built on nearby land before the Kelo case came along (it was another sweetheart deal — the director of the redevelopment entity was married to a Pfizer executive, so you can take it from there. The purpose of the Kelo taking was ostensibly to put up fancy commercial facilities and condos, a marina and a five-star hotel, to serve the highly paid high-tech employees of Pfizer with upscale facilities, and as far as the city was concerned, to generate more tax revenue.
In other words, for all the lawyer talk that New London deployed in its cause, and the Supreme Court’s majority swallowed whole, this was clearly not any “public use,” as required by the constitution, but a private sweetheart deal designed to benefit Pfizer and the city’s finances, using — or more accurately misusing — the power of government in the process. And we don’t care what the Connecticut courts had to say about that — the facts speak for themselves.
So what happened? Professor Purdy does not deign to take note of reality, but the great majority of Americans on both sides of the ideological spectrum, saw at once that this was no “public use” required by the Fifth Amendment, but rather an inept private deal designed to line Pfizer’s pockets at public expense and increase the city’s tax revenues.
And speaking of expense, Purdy fails to mention — musta slipped his mind — that the public was taken to the cleaners to the tune of some $100 million and got nothing — absolutely nothing — in return. The subject land is still a vacant, weed-overgrown wasteland that produces no taxes and serves no purpose. The town destroyed an unoffending lower middle class neighborhood to no purpose. Indeed, after the deal came a cropper, Pfizer hung around just long enough to collect the benefit of its tax abatement deal that the city thoughtfully threw in as part of the sweetheart deal, and then sold its research facility building and moved out of town taking some 1400 well paying jobs with it. A decade after the Supreme Court’s disastrous opinion, the land in question remains unused and the taxpayers are still out that $100 million. Some “public use.”
So much for the facts. We hope to deal with Professor Purdy’s legal analysis in a subsequent post. Stay tuned. For now we suggest that if you are interested in the Kelo caper, you read our law review article, Gideon Kanner, The Public Use Clause: Constitutional Mandate or “Hortatory Fluff”? 33 Pepperdine Law Review 635 (2006). Take a look at it. It’s a good read, even if we do say so ourselves, and it was recently selected by a bunch of land-use professors as one of the past decade’s best. Have at it. And stay tuned.
By the way, here is what that “well thought out” Kelo redevelopment project looks like today.