Little Pink House: A True Story of Defiance and Courage - Articles

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Posted by: Clark Tidwell on Aug 27, 2009

Journal Issue Date: Sep 2009

Journal Name: September 2009 - Vol. 45, No. 9

By Jeff Benedict | Grand Central Publishing | $26.99 | 416 pages | 2009

Author Jeff Benedict's book Little Pink House is about what lawyers who practice eminent domain already know. Condemnation cases are about people rather than property.

Little Pink House's owner, Susette Kelo, is the perfect landowner client with a hardscrabble life. Her father abandoned the family; she endured teenage motherhood and two failed marriages.

After striking out on her own as an EMT, she noticed a little pink house in New London, Connecticut, and bought it " it became her life. "I have never been happier," she says about her first day as a new property owner, "sitting on the porch rocker watching the water go by."

Little did Ms. Kelo know that the New London Development Corporation (NLDC) led by the imperious Claire Gaudiani would soon begin a plan to develop the neighborhood in order to lure pharmaceutical giant Pfizer and raise the tax base. Ms. Gaudiani was relentless in pursuing NLDC's goal, comparing her mission to Jesus and Martin Luther King, but oblivious to the desire of Ms. Kelo and her neighbors to keep their property and their passion in fighting the government and the politically well-connected.

The resulting battle is now famous. But who won?

Ms. Kelo lost in the U.S. Supreme Court by a vote of 5 to 4 which decided that private property could be taken so long as government might expect some eventual public benefit. "There is no basis for exempting economic development from our traditional broad understanding of public purpose," wrote Justice John Paul Stevens. However, the backlash to the majority decision has increased public awareness about the power of eminent domain. Just about every prospective juror in a condemnation case is asked about it in depth on voir dire, and contrary to pre-Kelo, most citizens now know what it is and have an opinion.

NLDC's victory over Ms. Kelo in obtaining permission to condemn Ms. Kelo's small parcel has generated a legislative response. The Tennessee General Assembly, along with more than 40 other states, has sought to tighten condemnation procedures under the state constitution. Despite the outcome in Kelo, public opposition seems to have had a somewhat chilling affect on the will of government to condemn for private economic development. As Benedict says, "Nobody particularly likes it."

Benedict has a law degree and documents eight years of the Kelo litigation, relying upon interviews with those on both sides, but he does not tread deeply into the legal issues. He does focus upon Ms. Kelo's lawyer, Scott Bullock. Subsequently, Mr. Bullock enjoyed more success as a member of the legal team representing Nashville's Joy Ford, whose Music Row property was sought by the Metropolitan Development and Housing Agency (MDHA) to sell to a hotel developer. A condemnation petition was filed against Ms. Ford by MDHA. The parties reached a settlement whereby Ms. Ford kept most of her property and received additional property to boot.

Benedict writes that the "Supreme Court changed the rules" in the application of the Fifth Amendment's Takings Clause which says "... nor shall private property be taken for public use, without just compensation." However, Kelo follows a line of cases which expands the Takings Clause permitting condemnation to remove urban blight. Dozens of cities in the United States have eliminated slums using the power of eminent domain.

For most of us, eminent domain litigation is rarely over the right to take, but how much the land is worth and how to prove it. Rarely will practioners encounter corrupt local government officials condemning for the exclusive benefit of private developers. Most Americans still believe that ownership of land yields to a purpose that clearly benefits the public as a whole. This approach has permitted taking private property for roads, schools, public buildings and electrical distribution. For most clients it is about just compensation for what has been taken.

Post-script: It has been four years since Kelo was decided. Ms. Kelo's house has been moved to a new location in downtown New London where it is designated a historic landmark. Ironically, nothing has been built in the old neighborhood where it used to stand.

CLARK H. TIDWELL is a senior member of Lassiter, Tidwell, Davis, Keller & Hogan PLLC. He restricts his practice to eminent domain law.