In 2001, Pfizer, Inc., moved to New London, Conn., as part of a project that involved massive corporate welfare and led to the abuse of eminent domain, culminating in the landmark U.S. Supreme Court case, Kelo v. City of New London in 2005. Even though Kelo had lost, the decision brought attention to eminent domain abuse around the country.
The 2009 book Little Pink House: A True Story of Defiance and Courage by Jeff Benedict tells the story of the New London controversy. The 2018 film Little Pink House is based on the book and stars Catherine Keener as Susette Kelo. In the landmark of Kelo v. City of New London,” the Supreme Court ruled that the government could use eminent domain to take private property from one and transfer it to another private entity for the purpose of economic development, essentially upholding the practice of transferring private property to another private entity through eminent domain.
Ironically Pfizer announced the closure of the New London research and development headquarters in November 2009.
In light of recent hurricanes and other burdensome government regulatory rules that dictate, when and if, a property owner is able to retain their land after a natural disaster; recent Court cases appear favorable to the property owner and is ripe for adjudication. Many legal scholars believe there is a legal argument to protect the land owner and to challenge “Strategic Buyout” programs that are designed to mitigate future economic harm and loss of life. What we need now are lawyers to file lawsuits on behalf of Plaintiffs who have been irreparably harmed by the new floodplain rules as it relates to specific Strategic Buyout Programs in numerous states.
Lawyers need to secure Plaintiffs and challenge state floodplain mitigation rules that forcibly coerce property owners to accept a property acquisition buyout offer. Two recent Supreme Court rulings on “Public Use” interpretation and how it diminishes our property rights under the Fifth Amendment Takings Clause is ripe for challenge for the people who are facing losing their property based on regulatory capture. In two landmark Supreme Court decisions Bridge Aina Le'a, LLC v. Hawaii Land Use Commission, No. 18-15738 (9th Cir. 2020), and the Kelo v. City of New London (2005), Justice Clarence wrote a dissent opinion arguing that the Court’s decision effectively replaced the “Public Use” requirement of the Takings Clause with a “Public Use” test, which he considered a misinterpretation. After the Supreme Court Kelo ruling, numerous states changed their eminent domain laws based on the controversial Kelo Supreme Court decision to protect private property rights.
The Supreme Court ruled in Hodel, Secretary of the Interior v. Irving et al., 481 U.S. 704 (1987).the “appellees have “standing to challenge § 207, which deprived them of the fractional interests they otherwise would have inherited. This is sufficient “injury-in-fact” to satisfy the case-or-controversy requirement of Article III of the Constitution. Moreover, the concerns of the “prudential standing doctrine are also satisfied, even though appellees do not assert that their own property rights have been taken unconstitutionally, but rather that their decedents' right to pass the property at death has been taken.”
In a more recent case Bridge Aina Le'a v. Hawaii Land Use Commission 2020, Supreme Court Justice Thomas forcibly rebuked the decision by dissent stating “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth.”
Justice Clarence Thomas went further in his dissent opinion highighting how exceedingly rare a property owner has won under the Takings Clause citing a “regulation effects a taking, we have said, whenever it “goes too far.”, See e.g., Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). This occurs categorically whenever a regulation requires a physical intrusion, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), or leaves land “without economically beneficial or productive options for its use,” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1018 (1992). But such cases are exceedingly rare. See, e.g., Brown & Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa Lev. 1847, 1849–1850 (2017) (noting that in more than 1,700 cases over a 25-year period, there were only 27 successful takings claims under Lucas—a success rate of just 1.6%. A Three-Part Balancing Test or One Strike Rule is “so vague and indeterminate that it invites unprincipled, subjective decision making” dependent upon the decisionmaker. Furthermore, the Four-Factor Penn Central Regulatory Takings Test “doctrine has become a compilation of moving parts that are neither individually coherent nor (collectively compatible”). “A know-it-when-you-see-it test is no good if one court sees it and another does not.”
The "regulatory takings clause" is part of the Fifth Amendment of the US Constitution, and it refers to a legal principle where government regulations can restrict property use to such a degree that it constitutes a "taking" of private property, requiring the government to provide just compensation to the property owner. But what is just compensation for the property owner when the government pays more for the property to meet their ideological ends instead of simply offering an equivalent dollar amount for reconstruction of the home or building?
The Takings Clause, fractional division of land, and converting private property for economic use or “Public Use” is ripe for adjudication both at the state and federal level. Whether a case should proceed at the state level, addressed at the legislative branch, or in federal court is up for debate. Some constitutional legal scholars argue a future legal challenge of the Takings Clause should be adjudicated at the state level while others argue it should be settled at the Supreme Court. A future challenge of the Takings Clause at the Supreme Court level would provide an opportunity to define a more “narrower interpretation of the “Public Interest” definition, when its proper for the government to seize private property for “Public Use” and bring more clarity to the States when adjudicating future disputes.
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