Citizen Susette

Wednesday, February 11, 2009

Susette Kelo lost her little pink New London, Conn., home in a celebrated legal battle over eminent domain. "Susette took this from an abstract level of court proceedings about what are property rights down to a very human level. ... But in a sense Susette won." Also, the former mayor of Bogota, Colombia, backs buses, and Massachusetts' new transportation secretary, Jim Aloisi, says hello ...

Note: It's been a few days since we've posted, but minor technical difficulties are behind us, so here we go.

Jeff Benedict, author of the new book "Little Pink House: A True Story of Defiance and Courage," came along with the subject of the book and the former owner of that little house, Susette Kelo, to the Union Club the other night to share her story, which he has told in what may be the author's eighth best-selling book.

The Kelo case has rapidly become synonymous with overreaching government power, and this one hasn't broken along partisan lines nationally. Kelo, who still weeps openly when she stands up to say a few words about where she's been, lost the house, and the war, when the US Supreme Court voted, 5-4, that her land could be taken for "public good" or "public benefit." Not just for plain old "public use," like a road, which had been the standard for eminent domain takings. But "public good," which in this case meant what the state considered a higher and better use (generating more taxes).

But she has won many battles since that 2005 decision; 43 states have adopted legislation that prevents similar takings. Massachusetts isn't one of them, but Jim Stergios, executive director of the Pioneer Institute for Public Policy Research, which invited the pair to speak, said, "We're not that bad. Massachusetts generally has a pretty respectful view of property rights."

Pioneer issued a white paper in 2000, "The Power to Take: The Use of Eminent Domain in Massachusetts," authored by Michael Malamut of the New England Legal Foundation. "From the earliest colonial times, Massachusetts was at the forefront of placing restrictions on the use of eminent domain and championing property rights," the paper says.

Of course, those restrictions shrank over time. Malamut and colleagues analyzed 501 takings from 1987 to 1999, mostly for road repair and construction. But a 1969 Supreme Judicial Court opinion ruled that courts should be especially careful in cases that do not involve the standard list of public purposes, including "supplying housing, slum clearance, mass transportation, highways and vehicular tunnels, educational facilities, and other necessities." Casinos apparently need not apply.

"Under the Supreme Court's imprimatur, the public use requirement has been gradually eroded to accommodate the growing involvement of government in all sectors of the economy," the Pioneer paper concluded. And that was five years before Kelo.

You can go hear a lot of authors talk about their books, or listen endlessly on CSpan. But Jeff Benedict was one of the best we've ever heard.

A graduate of the New England School of Law, Benedict said he found in his first year of law school he loving doing the research on cases. "Every one of these could be a book," he said. "This story's like that."

He knew the ending of the story, and he knew the Fort Trumbell neighborhood where the little pink house was located, with a view of the water. "When I saw this view, it was over," Kelo told him, about the day she had gone house hunting in a run-down but affordable neighborhood. "I knew I had to have the house."

The state and the city wanted to promote economic development, and Benedict describes the interwoven involvement of a revitalized New London Development Corporation, Connecticut College, Pfizer (creator of Viagra), and a grand plan to turn 24 acres of contaminated land on the waterfront into a new global research facility.

The 1998 announcement of the plan, just after Kelo had moved in, included not only that but an enlarged plan for 90 acres around the research facility, taking in her neighborhood to build also a luxury hotel and spa, as well as housing for scientists and academics.

She didn't want to go. "I didn't come here to be an activist," she told Benedict.

The mayor of New London, Lloyd Beachy, didn't like the deal either. And, eventually, when a bulldozer driven by a man named Chico Barberi -- "You can't make these names up," the author said -- came to take the house, authorities arrested the mayor and his wife and put him in handcuffs.

The case because known and celebrated because a friend of Kelo's wrote a letter to the Institute of Justice in Washington, D.C., which sent a lawyer up, liked the case, and filed the suit, Kelo v. City of New London.

A judge ruled in Kelo's favor and was reversed by the state's supreme court, and Scotus agreed. Previously, eminent domain was taking private property for public use, and was legal as long as the party was compensated fairly. "Five-star hotels are not public uses," said Benedict. "Nor are spas and health clubs. Nor is upscale housing."

But the argument to the high court that there would be higher taxes and thousands of jobs created -- "public benefits" -- prevailed. It altered a standard set in the last eminent domain case considered by the court, in 1954.

"The decision causes an earthquake," Benedict said, relating the story compellingly in present tense. The book jacket calls it "the Court's most controversial decision since Roe v. Wade."

"People's lives were ruined over this," he said. There's an O Henry ending here. Is it perfect? No. But it's better than it was. If somebody doesn't stand up and get beat down, there's a lot of other people that lose."

And the land today? It sits there empty. The developer lacked the money and had to back out of the deal.

The little pink house Susette Kelo fixed up? It was taken down, trucked across town, and reconstructed by a friend of Kelo, "a historic site, a symbol of what happened in New London. It's a case for the history books and the law books."

"You've heard about Erin Brockovich," said Benedict. "This story is more compelling."

Kelo rose to make a few final remarks. "My name is Susette Kelo, and the government stole my house," she said. "Don't think your property is safe, because it isn't."

She lives now a few miles away, but her views of the Thames River, Long Island Sound, and the Atlantic Ocean are gone.

"For 10 long years we fought to keep our homes. We won the support of the public. But the politicians made our lives hell."

"We lost. But the war is still being fought. There are still many neighborhoods that are destroyed for malls."

Benedict said that is because many victims, like Kelo, couldn't afford lawyers, and there's no one to take up their case.

Benedict said New York has one of the worst, most permissive eminent domain laws in the country. Connecticut of course hasn't changed its law.

And Massachusetts hasn't either. But, as Jimmy Campano, publisher of a newsletter about a part of Boston that was obliterated by urban renewal, said, "The West End example changed things."

 
 

More People, Fewer Cars

"Maybe we all agree Boston could be better," said Enrique Penalosa, former mayor of Bogota, Colombia. "Boston is one of the great cities of the world."

All of us would make slightly different changes. Penalosa, and most of the people who gathered to hear him at a recent meeting of the transportation group MoveMass, would like to rid the city of cars.

"The Politics of Happiness" was the title of the talk, but if you like driving your SUV, or even your Prius, into the city and parking it and driving it home, you're talking about a different kind of happiness than Penalosa.

After making some dramatic changes in Bogota, the kind that would take 50 years or more of public process here, Penalosa is out. But he thinks his vision will prevail, and the era of cities dominated by vehicles will pass.

The world is mostly made up of private property, he said, and a small amount is public space. "The essence of a great city is great public pedestrian space."

Communism may have failed, he said, but, "Equality is not there."

Western civilization prevailed because of its emphasis on equality, Penalosa said. But what constitutes equality in today market economy?

Two things:

-- Public good prevails over private interest.

-- Equality of quality of life (as opposed to income equality).

Among his principles to achieve those goals, "if you really have democracy at work":

-- Waterfronts should never be private.

-- Road space should go first to public transport, and if any space is left over to private cars.

Stating a philosophy that definitely fits better with the Obama era than with that of George Bush, Penalosa said, "Sometimes public consumption yields more happiness than private consumption." Fewer jackets, more libraries, he counseled.

"I'm not a communist," he said, but, "Adam Smith does not work for cities."

"Government has to intervene," with "a very subjective intervention," like dictating the width of sidewalks.

He called those ideological decisions. Things you believe but can't prove.

Suburbs emerged in the United States because it's the "most successful" country in the world. "In Colombia, we didn't have money for cars and roads."

A good city is "where people want to be out of their homes," in public space. And shopping malls don't qualify under Penalosa's definition of happiness, though he suggested they're better than no public space at all.

Penalosa said that beyond food and sleep and security -- the basics -- people need: to walk, be with people, have contact with nature, to play, and "not to feel inferior."

"Parks are as essential as schools are roads. Why are there all kinds of conservancies to maintain parks but not roads?"

His vision of an advanced society, as opposed to a backward society, is one where high- and low-income people meet in all kinds of circumstances. Where the physical space is good for children, the elderly, and handicapped. (More than 200,000 children a year are killed by cars worldwide, he said.)

"I would guess in 200 years people will say how could people live in such conditions in 2010," he said. "The 20th century will be one remembered as a disastrous one in urban history."

A car owner, not a car hater, Penalosa said, though: "The faster cars go the wider roads are, and the less it is pleasant for people. Cars are just as damaging if they are electric, nonpolluting, nuclear, whatever."

A good measure for any new building, he said, is: "Does it make it better to walk?"

OK, in Bogota, Penalosa helped establish 24 kilometers of paths for pedestrians and bikes only. "Space for pedestrians and bikes, and cars in the mud." The city has 300 kilometers of protected bike lanes, so about 350,000 people use them.

In Muenster, Germany, known as the bicycle capital of the country, almost half the populations uses bikes, he said.

"If you have 100 miles of paths, maybe it makes you happier than an increase in income of 2-3 times."

"Public pedestrian spaces are a magical good. It's an end in itself. It's almost happiness."

(We've never been to Bogota, but we did check weather there compared to snowplow Boston. Bogota is considered tropical, mostly mid-40s to mid-60s. Good pedestrian and bike weather.)

Asia and other fast-growing parts of the world will find it easier to get the car-people mix right than those, like Boston, that have already committed to cars. "I was almost impeached for getting tens of thousands of cars off the street," he said.

"We were able to do any things without much discussion. It wasn't very democratic," he said. After legal challenges to his planned car bans, he announced one such decree only at 5 p.m. the day before the ban, to avoid court action. Shall we try that in Boston?

While they complained at first, shopkeepers actually now support sidewalks free of the cars that used to litter them, he said. By popular vote, the first Thursday of every February is a car-free day in the city.

The fallacy in a lot of cities, he says, is that sidewalks are considered relatives of streets when they are not. They are instead really relatives of parks and plazas, for walking but also for "talking, doing business, kissing."

"We should have wider sidewalks, and this is an ideological decision. This is not for traffic engineers."

"Transport is a peculiar problem. It cannot be solved with money," he said. "Most of the important transport decisions are not technical, they are political."

Penalosa, who spent four days exchanging ideas in Boston, said, "Boston did a great job with the Big Dig," getting cars off the streets. He suggested tackling Storrow Drive next, getting the highway away from the river, but, "Now you're too traumatized by the Big Dig" costs.

Then Penalosa went where a lot of public transport advocates in Boston tend not to want to go: He favors buses, specifically bus rapid-transit, over rail in many cases.

It's cheaper, more flexible routewise, faster to build.

"Why not put buses on Route 128 in an exclusive lane? In Madrid, buses move three times more people than trains." London has 1,400 miles of rail but still moves more people by buses, he said. In Japan, 30 percent of the people who use public transit arrive at stations by bike.

"Buses have been underestimated," Penalosa said.

He favors subsidizing public transit with taxes on car users -- and Massachusetts may get just such an arrangement with a tentatively proposed new gas tax increase.

"Whenever people use public transport, it is rarely out of love for the environment," he said. "If people can use cars, they will use cars." So tax them. or use congestion charges, tolls, parking restrictions. The gas tax is "the simplest, dumbest means."

Penalosa doesn't buy the conspiracy theory of history that says the big car companies forced rail transit out of business. "Buses were much more flexible," he said. "They were sexy too." And they need to get sexy again.

TransMilenio, the bus rapid-transit system in Bogota, moves thousands of passengers and has wide doors that open and let 50 people in and 50 out in seconds -- no queuing up, like on the Green Line.

Penalosa wants to see American cities convert to BRT, because America's reputation as a leader in the world would spread the technology. The same way Paris embraced bikes and popularized them.

Subways are in a way the enemy of good urban space, he said, because they don't take space away from cars. Surface transit does. Mexico has subways, but the upper classes rarely ride them, he said. And they cost billions of dollars.

Most buses only stop at every fifth or sixth station, whereas subways have to stop at every station unless you have two tracks -- very costly.

"The US could be the model to the world. Boston could do great BRT." He mentioned the Silver Line only in passing. (Chris Hart, director of urban and transit projects for the Institute for Human Centered Design, later informed us that Penalosa was critical of Boston's BRT in other forums during his visit, saying it had not been executed effectively.) 

"A good city is not one with great highways, but one where a child on a bicycle can go safely everywhere."

 

New Massachusetts Transportation secretary Jim Aloisi, with state highway commissioner Luisa Paiewonsky, at WTS event late last month.

He's Back

Women's Transportation Seminar planned a reception to welcome transportation veteran Jim Aloisi back in to the public sector, and the group didn't let a late-January snowstorm get in its way, despite school closures and narrow streets.

Scores showed up at the Courtyard Marriott to share a drink and wish the former Massachusetts Turnpike Authority general counsel, who served in a number of capacities through several administrations, back -- and well dealing with a whole parking lot of problems. He's now secretary of Transportation, of course.

"We're all in this together," said Aloisi. "I consider it a family. We're in the same boat. It's a tough boat to be in right now. The Turnpike is crushed under a heavy load of debt."

"I was a public servant. I came back to do it again," he said. "I feel like the time is right to do something different. Aloisi left the law firm Goulston & Storrs to join the Patrick administration. He was considered too hot to handle when his name first came up as Gov. Patrick assumed office, because of his Big Dig involvement. But time has passed, and the problems have grown.

"My idea of reform is never to beat up on public service," Aloisi said. "There may be downsizing. There may be right-sizing. We need to think outside the box but always respect public service."

He said the governor has asked him to recommend a transportation reform bill to be filed this month. He said it will be bold, innovative, forward-looking, and fair.

It will also be about restructuring, reorganizing, "bringing down the old notion of silos -- not just rearranging the deck chairs."

"We're going to hit an iceberg if we don't get net new revenue," he said. "If it doesn't happen in 2009, it's not going to happen in an election year."

Aloisi said he's a friend to labor but labor "must be mindful people need to see real significant, meaningful change."

"It will be bold. I'll need your help. It's a difficult task but one that's essential."

"We're going to be as green as we can be," Aloisi said. "We know that's the future."

Aloisi praised Department of Conservation and Recreation Commissioner Rick Sullivan, former mayor of Westfield, and Registrar of Motor Vehicles Rachel Kaprielian, who he said is taking that agency to "a different place."

The registry should be a "hybrid," Aloisi said. "We're past the era of the clunky transponder and into the era of the chip."

He also said that with fuel prices relatively low again, "We are entering an era when the gas tax may not be the main source of income. We need to be building a platform for the future."
 

 

 Just a nice picture of the moon over the first office building being constructed at Fan Pier, with the Evelyn Moakley Bridge in the foreground. Taken from Independence Wharf.