S01E02 -

It’s narrow to think of it as just land and asset, dollars on value.

Eminent domain is the power of government to take someone’s property away from them. And there are two requirements for government to exercise eminent domain, it has to be for a public use and it has to be justly compensated.

Music by Cellophane Sam.


00:15 Tess Terrible: What is home? I grew up in New Hampshire in an old colonial house built in the late 1800s. My parents still live there. They’re getting older and the house requires a lot of work and upkeep. Every hard winter we have, my parents talk about selling, but we don’t really have the heart to put the For Sale sign out. It’s our family home. For me it’s the place of countless birthdays, sleepovers and family memories. The idea of selling that house breaks my heart.


00:50 Tess Terrible: The definition of home might vary from person to person but it has a universal importance and sentiment far beyond land and property value.


01:07 Tess Terrible: This is The Pursuit, a podcast about government action and individual liberty. I’m Tess Terrible.


01:22 Tess Terrible: In this season of The Pursuit, we are exploring property rights and government action. We’re going to start with eminent domain. This is Trevor Burrus, research fellow here at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, and co‐​host of Free Thoughts Podcast.

01:40 Trevor Burrus: For some people, they think that eminent domain is an essential government power. And here’s a kind of situation where they would think it’s essential. There’s a road that’s being built and a bunch of houses are gonna be bought by the government, and they just buy it to build the road and the road is gonna benefit the public in some way. There’s a bunch of stuff in the Fifth Amendment, Due Process Clause, and the right against self‐​incrimination, but one of the things at the end of the Fifth Amendment is a clause that says, “Nor shall private property be taken for public use without just compensation.” This is the Takings Clause. It says the private property being taken and it has to be, be taken for public use and if they take it for public use, they have to provide the owner with just compensation. When this occurs is when, for example, they want to build a park or a road or an airport or other things that the government generally says that’s good for the public.

02:32 Tess Terrible: In most cases, eminent domain is used to take physical property. Government then pays the owner just compensation or fair market value. Government can’t force an owner to sell their property for less than a fair price, a price they wouldn’t take from a private buyer. Public use requires government to use the property for a public benefit, a public road, an airport, etcetera.

02:57 Trevor Burrus: Eminent domain, they talk about things that, such as roads and schools and public parks and things that generally people can accept is a public use. But when we start talking about things that benefit the public, that becomes a very very kind of expansively possible definition of public use. The most famous example of this is in the Kelo case, wherein the argument was that taking this woman’s house in order to do a development with businesses, including Pfizer, and hopefully restaurants and stores and things like that would raise the tax base and raise more money for the town of New London, Connecticut and that itself was a public use. Getting more money from tax revenue was a public use.


03:41 Tess Terrible: The case Trevor mentions here is the infamous Kelo versus New London case, decided in 2005. We’ll learn more about that case later. For now, I’d like to introduce a case that illustrates how eminent domain is affecting us today.

03:58 Tess Terrible: The town of Brookline, Massachusetts, situated directly outside of Boston. 14% of Brookline residents hold a doctorate degree, the largest percentage of any town in the United States. Higher education is one of the biggest industries in the Boston area. The Boston area is the home of big‐​name universities, such as MIT and Harvard University. But it also includes small colleges like Pine Manor College.

04:28 Tom O’Reilly: Pine Manor College is a place that is small in size, and we often joke, “The great thing about Pine Manor College is that everybody knows your name. The bad thing about Pine Manor College is that everybody knows your name.”

04:40 Tess Terrible: This is Tom O’Reilly, he’s the president of Pine Manor College. In fall 2017, he received some news concerning Pine Manor College and the Brookline Public School District.

04:52 Tom O’Reilly: Tuesday morning after Labor Day, my office got a call for an emergency meeting with the Town Administrator and the chair of the board of selectmen to meet with them, and of course I made room on my calendar given it was called an emergency. And they came in and said, we’re going to be meeting in executive closed session today and that during that time we will be discussing legal strategies. And my question to them was, “Well, what’s that got to do with the college and me?” And they said, “Well, one of the legal strategies we’re gonna discuss is whether or not to take… include Pine Manor College in the consideration for taking that land for eminent domain purposes in order to build a school.” And I was shocked, said, “Wait a minute, there must be a process. How does this work? Tell me the rest of the story here.” And they said, “Well, it’s just gonna be a strategy discussion. We will give you a heads up if we’re gonna do anything further.” Two weeks later on a Tuesday afternoon, around 3 o’clock, I get a phone call from the Town Administrator saying, “As promised, I wanted to give you a heads up, we are going to recommend that Pine Manor College be looked at as a location for eminent domain action in order for the town to build a school.”

06:01 Tess Terrible: Tom told me the school is not looking to sell any portion of their campus, but Pine Manor could be forced to. The town could use eminent domain to force the small private college to sell.

06:13 Tom O’Reilly: The town of Brookline is proposing to take seven acres of land from Pine Manor College, a private four‐​year liberal arts college, in order to build a public school. The town has limitations or feels as though their enrollment needs are driving their need to build an additional school. And they believe that they would be best suited if it’s located on Pine Manor College’s property. The town is proposing to take the front gate of the college… The front gateway of the college, which is about seven acres, seven to eight acres. It is relatively flat land, it is where today we have many of our sports practice areas. We have a softball diamond, we have a pond. That area is used as the traditional venue for our graduation sites. It is used as the practice sites for our nearly 40% student population that are student athletes. It is an area that has mature trees. It is property that was prepared and the plantings were sited by James Arnold, who is the Arnold of Arboretum fame, and which is one of the most distinguished park lands in Boston. It is a unique feature to the college. It represents about a little more than 50% of our open space. We believe that it’s very important to the visual beauty and importance of the campus.

07:45 Tess Terrible: Pine Manor College is indeed a really small college. It’s certainly not as well‐​known as some of the bigger colleges in this area. This is Jonathan. He’s a student at Pine Manor College.

07:57 Jonathan: A little bit of background about me is, like I said, I’m from Oakland, California. There’s only three options, honestly, when you’re back in Oakland. It’s either you do the right things, you hang around the wrong people, you’re in jail, or you’re dead. For those things, I went to a small, private high school, very small Christian school, where my brother and I both went. It was small. There was some things that I wish I could change, but it was the best for me. And, yeah, it made me kind of who I am today to get to kinda where I’m at now.

08:28 Tess Terrible: Like a lot of students at Pine Manor, Jonathan is worried about this case.

08:33 Jonathan: I don’t think it’s a good idea at all. The reasons why, I can say is, first of all, it’s so busy now. Having another school with kids and all that stuff, that’d just be horrendous. And second off, it’s a college campus. We wanna be able to enjoy our experience with people that are our age, not little kids walking by and, no offense, whoever has been to college would know that they had the time of their lives. They did crazy things. And you don’t want kids to see that. And I don’t think parents would wanna see their kids, like, “Mommy, I just saw somebody just do this.” Or “They said this.” And those things are definitely not things that should be on this campus.

09:18 Tom O’Reilly: First of all, it’s a shame that, what the town has done, in this case, the town officials have done is, they’ve pitted two very important educational missions against each other. It’s the only situation of the possibilities they have in front of them that does that. So first and foremost, what they’ve done is pit two important educational missions against each other. Secondly, by proposing Pine Manor College, they propose the only proposal that puts at risk an educational institution. And third, it’s the only proposal that would use up seven acres of open space.

09:55 Tess Terrible: How are your students holding up?

09:57 Tom O’Reilly: Well, it’s interesting, people ask that question a lot. And I think what’s important to know about the students at Pine Manor College, in selecting Pine Manor College, they had choice. And they’ve had a lot of obstacles thrown in front of them. Most of our students are working about 30 hours a week to help pay for their college. They’re borrowing money to pay for college. They’ve got their heads down and they’re working hard. So I would say, our students are taking it well. I’d say they’re taking it well because it feels like one more roadblock that somebody’s throwing in front of them. I’d say they’re doing well because when we brought them here, we brought them here because they had that grit and resiliency to get through things. But I don’t think they should have to be just doing well. I don’t think they should have to have this burden thrown at them. They didn’t do anything to cause this burden to exist.


10:47 Jonathan: People, financially wise, they were saying that our school’s gonna close down. There was a lot of things going around on the news. Kids… We even got the message, like screenshots people were sending around. And I think for that, it was kind of a worry for me. I was like, “Oh man, my school might be closing down.” I’ve put so much to come here. But I think, definitely this school right here, is just continuing to show that we continue to fight, no matter what. We’re not just gonna lay down low, no matter what. As students, as faculty, anybody who was able to step on this campus just for one moment and have a day in the life with a Pine Manor student or our faculty, they would see how unique it is, and why we are Pine Manor College and why we’re so amazing.

11:32 Tom O’Reilly: Today, we’re a college that serves 85% students of color, we are co‐​educational, 84% of our students are first in their families to attend college, 80% are low income, 50% are multilingual. Most of our students are coming from communities that are densely packed. They come from predominantly inner city environments. They come to places where they don’t have the open landscape that we have here. That’s one of the things that gives them vision, hope, aspirations. It reinforces what they want and it shows them that they’re on the track to get there. I think it’s narrow to think of it as just land and asset, dollars on value. But we wanna think about it in terms of values and what it means. It’s like the town meeting member who came in to me and said, “Are we talking $27 million or what?” And my response to him was, “You see, that’s the problem. You’re talking dollars and I’m talking values. You’re talking about real estate and I’m talking about what matters.” What the town is saying to me, it’s just land. And what I am saying to the town is, it’s not just land. It’s part of the whole.

12:54 Tom O’Reilly: So I believe that it’s too great to risk — the outcomes that this college is having, success rate with graduation, the population we’re serving, and the career in graduate school, opportunities they get when they finish — to just say, “It’ll be okay.” My view is, that it’s important for me to protect what’s working here, to enhance what’s working here, and to make sure people know what’s working here because the population we’re serving is too important to be left behind and to be left at risk.


13:33 Tess Terrible: This is eminent domain, government power to take private property for public use. Government taking land from a private school to give to the public school district. There is no way that Pine Manor would sell willingly. Tom O’Reilly explained to me, there is no just compensation here. There is no fair market price. It would be a bigger loss to the campus than a financial gain. They view that land as vital to the campus.

14:07 Tess Terrible: We’ll come back to Pine Manor College. For now, I would like to provide more background on eminent domain. To do so, we need to go back to 2005, to the Supreme Court case Kelo versus New London. This is Scott Bullock, president and general counsel at the Institute for Justice. And this is Dana Berliner, who is the senior vice president at the Institute for Justice. They argued the historic Kelo versus New London case.

14:40 Dana Berliner: Eminent domain is the power of government to take someone’s property away from them. And there are two requirements for government to exercise eminent domain, it has to be for a public use and it has to be justly compensated.

14:58 Scott Bullock: Well the Kelo case started in the late 1990s in a working‐​class neighborhood in New London, Connecticut called the Fort Trumbull neighborhood. It had been there since the 1800s. It was at one time largely an Italian neighborhood that had… And diversified over the years. It was a neighborhood where people would live oftentimes for generations. It was a very close‐​knit community. It was an area that was really working class. It was next to a sewage treatment plant. It decreased the desirability of it in some ways, but people still loved being there. It also happened to be near the water as well. As Susette Kelo said when she first looked at this little cottage that she then painted pink and made her own, she said, “I can afford this house with this view on a nurse’s salary.”

15:54 Tess Terrible: The neighborhood of Fort Trumbull consisted of about 20 single‐ and multi‐​family homes built in the early 20th century. The town planned to seize these homes using eminent domain and demolish them as a plan for private economic development in New London to support a new headquarters for the pharmaceutical company, Pfizer, a private corporation. The town argued that the possibility of economic development, more jobs and more taxes was enough to call it public use.

16:26 Scott Bullock: Part of the arrangement that was made for Pfizer to come there was that the Fort Trumbull neighborhood would be acquired to do private development projects to support the new Pfizer facility. So that led to the confrontation where the city and a private party, the New London Development Corporation decided that they were going to take the Fort Trumbull neighborhood to give to private parties. Some people decided that they wanted to sell, some people sold reluctantly under the threat of eminent domain, and a group of seven property owners decided to fight back and challenge this abuse of eminent domain.

17:08 Scott Bullock: The lead client that I mentioned, Susette Kelo, was a nurse. She left a bad marriage after raising five sons and it was really starting a new chapter in her life. She had just turned 40, she went to school to become an EMT and then eventually a nurse. She struck out on her own and she found this little house, this little cottage from the 1890s, I believe it was, that was right by the water. It was not in very good shape but she bought it, poured her heart and soul into it. Painted it pink or desert rose, as she calls it, her favorite color, and it was the first piece of property that she had ever owned in her entire life. And so that’s why it was so important to her. And only about a year after she had lived there, she got the knock on the door saying that the New London Development Corporation was interested in buying her property.

18:03 Scott Bullock: The rest of the property owners were, some had families, some had been in the neighborhood for decades, another fellow owned apartment buildings and a delicatessen. He lived on the properties for years. So these were working‐​class folks. Most of them had blue collar type of jobs or service sector jobs like Susette, and these homes meant everything to them. They wanted to be there. The Cristofaro family had some old roots in the neighborhood from when it was largely an Italian neighborhood. And they not only wanted to keep their homes, but it was a true close‐​knit community, where people knew one another, cared about one another, and wanted to stay there.


18:51 Tess Terrible: They wanted to remain in New London. The plaintiffs didn’t want to sell, but most importantly, the plaintiffs believed that what the town was doing was wrong. This is Mike Cristofaro, whose parents owned a home in the Fort Trumbull area. We met in his home just outside of New London, Connecticut. A fair warning, this is right before the holidays and the Cristofaros had just adopted a new puppy. You might hear him in the background.

19:19 Mike Cristofaro: Everybody in the neighborhood, when the news came that the area was gonna change, that there was gonna be some development, and we were like, “Yes, it’s long time coming. We wanna be part of this.” Because the property wasn’t needed. And what was happening was Pfizer was coming in. It was a whole different section of the Fort that wasn’t… It was an old factory that was being torn down, that was cleared of all contamination and stuff. So it was like, “Great, we’re here. We’re gonna be part of the development.” But then, we come to find out it was, “No, we don’t want you in the neighborhood. We want your house. We want your property.” And then it was like, “No, you can’t do this. This is wrong.” You can’t just take someone’s home and give to somebody else, just so they could say, “We’re gonna build a hotel on it.” That’s wrong.

20:21 Mike Cristofaro: My parents, they came over from Italy in 1962. They wanted to pursue that American dream. They wanted to make something better for their family. And they came and they actually… New London was their first stop. And my father worked 80, 90 hours a week. He was renting an apartment. He had, well, there was four of us. I was just born. They came over in October and I was born in December. So they had a newborn plus three other kids. After about six to eight months of living here, they just found that having an apartment with someone telling ‘em what to do and when to do it, flushing the toilet, that type of thing back then; he’d decided to buy his first home. It was home to our family. My brothers had their family there, they raised their kids. Everyone kinda knew each other. It was a really nice neighborhood. They wanted to paint it as a bad neighborhood, but there was no crime. There was nothing. My niece, she was five… No, I think four. This is how safe the area was. She would… She left the house and my brother and sister‐​in‐​law didn’t know that she left, went to the house next door, climbed up the stairs, and walked into the house and the family that was there, there were two wonderful sisters, called next door and says, “Oh, don’t worry about your child. Amy’s over here and she’s having a bowl of soup.”


22:09 Tess Terrible: As Michael describes here, his family has a tremendous connection to their family home and to New London, Connecticut. He was born in New London shortly after his parents emigrated from Italy. Michael comes from a humble family of humble means, and their neighborhood in New London, Connecticut is the only home they ever knew. Their home meant everything to them, as home does to so many people. It is the reason so many people connected to this case. The case went all the way to the Supreme Court. It seemed to be a clear cut case. The plaintiffs did not wanna give up their homes for any price and their homes would not be taken for public use. They’d be given to powerful corporations. That’s why it was so shocking to hear.

23:01 Dana Berliner: We lost by one vote.


23:03 Tess Terrible: We will continue these stories next time on The Pursuit, and we will hear from the one and only Susette Kelo. The Pursuit is produced and hosted by me, Tess Terrible. It is a project of the Cato Institute and Lib​er​tar​i​an​ism​.org.