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Story behind court ruling resonates in isles


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POSTED: Sunday, September 20, 2009

You remember that line in the Stevie Wonder classic—“;For once I can say this is mine, you can't take it”;?

It turns out they can.

In 2005 in Kelo v. New London, the U.S. Supreme Court held the government can take a home and give it to a developer if the developer is projected to pay more taxes. Your property can be condemned if someone else may make “;better”; use of it than you do.

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A new book, “;Little Pink House: A True Story of Defiance and Courage,”; tells the story of Susette Kelo, the case's namesake who owned a little pink house in Connecticut taken by eminent domain. It's not a dry recounting of legal doctrines, but a fast-paced insider account explaining why property owners resist losing their land even in the face of overwhelming odds.

The book is of special interest to Hawaii readers. The U.S. Supreme Court majority relied on the 1984 case about Hawaii's Land Reform Act, which upheld the use of eminent domain by homeowners to take their leased fees. Also, the Hawaii Supreme Court last December ruled that local property owners are entitled to more legal protections than Susette Kelo.

Kelo had a tough background—an impoverished childhood, five children by age 25 and two failed marriages—and she seemed to pour all her aspirations into her modest home, which she refurbished herself and repainted its original pink.

No sooner had she settled in, however, than the New London Development Corporation came knocking. The NLDC wanted her entire neighborhood for a five-star hotel site, part of a package to entice a major pharmaceutical company to relocate to New London. She refused to believe the Fifth Amendment's “;public use”; requirement sanctioned the scheme.

               

     

 

”;LITTLE PINK HOUSE: A TRUE STORY OF DEFIANCE AND COURAGE”;

        By Jeff Benedict
       

Publisher: Grand Central Publishing

       

$26.99

       

 

       

The book destroys the myth that decisions about what property to take are the result of objective and transparent public processes. More often than we'd like to think, eminent domain dispossess the politically powerless of their land and businesses in favor of moneyed private insiders, and the claimed public benefits are incidental to overwhelming private gain.

In the end, Susette Kelo lost. The court agreed with the NLDC that a privately owned hotel was a public use of her little pink house. When Kelo refused to move from the neighborhood, it simply moved her neighborhood from around her: It bulldozed every house until only hers remained.

Hawaii's local governments are not immune from similar behavior, and in a series of two cases, Hawaii's courts went a long way toward repudiating Kelo's stained legacy. In 1998, the County of Hawaii agreed with the developer of the luxury Hokulia project to take land from Hokulia's neighbors for a road to service the project.

The developer told the landowners that if they did not give in, it would order the county to take their land. When one family objected, the developer did just that.

The county claimed the road would alleviate traffic, but the landowner asserted the taking was primarily for Hokulia's benefit. After seven years of litigation, a Kona Circuit Court ruled the taking was illegal because the county had, in effect, sold the decision whether to exercise eminent domain to the developer.

While that lawsuit was ongoing, the county filed a second lawsuit to take virtually the same land. The Hawaii Supreme Court vacated that taking and held courts should not accept government's claims that a taking serves a public purpose at face value and have a constitutional obligation to consider evidence of private benefit. That decision has been labeled the most important eminent domain case nationwide in 2008 and would not have been possible without Susette Kelo.

Read “;Little Pink House”; to find out why she—and Stevie Wonder—would be proud.

 

Robert H. Thomas is an attorney with the Honolulu firm Damon Key Leong Kupchak Hastert and filed a brief in the Kelo case supporting her. He is also one of the attorneys for the Kona family. His blog, www.inversecondemnation.com, deals with eminent domain and property law issues.