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New London Severs Ties with NLDC:

Sorry to keep coming back to the Kelo story, but the whole thing continues to get more and more strange. AP is now reporting that the City of New London has voted to sever ties with the New London Development Corporation and to order the NLDC to turn over the affected properties to the City:

New London severs ties with development authority October 18, 2005, 6:37 AM EDT

NEW LONDON, Conn. — The city council has voted to sever ties with the quasi-public development authority at the center of a national debate over eminent domain powers.

The council voted 6-0 Monday night to revoke the designation of the New London Development Corp. as the city's "implementing agency" for its Fort Trumbull development. The agency has guided the $73 million state-funded project since its inception in 1998.

***

State officials had asked municipalities to hold off on property seizures until the legislature considers changing the state's eminent domain laws.

City officials asked the development authorities' two leaders to resign, but they declined. They did rescind the orders to vacate under pressure from Gov. M. Jodi Rell.

But council members said they could no longer deal with an agency that disregared the city's rights as a development partner and the wishes of the community.

"I don't think you can continue a partnership where there's only one partner saying, 'I'm willing to go back and forth,' and the other's saying, 'I've heard you, but I'm going the other way,"' Councilor Rob Pero said.

The council also voted Monday to demand the agency transfer title to all its real estate in the project area to the city of New London. That includes the former Naval Undersea Warfare Center at Fort Trumbull, which was transferred by the U.S. government to the development authority, not the city.

Update:

Tom Blumer has another amazing update on this story, "State Upset With City's NLDC Vote":

State development officials reacted angrily Tuesday to the City Council's vote the previous night to strip the quasi-public New London Development Corp. of its control of the Fort Trumbull project, saying the action took the state by surprise.

***

….. Meanwhile, the holdouts of the Fort Trumbull neighborhood, while cheered to hear what the council had done, were skeptical as to its motives.

"It should have happened a long time ago," said Byron Athenian. "Let's face it, the NLDC has never done anything right since the beginning."

But Athenian said he thinks the whole thing may come down to politics.

"It's election year," he said. "Maybe they did it because of that. You don't know who to believe. You don't know that you can believe the City Council, either."

Bill von Winkle said the council's decision was "certainly long overdue."

For his part, he said, he has taken comfort in Rell's interest in the case.

"I've just signed the contract to put a new roof on my house, so I'm pretty confident that we're staying," he said. "The governor is going to protect the homeowners of this state. She's stated she's interested in keeping the homes and working around us. With the arrogance of the NLDC gone, maybe that can happen."

Michael Cristofaro, who is challenging the incumbent council members with his One New London political campaign, was more skeptical, saying the council acted because members were "running scared" weeks before an election.

He also doubted that the solution to the problem was as simple as the current council seems to think it is.

"The NLDC has weaved themselves a nice little web, and I think to unweave that web is going to be a disaster," Cristofaro said. "How do you get the property out of the NLDC's name? It's a great concept to say you're fired, but are they really fired?"

Interestingly, when I spoke to the Georgetown Federalist Society about Kelo, I mentioned thr ongoing civil war between the city council and the NLDC, and one of the pro-Kelo panelists observed that it would be a problem if the NLDC was acting in a manner so contrary to the wishes of the city's elected officials, but expressed skepticism that this was plausible.

This whole story really just continues to get more and more bizarre every day.

Steve:
Perhaps there is a creative constitutional argument that governmental bodies should not be able to delegate their eminent domain power to "quasi-public entities" such as the NLDC. Just as there are limits on how much rulemaking authority Congress can delegate to administrative agencies, because the voters need to be able to hold someone accountable for bad decisions, maybe state and local governments shouldn't be able to slough off the responsibility for unpopular eminent domain decisions. It's worth thinking about.
10.19.2005 5:45pm
Jim Lindgren (mail):
You quote:


The council also voted Monday to demand the agency transfer title to all its real estate in the project area to the city of New London. That includes the former Naval Undersea Warfare Center at Fort Trumbull, which was transferred by the U.S. government to the development authority, not the city.

So, the Development Agency can't keep the property even if it wants to. All the city has to do is condemn the Naval Center under eminent domain to get it. Of course, they may have to pay for it, depending on the property rights at stake.
10.19.2005 7:11pm
tefta2 (mail):
Whatever the legalities turn out to be|, the city and the Development Agy were working under the radar and now they're in the spotlight feeling the full force of negative public opinion.

This might turn out to be even better than if the court denied the petition because it will force state legislatures to safeguard their own citizens.
10.19.2005 8:13pm
David Sucher (mail) (www):
You shouldn't apologize, even rhetorically.
Kelo is a very significant story in legal and urban planning terms.
10.19.2005 8:21pm
Mark H.:
In the meantime those poor families sit in their houses (formerly their homes) and wonder which politician will do what to them next, all the while accruing large rent bills eating away at the ultimate compensation for the houses.

No doubt, if by some miracle they keep the houses, they'll end up with liens on the deeds for the rent that was due in the interim period.
10.19.2005 8:22pm
cfw (mail):
The City and/or NLDC can of course elect not to take title to Kelo property after commencing ED proceedings. Presumably the City or NLDC will need to pay the attorneys fees of Kelo, et al.

If that is what the City voters want, more power to them. I see nothing unprecedented about starting and stopping ED proceedings. The fact that public outcry might stop the Kelo proceedings suggests no need for elaborate changes in the CT statute, no?

Kelo counsel proposed sort of uniform set of statute changes when they testified in Congress. Nothing too remarkable, in my view, or particularly difficult to "work around" to get to use of ED for privately managed and operated projects.
10.19.2005 8:38pm
David M. Nieporent (www):
If that is what the City voters want, more power to them. I see nothing unprecedented about starting and stopping ED proceedings. The fact that public outcry might stop the Kelo proceedings suggests no need for elaborate changes in the CT statute, no?

No. One's rights should not be dependent on being lucky enough to generate public sympathy for oneself.
10.20.2005 4:27am
djw (mail):
No, the story doesn't get any more bizarre. It simply plays out the fact that although Kelo was legally correct, it was probably poor local politics. This should never have been a court matter.

David M. Nieporent wrote:

No. One's rights should not be dependent on being lucky enough to generate public sympathy for oneself.

No, this is not an issue of rights as the eminent domain rights are clear to any property owner. (That said, there does appear to be a libertarian element who wish to read some unwritten property rights into the constitution -- but that's another discussion!). "Public sympathy" is a perfectly ordinary element in policy making by elected officials. It may well be that a particular case of "public sympathy" is unconvincing or even embarrassing to you or me, but the essential right in this case, if not responsibility, is for us to then offer the more convincing counter argument.
10.20.2005 6:35am
perryair:
Djw,

Help me out here - I base the entirely of how i feel about this case upon how i read - "nor shall private property be taken for public use, without just compensation."

And my definition of the word "public" having no intersect with what was planned at New London. Other ED cases i base some measure of uncomfortableness at how "just compensation" is defined.. but that being besides the point here.

Not being a legal scholar of any sort rather than the purely recreational, am I really reading something in there that isn't there? I don't see why this shouldn't be a matter that is decided in courts as a way to check the government's own definitons of those words though time.
10.20.2005 11:15am
corngrower:
Djw

I must concur with perryair." nor shall private property be taken for public use, without just compensation."

Please explain how a hotel and a shopping mall are 'for public use'. If as a great scholar of the constitution, as the entire majority in this decision are, then why change one word in the very document that you have sworn to uphold? 'For public use' (that's the Constitutution), to 'for public good' ( that's from the majority decision). H . Miers is under huge discussion, for among other things, can't use commas right. Well is seems that five sitting SCOTUS justices can't discern the difference between, 'use' and 'good'.

Public sympathy? Really? So the public has no input? I have written a letter to each and every elected official I have a vote on, and asked him or her, if they would take property from one private entity, and sell the property to another private entity. The response has been very bad. I mean, a response from only a small handful. But I will get an answer on the next election cycle.

Is for us to then offer the more convincing counter argument

A counter argument to not adhering to the Constitution? You understand that every square inch of this nation could be considered 'for public good' right? If a home is not 'for public good' than how is a hotel 'for public good'?
10.20.2005 2:42pm
cfw (mail):
Public purpose is a seriously difficult concept to define, and has been since the 1700's. Look at Thomas in Kelo: a mill owner floods land so the "public" (neighbors) can grind grain. Blackstone (and Thomas) call that public use.

Does the City need to own the land? Forever? Can it contract out operations - such as having Yale build and run (on a "turnkey" basis) an 80% private hospital on land taken by ED?

Is a canal public or private? A railroad? Does the railroad become public if Amtrak runs the railroad? What if the public ownership of Amtrak is ended (company privatized)?

A stadium? Does it matter if it is Dodger Stadium or the place in Arlington, Texas? Title is in privatre hands in LA, public hands in TX, I believe. Is that the test - who holds the title paper? Is that the only test? What text from 1787 tells us what is the correct test (or tests) to apply?

One needs to look at the legal history before saying "how could the language public use be more clear?" It is in fact as slippery a concept as "due process" or "equal protection" or "cruel and unusual punishment", yes?
10.20.2005 3:38pm
corngrower:
Public use

cfw you are an attourney, or wanta be. The minutia you use to confuse the debate is admirable.

The stare decicis is plain. ya cant use emminett domain to take the property of one individual for the gain of another individual.

Take this to its logical conclussion. That part in the constitution that the govt can only take private property using emminent domain for public use and use your deffinition. Hey we think, maybe, this, maybe, should be a good thing, Railroads? how do you build them if ya cant get the ground? (an aside, when that ground was taken, the legal documents at the time said ' if it aint no longer a railroad the original landowner or adjacent landowners have first dibs') just seems that the law in these cases have been preempted by local govts that want a bike trail.

And at last, Read the majority decission. It does not say 'public use' the decission say's 'public good'. this a concious change in the constitution that circumvents the process of the constitutional ammendment process.
10.20.2005 4:12pm
perryair:
cfw,

But thats my point exactly again - he says that we libertarians read things into the constitution that arent there and that there is no reason for ths to be in front of a court. I find it a perfect reason to be in front of the court in order for them to have some sort of say on what 'public' really means these days.

Yes there are a lot of difficult questions to ask in regards to something like this, but because they are difficult does that mean they shouldn't be asked?

I don't know exactly where i'd draw the line but i'd think it should stop somewhere before - "taking of someone elses private property to order to give said property to another preferred individual or group". We're almost Mugabe at that point.
10.20.2005 6:59pm
Public_Defender:
No. One's rights should not be dependent on being lucky enough to generate public sympathy for oneself.

This sounds like you are trying to make the case for the judicial recognition of same-sex marriage. But that's another thread.
10.21.2005 5:20am
Scott Scheule (mail) (www):
Yeah, I haven't forgotten, Professor. Also, the pro-Kelo panelist in question has yet to send me any of the materials he said existed in support of his contra-Thomas reading of the Public Use Clause, despite my polite request. It could well be that you were right.
10.21.2005 2:57pm
Public_Defender:
So, the Development Agency can't keep the property even if it wants to. All the city has to do is condemn the Naval Center under eminent domain to get it. Of course, they may have to pay for it, depending on the property rights at stake.
You are missing another power the city might have--zoning and demolition permits. If the city re-re-zoned the area for single family homes and refused demolition permits, it would throw a monkey wrench into the process.

It would be hard (but perhaps not impossible) for the NLDC to argue that zoning land to reflect its current use is a taking.
10.24.2005 9:57am