The church, founded in 1865, would be seized with 11 acres of land for 10 pickleball courts, a soccer field, and a playground with a nautical theme. The move follows months of heated debate over the church’s plan for an affordable housing nonprofit on the site. However, Mayor Daniel T. Rodrick insisted that the timing is a pure “coincidence.”
The case could put the Court in a pickle in forcing a reconsideration of Kelo. I have long been a critic of Kelo and have raised various cases that might be used to reverse the ill-considered precedent. The Court has steadfastly refused to do so.
Many expressed outrage at the actions of the city leaders of New London, Connecticut, when they used eminent domain to seize the property of citizens against their will to give it to the Pfizer corporation.
This anger grew with the inexplicable decision of the Supreme Court in Kelo to uphold the abusive action. After all the pain that the city caused its own residents and the $80 million it spent to buy and bulldoze the property, it came to nothing. Pfizer later announced that it was closing the facility — leaving the city worse off than when it began.
I will not repeat my fundamental disagreement with the interpretation of the eminent domain power. For my prior testimony on the Kelo decision, click here.
There is a critical difference in this case, and I would have preferred some other cases to be the vehicle for review. The biggest difference is that this would be a more classic use of eminent domain, utilizing the property for the public purpose of a park.
However, the case does raise the question of a pretextual rationale for the use of eminent domain. Again, it is not clear whether this action will result in land being handed over in part to a private developer or business.
In the end, the pretextual aspect is interesting but does not offer a clean shot at Kelo. The public use of a park distinguished the pickleball courts from the Pfizer facility. That does not mean that this is not a worthy or major case. There are ample reasons to be concerned about the actions in this case if they are a form of retaliation for the church’s shelter plan. It just may not be the rematch that many of us have been waiting for on the question of eminent domain.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School, where he teaches a course on the Supreme Court and the Constitution.