• NEWS 2008...
  
• OMBUDSMAN for CT takings named...
  
• Election results on ballot measures, '06;  no action in CT...some bills out there in 2007.  Watch and read about END GAME of Fort Trumbull here.
  
• News of the flip side of eminent domain - on Long Island (Motel 6 - Ritz-Carlton perversely REVERSED here);
  
• What's Congress doing?
• What is the CT Legislature up to?  Why haven't they acted to correct flaws in CT eminent domain statute?  Indeed.
  
• In Norwich;  and New London; lower Fairfield County
  
• New Hampshire protests...
  
• Senator Freedman interested...and sad report of Bridgeport history:
• As the Governor of California has said..."I'll be back."  Will this bill  (HB5062) "be back" in 2006?  Yes, but it got nowhere.
  
• The view from across the pond...

Voters Nationwide Have Say On Fate Of Eminent Domain; Nine States Approve restrictions On Taking homes For Development
DAY
By Elaine Stoll 
Published on 11/10/2006
 
New London — When nine states passed ballot measures Tuesday restricting eminent domain for private economic development, they were answering an invitation issued last year by the U.S. Supreme Court.  The high court ruled that the Fifth Amendment permitted New London's use of eminent domain to take private homes in the Fort Trumbull neighborhood to make way for tax-generating development, but the court also told states they could ban the practice.

“We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power,” Justice John Paul Stevens wrote for the court's 5-4 majority in Kelo v. City of New London.

“The public has acted on the Supreme Court's recommendation,” said Dwight H. Merriam, partner at Robinson & Cole LLP in Hartford and co-editor of the new book “Eminent Domain Use and Abuse: Kelo in Context.”

On Election Day, voters in Arizona, Florida, Georgia, Michigan, Nevada, New Hampshire, North Dakota, Oregon and South Carolina approved new laws or constitutional amendments to restrict the use of eminent domain. Voters in Louisiana already had passed a constitutional amendment Sept. 30 prohibiting the use of eminent domain for economic development.

Proposed restrictions in just two states, California and Idaho, failed to pass Tuesday.

Those that succeeded differ in detail, but all restrict the use of eminent domain for private economic development. A number of them, such as New Hampshire's constitutional amendment, ban outright the use of eminent domain to transfer a private property to another party for the purpose of private development.

Other measures make it more difficult to use eminent domain for economic development, which isn't allowed under Florida's constitutional amendment unless both houses of the state legislature vote to allow an exception by a three-fifths majority.

In addition to “narrowing the purposes for which property can be taken,” measures in some states increase compensation for those whose property is taken by eminent domain and change procedures for exercising eminent domain to improve accountability, Merriam said.

•••••

Citizens in three states — Arizona, California and Washington — put initiatives on the ballot Tuesday that sought, essentially, to expand the definition of a taking by requiring state or local governments to compensate property owners when regulations such as zoning laws or environmental protections decrease the value of their property. The measure succeeded only in Arizona on Tuesday, but Oregon has already instituted a similar measure.

Proponents say the compensation requirement will make governments think twice about passing regulation after regulation, while opponents warn that passing reasonable land-use laws and environmental restrictions could be very difficult.

The goal of most of the ballot measures on Tuesday was to protect private homes, said David S. King, associate dean of Quinnipiac University School of Law.

Under the new restrictions on eminent domain for economic development, homes and other private property will still be subject to eminent domain for public projects, such as a school, park or municipal building, King said. But in states that now ban eminent domain for economic development, proposed development will have to pass a viability test.

Cities in those states won't be able to use eminent domain to assemble parcels for development projects, but private developers or investors will still be able to buy property and assemble parcels themselves if they choose, King said.

“If private developers won't do it on their own, is it an economically viable project?” he said.

In the wake of the Kelo ruling, states are grappling with the question, “Is it more important to protect the security of the few or protect the economic advantage of the majority?” University of Connecticut law professor Jeremy Paul said. States that passed restrictions on eminent domain use have simply chosen the former, he said.

However, states may find that their newly drawn lines “between economic development and other permissible uses of eminent domain are not as easy to draw as they are attempting,” Paul said.

“Let's say that I want a park, and I want there to be a restaurant in the park, and I want the restaurant to be private. Am I taking the land for private economic development, which is not permitted, or for public use, which is permitted?”

He gave other examples: What if a transportation center is designed to include a Starbucks or other shops inside — does that qualify as a public transportation project or private economic development? If a city sewer line must be extended to a new house on the end of a street, but part of an existing property owner's land must be taken in order to lay the new sewer line, does that qualify as a public use or a project to benefit a private development?

“There are going to be problems of implementation,” Merriam said, and he predicted that some of the new measures will later be repealed.

“I think everyone is going to find that much of our best development is public-private partnership. Is that private development?” Merriam said.

He cited the Blue Back Square project, a 550,000-square-foot development in West Hartford undertaken by a developer in conjunction with the town. The project includes retail, residential and office space as well as improvements to the public library, town hall, infrastructure and public parking. Such developments — some of which may require eminent domain — provide “benefits that could not ever be realized by a private developer alone or by government alone,” he said.

•••••

For Scott Bullock, the Institute for Justice senior attorney who represented former Fort Trumbull property owners at the Supreme Court, the success of eminent domain restrictions Tuesday “shows the continued march for greater protection for homeowners and small business owners,” he said.

Legislatures, state courts and now voters are challenging the use of eminent domain for economic development in response to the Kelo decision, he said.

“It is something to behold. What was once seen as a great victory for city officials and developers and planners has turned into a nationwide rebellion against the abuse of eminent domain for private development,” Bullock said.

Michael Joplin, president of the New London Development Corp., said that it can be a “dire mistake” for states to limit eminent domain powers.

For cities along the East Coast that are built out and have tiny, one-eighth-acre lots, eminent domain may be the only way to improve the tax base or assemble parcels of land for economic development, he said — and economic development is necessary for a city to pay for health and social services, education and public safety.

“There are places in this country where this would be a fatal error,” he said of restrictions passed Tuesday. “It's a do or die endeavor to restructure your economy.”
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Eminent Domain on the Ballots...

Arizona: Passed citizen initiative prohibiting exercise of eminent domain for private economic development. Also requires compensation to owners when new land-use laws decrease their property values.

California: Rejected citizen initiative that would have restricted eminent domain and amended the state constitution to require compensation for regulatory takings.

Florida: Passed constitutional amendment approved by legislature banning the use of eminent domain to take private property for private development unless an exemption is approved by three-fifths of both houses of the state legislature.

Georgia: Passed constitutional amendment approved by legislature prohibiting eminent domain for redevelopment except for public use and requiring the approval of the elected city or county governing authority for eminent domain takings.

Idaho: Rejected citizen initiative that would have prohibited economic development for private economic development and required local governments to compensate property owners for regulatory takings.

Michigan: Passed constitutional amendment approved by legislature that makes some takings of private property unconstitutional and would require governments to pay property owners more than fair market value.

Nevada: Passed constitutional amendment initiated by citizens that would prohibit eminent domain for economic development and increase compensation for takings. Must be approved again on ballot in 2008 in order to change constitution.

New Hampshire: Passed constitutional amendment approved by legislature to ban eminent domain taking of private property for purpose of private development or private use.

North Dakota: Passed citizen-initiated constitutional amendment prohibiting eminent domain for economic development.

Oregon: Passed citizen initiative banning state and local governments from taking private property for economic development.

South Carolina: Passed constitutional amendment to prohibit eminent domain takings by state for economic development. Must be approved in General Assembly next year to take effect.

Also:

Louisiana: Voters passed constitutional amendment on Sept. 30 prohibiting use of eminent domain for economic development.

Washington: Rejected initiative Tuesday that would have required compensation to property owners for regulations that decrease property values.
 

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Agency to make case for West Ave. blight
By ROBERT KOCH
Hour Staff Writer
April 15, 2006

NORWALK — As the West Avenue Corridor Redevelopment Plan moves toward the Common Council for action, some remain split on the most fundamental question: Is West Avenue blighted and in need of a sweeping facelift?

On May 1, Redevelopment Agency Executive Director Timothy T. Sheehan, whose staff drafted the plan with public input, will make the agency's case for blight to the council's Planning Committee.

Sheehan said previous councils, through their actions, have accepted the agency's conclusion that West Avenue is substandard and in need of improvement.

"For over 20 years, the city has clearly recognized that the West Avenue plan development area has deterioration," said Sheehan, referring to millions of dollars of infrastructure improvements approved for the area. "What are (plan critics) looking to hear that is different from what previous councils heard and accepted?"
The redevelopment plan, if endorsed by the Planning Committee and approved by the council, will serve as a framework for a private developer to step forward and reshape the West Avenue area with retail, housing and offices.

The plan leaves room for 350 new housing units; 393,174 square feet of new retail; and perhaps a parking garage in the core portion. Limited development would be permitted on the west side of West Avenue. The Harbor Avenue area would become a neighborhood preservation zone.

Developer Stanley M. Seligson, who has been involved in planning West Avenue's future since the mid-1980s, hopes to become the city's designated developer, if the council approves the redevelopment plan.  Over the last decade, Seligson has put forward several conceptual plans showing a revitalized West Avenue. So far, he has acquired 70 percent of the properties around his offices at 605 West Ave. needed to fill out the redevelopment plan.

Asked if West Avenue is blighted, Douglas T. Adams, Seligson's development director, said many West Avenue area properties are vacant and some show vandalism. Rents run as much as 30 percent lower than elsewhere in Norwalk, he said.

"I believe that the area is blighted," Adams said. "That doesn't mean every property is blighted. But taking the larger view, the agency is making the proper case that the area is blighted."

The council, by adopting the redevelopment plan or not, ultimately will decide whether West Avenue — Norwalk's urban spine and downtown — is blighted.  For plan skeptics, blight is crime, trash-strewn streets and abandoned buildings.

"I don't believe the Redevelopment Agency has made a case that there's blight in the area," said council President Michael W. Coffey. "This council will be asked if there is blight. Period. If the Redevelopment Agency's case is so strong, why are they not providing us the data and materials until the night of the Planning Committee meeting, when they will be unveiling it and asking for a vote?"

Coffey points to the success of Devan Acura of Norwalk, a car dealership at 625 West Ave.

The successive councils, while not yet giving Seligson the green light to revamp West Avenue, have committed money and effort toward setting the stage.

The Norwalk Business District Management Plan of 1986 churned $7 million of infrastructure improvements into West Avenue and Wall Street between 1986 and 1993. Utilities were relocated underground; intersections and traffic signals were improved; sewers were separated, according to the Redevelopment Agency.

In 1998, the council authorized Mayor Frank J. Esposito to apply for a $1.5-million planning grant through the state Department of Economic and Community Development. And in 2002, the council approved a $5 million capital budget allocation for West Avenue. For Sheehan, it's a track record showing that successive councils concurred with the agency that West Avenue is blighted.

"You don't invest those kinds of efforts into an area that's fine," Sheehan said.

The $5 million allocation did not pass without debate. Councilman William Wrenn moved to remove the money. The motion failed 6-9.

Matthew T. Miklave, who voted to leave the $5 million intact, predicted it would be long time for another viable plan to come forward. Four years later, a new and smaller plan is headed to the Planning Committee, which he chairs.

"There has been a tremendous amount of public input, and the plan has been substantially modified in the light public input," Miklave said earlier this month. "It is a substantially better plan than it was. I support it."

Bruce I. Kimmel, who since left the council for the Board of Education, was among the six council members voting to remove the $5 million in 2002. This month he asked the Planning Committee to use common sense in defining blight.

"If this is how we define blight, there are many neighborhoods in Norwalk that could be considered blighted — which they are not," Kimmel said. "Blight has to do with burned-out and empty buildings, miles of trash and garbage everywhere, extensive crime and anywhere you wouldn't want to park your car at day or night."

He added, "This is what I call blight Fairfield-County style."

As Kimmel and others look for tangible evidence of blight, Sheehan points to what the agency considers social, physical and economic signs: Overcrowded housing, rental rather than owner-occupied housing and a lack of investment.  Above all, redevelopment officials point to what's missing. For Sheehan, West Avenue is not what Norwalk's downtown should look like.

"Do you see people in any significant numbers walking West Avenue after 8 p.m. as they do on Washington Street?" Sheehan asks. "Do you see restaurants that are open during the day open after dark? Do you see people shopping ... on Saturday?"

The Planning Committee, because of its busy agenda this month, postponed action on the redevelopment plan until May 1. Committee member Douglas E. Hempstead has suggested a walking tour of West Avenue before then.

"Is it blight? It's blight by Connecticut standards. I don't think it's blight by Bronx standards," Hempstead said.  Hempstead said the council, if it is to adopt the redevelopment plan, first must make a case for blight and then make a case for the use of eminent domain. He said he struggles with the issue of eminent domain. At the same time, Hempstead says redevelopment of West Avenue cannot occur without its use.

"The council is going to have to decide," Hempstead said. "Do we want the West Avenue ... to be developed? If so, we're going to have to use our powers of eminent domain to make it happen. If we say no, it's not going to happen."

Hempstead said the redevelopment plan could use some tweaking, but added that he is leaning toward supporting it.   Coffey, whose Ordinance Committee has been working on legislation to limit the city's use of eminent domain, said he has sent Sheehan questions about the West Avenue plan and asked the city's law department to define blight.

"At this time. I'm still unconvinced (of blight). But I have an open mind," Coffey said.

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Incumbent Mayor loses re-election by thin margin--was this the issue that made the difference?
Ordinance sent back to committee

By ROBERT KOCH,Hour Staff Writer
October 26, 2005

NORWALK — The Common Council returned to committee Tuesday night the Norwalk Homeowner and Property Protection Ordinance after a three-hour meeting that began with residents pleading for protection against eminent domain and ended with a minor melee involving Mayor Alex Knopp and two attorneys.

At about 11 p.m., the council voted 11-3 to send the one-page ordinance, which would prohibit the city from using its eminent domain powers for economic development purposes, back to the Ordinance Committee. Council President Fred A. Bondi moved to send the ordinance back to committee. Councilman Douglas E. Hempstead, a Republican, spoke for the majority on the controversial matter that crossed party lines and depending on viewpoint, pitted residents against developers or blight against revitalization.  For him and most other council members, the ordinance simply needs more work.

"I can feel for the other small-business owners, having been one for nine years of my life in the city of Norwalk," Hempstead said. "But I also understand that the city needs a certain ability under certain circumstances to have ... eminent domain. ... The problem is this present ordinance basically just cuts everything out and leaves no window for an opportunity." Hempstead said the ordinance needs to include language addressing compensation, retroactivity, and assurances that properties approved to be taken are used — he recommended an 18-month time frame — rather than lay undeveloped as have parts of the Reed-Putnam redevelopment area.

Voting to send the ordinance back to committee for further work were Bondi; Hempstead; Kenneth C. Baker; Matthew T. Miklave; Jeanette Olmstead-Sawyer; Douglas W. Sutton; Richard A. McQuaid; Phyllis Bolden; Kevin M. Poruban; Lee Levey; and Betsy H. Bain. William M. Krummel was not in the council chambers when the vote was called, but earlier spoke against sending it back.

Favoring an immediate up-or-down vote on the ordinance were Peter A. Wien, Carvin J. Hilliard and Michael W. Coffey, chairman of the Ordinance Committee. A small melee erupted when Coffey questioned the timing of a seven-page legal opinion issued Monday by Corporation Counsel Louis S. Ciccarello. The opinion found the ordinance contrary to the City Charter and state statutes.

"I think their actions are non-feasance at best," Coffey said. "I vehemently disagree with Mr. Ciccarello, and I think there were motivations at work as to the timing of the decision. Corporation Counsel was present at every juncture. Corporation Counsel did my legal research." Ciccarello said Assistant Attorney Katherine Lasberg provided Coffey's Committee background information from the Connecticut Conference of Municipalities. He said Coffey wrote the one-page ordinance and never asked for a legal opinion of it. That request came last Thursday from Poruban, he said.

"Mr. Coffey, being a lawyer, decided to do it on his own," Ciccarello said. Knopp broke off the exchange, saying Coffey had violated the rules of order by questioning Ciccarello's motivations.

Said Knopp: "It is out of order to refer to motivations." During the public participation portion of the meeting, 14 people addressed the proposed ordinance. All but four supported its passage unamended.

"This ordinance is not only legal but necessary," said William Wrenn, former councilman and once chairman of the Ordinance Committee. "I ask you to consider this ordinance. It's not perfect, but it's a step in the right direction. What about the real people who live here and have made it through thick and thin?" Several business owners, including Michael Sciaudone, whose Leonard Street auto-repair garage lies in the footprint of the Wall Street redevelopment plan, and Jacqueline Trofa, co-owner of Professional Auto Center on Putnam Avenue, asked how they are to rebuild their businesses if their properties are taken.

Clayton Fowler, principle with Spinnaker Cos., which is redeveloping the Reed-Putnam area, described his firm as a small business and a developer.

"It isn't just about grabbing property," Fowler said. "We do, and most developers do, give back significantly to their communities. We do affordable housing. I do ask the council to go slow and consider everything."

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Eminent domain vote set:  Common Council committee is scheduled to take up the sensitive matter Tuesday

By ROBERT KOCH, Hour Staff Writer

October 22, 2005

NORWALK — Common Council members may find middle ground on the Norwalk Homeowner and Property Protection Ordinance, which, if passed as is Tuesday, would ban all eminent domain takings for economic development.

"Some people have reached out to me to see if there is any opportunity for compromise. It looks like there might be some discussion whether there is a retroactive portion, or whether (the ordinance) would just apply going forward," said Michael W. Coffey, chairman of the council's Ordinance Committee. "My preference would be a total ban, but if we don't have a majority of the council, I think it would be better to provide the most protection we can."

The ordinance, as written, would prohibit the city from using eminent domain to take residential or commercial private property for economic development. Economic development is defined as any activity to "increase the tax revenue, tax base, employment or general economic health."

Coffey says the ordinance is needed to provide residents and business owners with security in the wake of Kelo versus New London, where the U.S. Supreme Court ruled that New London may take homes in a working-class neighborhood to make way for a riverfront hotel, health club and offices.

In Norwalk, urban renewal plans involving real and potential eminent domain takings are moving forward for Wall Street and West Avenue.

To the south, Maritime Motors Chevrolet President Peter Morley is waiting for the state Supreme Court to decide whether the city can take his car dealership on West Avenue. The city considers the property critical to widening Reed Street to serve the Reed-Putnam development.

On Tuesday, the Ordinance Committee voted 4-0 to forward the ordinance to the full council. The item appeared on the council agenda printed Friday. By late afternoon, Coffey said he had spoken with a half-dozen council members. At the same time, Mayor Alex Knopp said he has asked the city's law department to examine the matter in advance of Tuesday's council meeting.

"Everybody on the Common Council, including myself, is probably against allowing a repeat of what happened in New London, and therefore, there is no question that the state should prohibit the taking of private homes for private economic benefit when there is no finding of blight or need for urban renewal," Knopp said. "But the resolution on the agenda does not have the kind of serious inclusive hearing that a major topic like this requires, and there is an open question of whether a municipal ordinance is either preferable, or even legal, in light of the state statutes that govern this situation."

During a public hearing before Ordinance Committee Tuesday, two dozen residents and small-business owners spoke largely in favor of the ordinance. Those in the path of the Wall Street, West Avenue and Reed-Putnam urban renewal projects say municipalities have abused eminent domain, shifting land from homeowners and small-business owners to wealthy developers.

Ordinance opponents, while acknowledging that abuses have occurred, say adopting the moratorium would halt needed revitalization. Edward J. Musante Jr., president of the Greater Norwalk Chamber of Commerce, traced The Maritime Aquarium at Norwalk, SoNo revitalization, and Baltimore's revamped inner harbor to municipalities' ability to use eminent domain.

Richard A. Moccia, Republican mayoral candidate, said he opposes the Kelo versus New London decision and the abuse of eminent domain to take private property. But he also said Norwalk should move more slowly than is now being done with the proposed ordinance.

"My concern is this ordinance is being rushed too fast and is going to hurt the economic development of Wall Street and (Stanley) Seligson's project on West Avenue," Moccia said. State Sen. Bob Duff, D-25, said the General Assembly on Tuesday will open a special session to address, among other topics, eminent domain.

He said he hopes legislators will arrive at a "thoughtful and reasonable" solution that makes homeowners feel safe against unwarranted takings.

"The principal idea is to have a thoughtful and reasonable approach, and not just act inappropriately to say something was done," Duff said. "We had this Supreme Court decision and there was a knee-jerk reaction to respond quickly, but the laws are more complicated than that."

Duff said state statutes generally — but not always — override local statutes. In instances where the Norwalk Homeowner and Property Protection Ordinance conflicts with state or federal law, "the remaining provisions of (the local) ordinance shall remain in effect," according to the final draft.

Coffey predicted earlier Friday that some council members would seek to table the ordinance on Tuesday night — a nondebatable motion. Later Friday, Coffey said he had spoken with council members in search of a compromise. Several council members, speaking Thursday night before a candidates' forum got under way at City Hall, shared their thoughts on the proposed ordinance.

Douglas E. Hempstead, one of two Republicans on the council, said he would seek to amend the proposed ordinance to require a 4/5ths super-majority vote by the council when invoking the city's eminent domain powers.

"You have to have the ability for the city to move forward on certain projects," Hempstead said. But "a super majority sends a message it has to be a great project. We've been 20 years with Reed-Putnam. That's way too long."

Critics of eminent domain point out that some properties taken years ago by the city for the Reed-Putnam project remain vacant. Morley has expressed doubt that the project ever will produce up to 1.1 million square feet of office space. Matthew T. Miklave, a Democrat, said council members have received telephone calls from developers who are concerned the ordinance would stop all development in Norwalk. Miklave said the matter needs further study.

"Eminent domain is a power that a municipality has that should be used in limited circumstances. But I'm concerned that the proposed ordinance goes too far," Miklave said.

"We need to study it and understand the ramifications better."

Democrat Lee Levey, however, said he planned to vote in favor of the ordinance. He said controls need to be in place so that private property is not taken by a developer with "the developer taking the profit."

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Leaders strive to shape eminent domain
By ROBERT KOCH, Hour Staff Writer
October 2, 2006

NORWALK — If Connecticut is to avoid future Kelo vs. New London battles, Hartford legislators must amend state laws governing eminent domain, according to property rights proponents and others.

"Thirty states passed eminent domain legislation in the wake of Kelo to more tightly control eminent domain," said Scott Bullock, The Institute for Justice's lead attorney in the Kelo vs. New London case, where the U.S. Supreme Court ruled that New London may take homes to make way for a private development. "Unfortunately Connecticut, home of Kelo, failed to do so."

Last year, at least four bills addressing eminent domain failed passage in Hartford. Provisions included prohibiting eminent domain solely to boost tax bases, and compensating property owners up to 150 percent of fair-market value. Last October, the Norwalk Common Council rejected an ordinance that would have prohibited the city from using its eminent domain powers for economic development purposes.

What Hartford lawmakers might put forward next year remains to be seen, and legislators, candidates and redevelopment agency officials have differing opinions on where the state should go on the volatile topic.  Fred Wilms, Republican candidate for the state Senate 25th District, last month hosted a roundtable to address eminent domain. After the Kelo decision, Wilms said, there is a strong desire to see eminent domain for development purposes "restricted as much as possible." He wants geographical boundaries set.

"Economic development eminent domain should be used only in 'distressed' Connecticut municipalities," Wilms said. "Economic eminent domain should be confined to only those commercial, industrial, design or related zones that have been formally designated as distressed or blighted. It would be banned everywhere else."

As such, the Reed-Putnam, West Avenue and Wall Street redevelopment projects in Norwalk could continue, while residential areas of the city would be protected from eminent domain, Wilms said.  On compensation, Wilms said he supports paying property owners fair-market value and relocation costs. Lost business, he said, is difficult to quantify and requires further study. Wilms said he would support requiring a two-thirds super majority by local legislative bodies for eminent-domain takings.

State Sen. Bob Duff, D-25, said the Kelo decision set a bad precedent. He said such cases would not occur, if judges adhered to the intent of the law of "true pubic benefit and just compensation." Duff wants state laws to better address compensation, relocation costs and whether a business can become viable at a new location.

"The Kelo case brought so much attention to flaws in the law," Duff said. "What we tried to do (last year) is ensure eminent domain can't be used for economic development, and you'd have to compensate people fairly."

Duff said Wilms' proposal to limit economic development eminent domain to 'distressed' areas could pose problems. "I believe that there should be one system for everybody — not for one part of town vs. another part of town — so it gives all homeowners comfort that their properties will not be taken," Duff said.

Bullock describes Connecticut statutes governing eminent domain are among the broadest in the nation. He points to states that have amended their laws in the wake of the Kelo decision.  Florida now "prohibits the condemnation of private property to prevent or eliminate slum or blight conditions, or to abate or eliminate public nuisances, and also bans the transfer of seized private property to private parties for a period of ten years following the condemnation," according to The Institute for Justice.

Closer to home, New Hampshire adopted changes to its laws, adding language that "no person's private real property shall be taken pursuant to this chapter unless that real property is to be put to public use."

Timothy T. Sheehan, Norwalk Redevelopment Agency executive director, rejects looking outside the Northeast, or to New Hampshire, as examples, as those areas often are not urban. Cities in the Northeast, whose industrial and manufacturing bases have left, must be able to recreate themselves to survive economically, he said.

"If you take away the power of eminent domain, you've basically crippled those areas," Sheehan said. "In order to accomplish those things in the urban corridor, you have to allow that corridor to change itself from its industrial past to its mixed-use development future."

"Eminent domain is an important tool to get that done," he said.

Sheehan said The Empire State Development Corporation in New York and Boston Redevelopment Authority in Massachusetts are moving ahead a variety of projects. The latter has 240 development applications under review or advancing. They involve reshaping areas such as the South End, Charlestown and downtown into mixed-use developments with new retail, residential and office space.

Sheehan said eminent domain should be used for a "greater public purpose" and not purely to increase the tax base. That public purpose, in the case of West Avenue redevelopment, is that the area is substandard, he said.

He said Connecticut must retain eminent domain to revitalize its distressed urban areas. At the same time, the state can and should amend its laws governing eminent domain. He recommends focusing on replacement value.

"If I own a business in one area of town that's being redeveloped, we'd have to look at comparable properties in the community, when we're looking at valuation that would ultimately allow that business ... to move," he said.

Sheehan cautioned against legislation that would require property owners to be paid "an arbitrary number of 125 percent or 150 percent over market" value. He predicted such a mandate would reduce the incentive for property owners to negotiate with developers, and lead to more eminent domain takings.

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Public vs. private interests
StamfordADVOCATE   
By Tobin A. Coleman, Staff Writer
Published March 18 2006

HARTFORD -- The legislature's Judiciary Committee yesterday wrestled with the rights of property owners over municipal and state interests during a four-hour public hearing.

An expected heavy turnout on two key bills dealing with eminent domain never materialized, as property owners affected by the Kelo vs. City of New London Development Corp. U.S. Supreme Court decision stayed away after attending several hearings since last year.

Stamford officials testified on a bill sponsored by state Sen. Andrew McDonald, D-Stamford, that would allow municipalities to place liens on buildings where owners don't pay fines for health, safety, building and zoning code violations. The law is meant to put teeth in the city's Safe Houses program that targets properties that potentially endanger residents or their neighborhoods.

McDonald questioned at length House Minority Leader Robert Ward, R-North Branford, who proposed an eminent domain bill that would prevent any taking of private property for private development.

The bill would create the position of a "property rights ombudsman" who would steer property owners through disputes with government entities initiating eminent domain proceedings against their properties.

The residents of New London's Fort Trumbull neighborhood fought against seizure of their properties all the way to the high court, where they lost in June. The court ruled New London officials could take their homes for a private development solely because it would raise more tax revenue for the city.

McDonald asked Ward if his bill would have stood in the way of development of the Stamford Town Center had it been in place at the time, since the mall is privately owned but the adjoining 1,200-car garage is owned by the city.

"If eminent domain was used to take any portion of that property, would that be verboten under your scenario?" McDonald asked.

"If it was a true blighted area that was taken by eminent domain, that would be acceptable," Ward said. "If the purpose was solely economic development, then I believe (the bill) would have taken away eminent domain for that purpose. . . . This is a way to constrain government in a way that we ought to."

State Sen. Judith Freedman, R-Westport, had her testimony read into the record by her legislative intern, William Burgess.

"My constituents in Fairfield County are just as concerned as those in New London," Burgess read.

Freedman agrees with Ward that property can be taken for real public purposes, such as needed schools, roads or hospitals.

"Taking someone's home so that private developers can build something that government officials hope will result in higher tax revenues is a misuse of powers that all of us should abhor," Burgess testified.

Another bill considered by the Judiciary Committee would require that there be a determination before any property is taken for private development that it will result in a greater public benefit than any benefit to a private group.

The eminent domain bills await committee action.

Also yesterday, Stamford Public Safety Director William Callion and city Economic Development Director Michael Freimuth testified in favor of McDonald's bill to add liens to the arsenal of legal weapons cities and towns can use to fight code violations.

"In Stamford, the problems of overcrowding, illegal rooming houses, illegal occupancy of unsafe cellars and attics and other severe zoning violations are threatening to overwhelm some of our neighborhoods," Callion testified. "Parking, long a local problem in our many older neighborhoods, quickly reaches a crisis when units are illegally subdivided. Emergency responders are endangered by unsafe conditions, overcrowding and congestion."

Callion said the city has been reluctant to use widespread fines to solve problems with blighted housing, but he now believes the ability to impose significant fines is the best way "to achieve prompt compliance from property owners."

The Connecticut Bankers Association opposed McDonald's bill because in the case of a mortgage foreclosure the liens created by the bill would have to be paid off first before a bank could pay to satisfy the mortgage.

"There's no reason to say a bank should pay fines because of the conduct of a mortgage holder," said Bill Champlin of the bankers group. "It will affect the safety and soundness of our banks."

The Planning and Development Committee yesterday approved two bills that would limit eminent domain powers similar to the Judiciary Committee bills. They will likely move to the Judiciary Committee to be combined bills into one package.

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Eminent Domain Reformers Resume Efforts In Legislature;  Committee hears testimony on 2 plans
DAY
By Ted Mann
February 16, 2006
 
Hartford — The General Assembly resumed its debate on reforming state eminent domain laws Wednesday, nearly eight months after the U.S. Supreme Court upheld the taking of private property for an economic development project in New London.

Legislators on the Planning and Development Committee conducted a public hearing on two reform proposals, one of them sharply proscribing the government's right to seize residential properties for privately owned economic development projects, the other instituting procedural checks and a requirement that such takings be approved by a “supermajority” of the local legislative body administering the project.

The reaction from municipal and planning officials to such reform efforts has been consistent since the decision in Kelo v. New London was released last June: Tread carefully.  Hartford Mayor Eddie Perez and Ron Thomas of the Connecticut Conference of Municipalities warned lawmakers to be cautious in altering what Perez called an “economic development tool” much in demand in Connecticut's urban centers.

Thomas said eminent domain remains “a fundamental and necessary tool for promoting the public interest” –– including through economic development projects like the one proposed in New London's Fort Trumbull neighborhood.

But according to opponents of the Fort Trumbull redevelopment project specifically and government controls over private property in general, the two proposals do not go far enough.

“It's inconceivable to me that the Founding Fathers would have interpreted the Fifth Amendment the way the Supreme Court has here,” said Rep. Steve Mikutel, D-Griswold, one of several legislators to testify Wednesday. “The court essentially abandoned the field and left it to the local elected officials, and that is a scary thought.”

Also in attendance were New London opponents of the Fort Trumbull project, including Susette Kelo, the lead plaintiff, and Lauren Ann Canario, a tenant of plaintiff William Von Winkle's who moved to the city specifically to fight the New London Development Corp.'s efforts to seize the private homes and businesses.

The lead attorney for the plaintiffs, Scott Bullock of the nonprofit Institute for Justice, said in written testimony that both proposals were flawed because neither categorically prohibits eminent domain for all private development projects.

Also on hand were a diverse set of lobbying groups, including the Home Builders Association of Connecticut, which opposes seizing property for economic development, a representative said, despite the fact that the organization's members are developers likely to find work in large-scale urban renewal projects.

Wednesday's hearing marked at least the fourth held in recent months on the subject of eminent domain by the planning committee, said its co-chairman, Rep. Lewis Wallace, D-Danbury, and that doesn't include the simultaneous hearings in the Judiciary Committee.

And while lawmakers, including House Minority Leader Robert Ward, R-North Branford, have called for immediate reform of the takings laws this legislative session, committee members said Wednesday that any final language was a long way off.

Ward's own bill to outlaw takings of residential properties for economic development projects will get a hearing in the Judiciary Committee, his aides said.

Some committee members seemed skeptical of the complaints about the proposed bills, as when Thomas questioned the requirement that eminent domain projects like the Fort Trumbull effort be approved by two-thirds of a local legislative body rather than a simple majority.

But, asked Sen. Leonard Fasano, R-North Haven, “Why would the two-thirds vote be an impediment if it's such a good idea that it's worth taking a home or a business?”

“We just think it's not good public policy” to set the bar higher for some projects than others, Thomas replied.

Meanwhile, critics of the committee's efforts thus far, like Joseph D. Wactowski, questioned the legislators' commitment to reforming the law. “In my humble opinion, gentlemen, this is all show,” Wactowski said during his testimony.  That prompted a frosty exchange with Fasano, who said the committee was trying to be fair to both proponents and detractors of projects like the Fort Trumbull development.

“You don't build a consensus in this building, no bill passes,” Fasano said.

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Legislature likely to take up eminent domain in special session
By TED MANN, Day Staff Writer
Published on10/11/2005

Hartford — State House Speaker James Amann, D-Milford, said Tuesday that he expects the General Assembly to vote on eminent domain reform legislation during the special session that convened this morning.

Addressing reporters as he made his way into a caucus to discuss the agenda for the session, Amann said the legislature would “probably” consider placing new restrictions on the ability of municipalities to seize private property for economic development.

The move comes after the U.S. Supreme Court upheld the city of New London's use of eminent domain for private development on the Fort Trumbull peninsula, in a decision that vindicated the state's statutes but sparked widespread criticism among those who felt the ruling was a blow to private property rights.

Seeming taken aback by the vociferous opposition to the use of eminent domain in economic development, state lawmakers eventually asked municipalities to abide by a voluntary moratorium on property takings, convened public hearings on reform proposals and declared their intent to rein in the law.

But Amann's comments were a change of tone from earlier comments by some Democratic lawmakers, who said as late as last week that they did not expect the legislature to take up the issue until the regular session that begins in February.

It couldn't come soon enough for House Minority Leader Robert Ward, R-North Branford, who circulated petitions among his colleagues earlier this fall in an effort to force a special session on eminent domain reform.

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Legislative panel to hear eminent domain testimony Stamford ADVOCATE
By Tobin A. Coleman
Published October 6 2005

The national political storm created by the U.S. Supreme Court decision allowing the condemnation of private homes for commercial development will move into the state Capitol today as legislators consider laws to limit the power of eminent domain.

Today's public hearing is the second before the Judiciary Committee, which is considering five bills that would curtail the powers of state and local government to take private property.

Some of the bills aim to prohibit the takings in all cases where the goal is only economic development, as in the Kelo v. New London Development Corp. case decided by the Supreme Court in June.

One bill, proposed by the Institute for Justice, the nonprofit legal entity that represented the homeowners in Kelo, would end the use of eminent domain simply to raise more tax revenues.

Scott Bullock, senior attorney at the Washington, D.C.-based institute, who represented the homeowners in the Kelo case, said the other four bills would not limit enough government's power to take private land under that scenario.

"That practice will not stop under most of the proposals that are being floated before the committee," Bullock said in a telephone interview.

The Institute for Justice bill would still allow the taking of property in situations where a city or town is trying to clean up a slum or blighted area. But the proposal would also tighten the definition of blight, exorcising current language that allows property to be taken that is "deteriorating" or that impairs the "welfare" or "morals" of a community.

Bullock said such terms are antiquated and can be construed much too broadly.

"Redevelopment laws now allow government to take ordinary neighborhoods to turn them over to businesses to develop more tax revenue," he said. "Our proposal would stop that."

Judiciary Committee Co-chairmen state Rep. Michael Lawlor, D-East Haven, and state Sen. Andrew McDonald, D-Stamford, authored a bill that would set strict conditions on all of the state's eminent domain laws, restricting its use to certain provable public purposes.

Lawlor said their bill would outlaw in Connecticut a situation outlined by Justice Sandra Day O'Connor in her dissenting opinion in Kelo. O'Connor warned that the decision would allow government to take a small hotel and replace it with a larger hotel simply to increase property tax revenues.

"The court today significantly expands the meaning of public use," O'Connor wrote. "It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use."

Lawlor and McDonald's proposal would outlaw such a practice in Connecticut, Lawlor said.

Stamford and Norwalk redevelopment officials are expected to testify today.

Timothy Sheehan, executive director of the Norwalk Redevelopment Agency, said he will testify that cities such as Stamford and Norwalk, that are highly developed with few vacant parcels left, need eminent domain to remain viable.

"The tools should remain," Sheehan said. "If there are ways in which they want to see or guide the employment of the tool that's fine. But to take the tool away from cities, it's going to be difficult to employ a host of economic development projects in Norwalk, and going into the future, how are you going to implement smart growth alternatives?

The hearing is at 2 p.m. in the Legislative Office Building, adjacent to the Capitol in Hartford.

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To State legislators, Malloy makes case for eminent domain
Stamford ADVOCATE
Tobin A. ColemanPublished September 29 2005
BRIDGEPORT -- Stamford Mayor Dannel Malloy urged state legislators yesterday not to overly restrict local government's eminent domain powers as they consider reforms to the controversial law allowing municipalities to acquire private property.

"Where would we have been without eminent domain," Malloy said at a gathering of Connecticut Business and Industry Association members at the Arena at Harbor Yard, describing Stamford's transformation from a run-down industrial town to a financial services center.

Malloy and others were invited to speak after the U.S. Supreme Court decision in Kelo v. New London -- a case that affirmed a municipality's right to take private property to give to a private developer if there is some public purpose. One of those public purposes could solely be a stronger local economy, the court ruled. The speakers also addressed how eminent domain powers could be used to ease development of polluted brownfield sites.

Malloy said the taking of private property should be done carefully and only in circumstances where a real need is shown and the community is behind the decision. He cited the acquisition by eminent domain of several parcels for the site where UBS -- then called Swiss Bank -- now is located. "To exclude this tool completely would be counterproductive," Malloy said.

After a public outcry from the decision from around the country, the General Assembly is considering changes to state law to rein in the power of the state and local governments to condemn property. Gov. M. Jodi Rell this month told the New London Development Corp. to rescind the eviction notices it has sent to Suzanne Kelo and the other plaintiffs in the Fort Trumbull section of the city until the Legislature acts.

State Sen. Leonard Fasano, R-North Haven, ranking Republican on the Planning and Development Committee, said lawmakers are considering many changes in the law to restrict government takings.

Fasano said lawmakers probably won't change the blight section of the law that allows government to use eminent domain to bring back economic vitality to areas that are dilapidated, unsafe or run down. But, he said some are questioning how blight is defined. Replacing one business with a more promising business, just to spur economic development, as allowed in the court decision, rubs him the wrong way.

"I . . . don't want government to make the decision that one business person is better than another business person," he said.

Fasano said there will likely be a bill that allows jury trials to determine the value of a property. Connecticut and New York are the only two states where, if a landowner challenges the value being offered for his property in an eminent domain case, a judge decides how much a government must pay a landowner. Malloy said he was opposed to that because he doesn't want emotion to play a part in land valuation. The extra cost could tip the balance of a project being economically viable, he said.

Fasano also said the Legislature is considering whether to allow a landowner reasonable attorneys fees. Right now, courts can only award the value of the property and assessment costs incurred by the owner, making a valuation challenge too costly for many, he said.

"It's not inexpensive to fight the city," said Fasano, who also is a land-use attorney. "In the poorer neighborhoods, it's very hard to argue price. The benchmark should be the city's (tax) appraisal. If the house is assessed at $120,000, the city should have to prove it has reasons if it only wants to pay $75,000."

Fasano said he also wants to explore changes in the law that allow former property owners to buy back their land at the price they were paid if a planned project does not happen, because the pretext for the taking is gone.

Judiciary Committee co-chairman Andrew McDonald, D-Stamford, will hold a public hearing Oct. 6 on changes to the eminent domain statutes.

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Now it's Ridgefield that wants private property for development
Danbury News-Times
Jul 10, 12:25 PM EDT
RIDGEFIELD, Conn. (AP) -- A new eminent domain case is brewing in Connecticut as Ridgefield officials prepare to take private property to be used for corporate office space.

The developer, Eureka V, is seeking to build 510 townhouses and apartments on 154 acres. The proposal would require a zoning change because the property is now zoned for commercial development.

A town official cited the U.S. Supreme Court's 5-4 ruling last month that widens eminent domain power, granting local governments broad rights to seize private property to generate tax revenue. The court ruled on an appeal from a New London property owner.

John Katz, vice chairman of the Ridgefield Planning and Zoning Commission, said it seems the Supreme Court ruling could "well benefit towns in the taking of unimproved lands."  But he said he believed the decision regarding New London was disturbing.

"I think it is disastrous for what it means to the taking of private homes for the spurious goals of economic development," Katz said. "What passes for economic development today has been seen to be cyclical and there is nothing cyclical about residential displacement of a population."

Ridgefield First Selectman Rudy Marconi offered to buy the land from Eureka V in 2001 for $2.7 million. He told the developer that if necessary the town would take the property using eminent domain.  Eureka V sought an injunction in federal court to halt the eminent domain move and accused Ridgefield of violating the federal fair housing law by trying to prevent Eureka from building houses for people with school-age children.  Eureka has since sought a zoning change, which will be the subject of a Planning and Zoning Commission on Tuesday.

Marconi said he is confident the town will eventually have the property and will go ahead with plans to build 600,000 square feet of corporate office space.  "It is now clear that if Ridgefield is victorious in federal court, which we feel we will be, then we can proceed with an eminent domain taking of the property," Marconi said.

The Danbury News-Times reported that lawyers for Eureka V could not be reached for comment Friday.  Marconi said the New London case is different than Ridgefield's situation.  The property being considered for eminent domain taking is zoned for corporate development and is vacant, he said.

"There would be no displaced families," Marconi said.  Ridgefield has taken land from Eureka V once before. In December 2000, the town took 458 acres paid Eureka V and paid $12.2 million.  The property was sold to the state Department of Environmental Protection and is being maintained as open space.

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By DAN PEARSON Day Staff Writer, Education Reporter & TED MANN
Published on 9/21/2005

New London — Citing an overwhelming lack of trust and confidence in the New London Development Corp., the City Council said Tuesday night that it will dissolve the agency within a week unless it dismisses its president and chief operating officer.

In strongly worded statements, the council also said residents should be aware that the NLDC can take no action on behalf of the city unless the council approves it.

“Time and time again the leaders of the NLDC, despite assurances to be honest, have failed to live up to their promises,” Councilor Beth Sabilia said. “Boy, were we mistaken.We were bamboozled. I don't believe the city can achieve any peace and progress with the current leadership of the NLDC.”

Members of groups that have opposed the NLDC's use of eminent domain to take homes in the Fort Trumbull neighborhood said they took some comfort from the council's action. But some said the council's action was “hot air and window dressing” because it did not rescind the power of eminent domain.

“They have begun a step in the right direction. But they didn't mention eminent domain once, after sitting there for hours listening to people tell them to take that off the table,” said Neild Oldham, chairman of the Coalition to Save Fort Trumbull. “The action the councilors took tonight shows that they have made such a mess they have no idea themselves how to get it right.”

After years of frustration with the NLDC's performance, councilors unanimously passed a vote of no confidence Tuesday in the NLDC, the city's implementing agency for the $73 million Fort Trumbull redevelopment project. The council said the NLDC board must remove President Michael Joplin and Chief Operating Officer David Goebel and replace them with a leadership team “to the council's satisfaction” or the council will dissolve the NLDC.

The action comes after the NLDC failed to meet contract deadlines and to include city officials in its operations, particularly a decision this month to send eviction notices to property owners without informing state officials or councilors of their intent.

Councilor Rob Pero said this “was when the bomb kind of blows up” in his mind, because the evictions occurred only two weeks after the NLDC assured councilors in writing that it would not undertake any forced removals of residents.

Sabilia told a crowd of more than 100 people who attended Tuesday's meeting at New London High School that no councilor or city employee had prior knowledge that evictions would be sent. She again said Goebel and Joplin were “cowboys” acting “recklessly and dangerously.”

After the eviction notices were delivered this month, Gov. M. Jodi Rell said she, too, had lost confidence in the NLDC's handling of the redevelopment project and called on the NLDC to rescind the notices, which it did. But the NLDC Board of Directors did not remove Joplin and Goebel from their positions, as some councilors had hoped.

“My faith in the NLDC is non-existent,” Mayor Jane Glover said Tuesday.  Reached Tuesday night after the council vote, Joplin said it is “unfortunate that cooler and more rational heads are not prevailing.”

“This seems to be an impassioned decision,” he said, “and those kinds of decisions are never healthy for the long-term interests of the city.”

Joplin said that, notwithstanding the comments of some members of Rell's administration that she has lost confidence in the agency, he has been assured multiple times by state officials that they want him to remain in control of the NLDC.  And he added an emphatic defense of Goebel, whom he called “an outstanding administrator.”

“If Dave Goebel goes, I'm going with him,” Joplin said. “Because no one takes a fall for me. ... The city has made a passionate but an unfortunate mistake.”  Rell, who did not send a representative to Tuesday's meeting, has not called specifically for Goebel's or Joplin's dismissal. Asked about the dismissals earlier Tuesday, she said, “(The council) may want to look at individuals within the NLDC,” but “that will be the City Council's decision.”

“In all candor, this has been handled poorly and people are tired of it. Let's have a vote of either confidence or no confidence ... and let's get past this,” Rell said.

The meeting originally was scheduled for Monday evening at City Hall, but was recessed after the fire marshal blocked entrance to the meeting because the crowd would have exceeded the room's capacity, which was lowered to 49 after the city failed to repair a fire escape. City police were called in to control the crowd, which prior to the meeting staged a protest of the NLDC and its use of eminent domain.

Before Tuesday's council vote, dozens of speakers implored the council to take back power from the NLDC and rescind its eminent domain authority.

“Please end the fiasco that has swamped this city and made us an object of derision around the country and around the world,” said Andy Derr, a Green Party candidate for the council. “We have become the city that takes its residents' homes. Let's be the city that refused to do that.”

Residents of New London's Fort Trumbull peninsula have been served with orders to move out by mid-December, signaling the end of the line for the diehards who narrowly lost their eminent domain battle before the U.S. Supreme Court.

New London — Tenants of two houses in the Fort Trumbull neighborhood received notices Monday from the New London Development Corp. ordering them to leave in 90 days and to pay an occupancy fee for the remainder of their time there.

The notices arrived at 49 and 53 Goshen St. three weeks after the U.S. Supreme Court upheld the right of the city and the NLDC to seize houses in the Fort Trumbull neighborhood to make way for a commercial development designed to plump up the tax base.

While the court sanctioned the takings, Gov. M. Jodi Rell and the state legislature also asked all cities and towns to refrain from flexing their eminent domain power until lawmakers had a chance to consider measures that would protect the rights of private property owners.

The owners of the Goshen Street houses, Richard Beyer and Michael Cristofaro, said Tuesday that the NLDC had flouted the will of the legislature and the governor by serving the notices to their tenants.

“These monkeys think they're above the law. Gov. Rell told them it's a voluntary moratorium. But the NLDC doesn't care what the governor says,” Beyer said.

David Goebel, chief operating officer of the NLDC, said the state legislature asked cities to refrain from new takings. While his agency agreed not to condemn any additional properties, he said it did have the right to take ownership of the Fort Trumbull houses because they were seized in 2000.

 “There are no new takings. All this was done five years ago, and now the Supreme Court has ruled. The city has been extremely patient waiting for this to go through the court system. Now that this is done, we're implementing the decision. The legislature asked for a moratorium on new takings, and we agreed to that,” Goebel said.

He also pointed out that the notice instructed tenants to begin talking with a relocation expert hired by NLDC so the agency could help cover their moving costs.

The notice, delivered to tenants who rent the Goshen Street property, asks the renters to pay $600 a month in rent to the NLDC until they move out in December. It also directs them to buy liability insurance and to name the NLDC as an additional insured party.

The letter warns that the NLDC may purchase insurance and bill the tenants if the agency does not receive an insurance certificate within 10 days.

A spokesman for the Institute for Justice, the public interest law firm that represents the property owners, said Tuesday that attorneys would ask the state legislature to pass a mandatory, rather than a voluntary, moratorium to prevent the NLDC from moving on property within Fort Trumbull.

“The City Council has to pass a moratorium,” said the spokesman, John Kramer. “The state legislature, which had a gentleman's agreement with the NLDC to have the moratorium in place, now has to act. This really is a slap in the face to the state legislature, to the governor as well as to the citizens of Connecticut.”

In response to the eviction notices, House Minority Leader Robert Ward, R-North Branford, called on the Democratic leadership Tuesday to convene an immediate special session to prohibit the NLDC from going forward until legislators can agree on revisions to the state's eminent domain laws.

Ward, who has criticized the NLDC and argued that the taking of private residential property for economic development is an inappropriate use of eminent domain, wants the Democratic leadership to ban takings like the NLDC's, and to put muscle behind a moratorium that had been merely rhetorical.

“I thought they might at least wait for the legislature to act,” Ward said. “It's clear that they're ignoring that, so we need to go into session and stop them.”

“The message is, the NLDC is acting despite the moratorium that has been broadly supported,” said Ward's spokesman, Pat O'Neil. “He's calling on the Democrats to put up or shut up.”

“The Democrats are on record as supporting a moratorium,” O'Neil said, “but they're not doing anything about it.”

But a leader of the ongoing legislative review of eminent domain powers said Tuesday that lawmakers are not yet prepared to vote on alterations to the existing statutes, and that they remain determined not to rush themselves in making a change that could have lasting implications for municipalities around the state.

“We are in the process of drafting and reviewing various legislative proposals and the committees with jurisdiction over these issues are still in the process of formulating final legislation,” said Sen. Andrew McDonald, D-Stamford, the co-chairman of the Judiciary Committee, which is reviewing eminent domain laws in conjunction with the Planning & Development Committee.

“That process is not just a perfunctory one,” he said. “It serves an important purpose and that is to craft legislation that is meaningful and responsive to a clearly identified problem. And much to Rep. Ward's chagrin, that takes time. 

“It's all well and good to get in and pass legislation without understanding what it does and what its consequences are, but I don't think the long-term wellbeing of the state is served by passing ill-considered and poorly drafted legislation.”

Ward said he would be willing to wait for a revision of the existing laws, but only if the legislature steps in immediately to prohibit the New London project from going forward, and to give its voluntary moratorium some teeth.

“I think we could go ahead and repeal the economic development statute,” Ward said, referring to the state law used to condemn the properties at Fort Trumbull. “We could do that right away. But given that the Democrats keep saying that that's complicated, they at least ought to agree to stop what's going on in New London immediately. That's what they said they were calling for.”

For Justice Stevens, Kelo Case Came Down To The Constitution;  Though ruling ‘unwise,' the law took precedence
By KATE MORAN
Day Staff Writer, New London
Published on 8/26/2005

U.S. Supreme Court justices read what the papers say about them.

When Justice John Paul Stevens spoke last week to a Nevada bar association, he answered stinging criticism of his majority opinion in Kelo v. New London by acknowledging that he has misgivings about taking private property for economic development. But he said those personal beliefs do not cloud his conviction that the decision was good law.

In a speech in which he critiqued several decisions from the past term, Stevens sketched the fault line between his own views and how the Constitution impels him to rule as a judge.

“Time and again, judges who truly believe in judicial restraint have avoided the powerful temptation to impose their views of sound economic theory on the policy choices of local legislators,” he said. While Stevens went so far as to say that the Kelo case produced “unwise” results, he also said it is the bailiwick of legislatures, not courts, to decide what makes sound public policy.

“My own view is that the allocation of resources that result from the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials,” he said. In Kelo and other cases this term, he added, “the law compelled a result that I would have opposed if I were a legislator.”

Stevens alluded to this ambivalence in his majority opinion, in which he reminded state courts and state legislatures that they can tauten their own eminent domain laws to prevent the kind of taking the high court allowed in the Kelo case. In the recent speech, he said the furor that had erupted in legislatures over the decision demonstrated that policy debates are best hashed out by elected leaders.

“Notably, most of the highly vocal critics of our decision in Kelo have argued that New London's decision was unwise as a matter of policy,” Stevens said. “Be that as it may, I believe that the public outcry that greeted Kelo is some evidence that the political process is up to the task of addressing such policy concerns.”

Jeremy Paul, the Thomas F. Gallivan Jr. Professor of Real Property Law at the University of Connecticut, said it was unusual for a sitting justice to remind legislatures that they can reshape their laws. Stevens was not, however, making a foray into the political arena, according to Paul. He was simply affirming the balance of power between the judiciary and the legislative branch.

“I would not read Justice Stevens' comments as attempting to get in the middle of the political battle between New London and the Institute for Justice,” Paul said, referring to the libertarian law firm that represented the homeowners in the Kelo case. “It's just a reminder that what the court does is about the Constitution, not about what's wise policy.

“The justices don't get paid to decide whether a particular policy is a good idea or a bad idea. They're supposed to decide whether it coincides or does not coincide with the Constitution. They didn't decide in Kelo v. New London whether the state ought to take this property. All they said is that the Constitution doesn't prevent the city from taking it.”

The Institute for Justice, which was on the losing end of Stevens' majority opinion, issued a press release Thursday capitalizing on the irony that he would declare his own decision unwise policy.

“When even the author of the Kelo opinion believes that eminent domain abuse is bad policy, it is clearly time for legislators to act to protect home and small business owners from condemnation for private development,” Scott Bullock, a senior attorney, said in the statement.

Officials in New London, meanwhile, applauded Stevens for keeping his own views about eminent domain at bay and rendering a decision that conformed to legal precedent.

“As a judge, he recognizes the difference between the legislative branch and the judicial branch,” said Thomas Londregan, the city attorney. “Many people do not recognize that distinction. If you are a legislator, you have to make the decision whether or not the marketplace can correct a problem or whether you need government intervention.”

Michael Joplin, president of the New London Development Corp., said New London's situation demonstrated that governments sometimes do need to intervene to improve the economy.

“One place where I would disagree with him,” Joplin said, referring to Stevens, “is that the private sector can take care of this. The private sector cannot take care of this. What we have is an urgent situation of deteriorating inner cities. We cannot wait for the private sector to correct this over the course of one or two generations. There's too much at stake.”

He and members of the City Council said they shared the justice's qualms about uprooting people from their houses to make way for commercial development.

“I'm not without compassion in this regard,” Joplin said. “It's very hard to have to weigh the rights of the individual against the good of the community. When you have to pick one or the other, that is very, very difficult. It's not a role that you would seek.”

Beth Sabilia, a councilor who is an attorney, said citizens who oppose the use of eminent domain for private development should exercise their discontent at the ballot box instead of denigrating judges, as some have done in New Hampshire, where a libertarian group is threatening to take Justice David Souter's house by eminent domain to put up a hotel.

“We are a nation of laws, and to vilify and hold these people up as the devil incarnate for following the law is a cheap way of getting out of your own civic responsibility, and that's taking control of your local communities,” Sabilia said. “The judges are following the law as written.

Associated Press Writer
Sep 6, 1:02 AM EDT

WEARE, N.H. (AP) -- Near the foot of an unmarked, dead-end dirt road sits a humble, mud-colored farmhouse. A sign on a mailbox jutting from a tilted post spells "SOUTER."

Through the years, U.S. Supreme Court Justice David Souter has stuck to his family's home in the central New Hampshire town of Weare, population 8,500. A bachelor, the 65-year-old Souter has lived for decades on the 8-acre property, undisturbed among neighbors whose yards are strewn with rusting farm equipment and old pickup trucks.

The house, more than 200 years old, is one of the few remnants of the original East Weare village, which was seized 45 years ago to make way for a dam.  Today, a California man angered by Souter's support of a recent court decision favoring government power to seize private property by eminent domain wants to seize Souter's farmhouse to build a luxury hotel in this rural area about 15 miles away from Concord, the state capitol.

"We would act just as these cities have been acting in seizing properties. We would give Souter the same sort of deal that the cities have been giving them," said Logan Darrow Clements, of Los Angeles.  Last month, Souter was one of five justices who sided with the city of New London, Conn., in a dispute with homeowners who protested the city's seizure of property for a private hotel and convention center, office space and condominiums next to Pfizer Inc.'s new research headquarters.

The city argued tax revenues and new jobs would benefit the public. The Pfizer complex was built, but seven homeowners challenged the rest of the development in court.  The Supreme Court's February ruling against them prompted many states to examine their eminent domain laws. Some considered legislation to limit or block local governments' power to seize private property for commercial development.  Next month, New Hampshire senators will convene a task force to scrutinize eminent domain laws. A recent University of New Hampshire poll reported 93 percent of state residents oppose the taking of private land through eminent domain for private development.

Clements, 36, has never been to Weare, but is a member of the Free State Project, the libertarian movement that chose "Live Free or Die" New Hampshire as its promised land and wants to move 20,000 followers here.  He knows his hotel plan is hard to take seriously.

"That's sort of the story of my life: Nobody takes me seriously until I do something," the 1992 University of Rochester business school graduate said. "We will be taken seriously when we make a formal presentation to the powers that be in Weare," he said, adding that he is talking to several development consultants.

He said his mission, like his long-shot bid for governor of California in 2003, is rooted in his passion for objectivism, a philosophy of free-will capitalism embodied in Ayn Rand's 1957 novel, "Atlas Shrugged."

"The reason I ran was to express the ideas of objectivist political philosophy, which is we should have a voluntary society where people interact with each other through trade, not through the initiation of force," Clements said. He got 274 votes.  After college, Clements ran an online, venture capital marketplace and started a magazine on the subject. Alongside updates about his "Lost Liberty Hotel" proposal, Clements' Web site features pitches for "The Lexington League," a reality TV show that would expose "virtually untold stories of government abuse around the world."

Souter has declined to comment on the matter. Clements said he's heard from thousands of people nationwide interested in investing or staying at the hotel. Town Clerk Evelyn Connor has had to return checks from people wishing to donate to a hotel construction fund. Clements' announcement also inspired a copycat proposal from townspeople who want to turn Souter's land into a park commemorating the U.S. Constitution.

Connor said it's all a little much for a town where the biggest excitement of the year usually is the Weare Patriotic Celebration, which this year featured an American Legion chicken barbecue, carnival rides and a men-versus-women softball game.

"We just got a Dunkin' Donuts," she said.

Other town officials agree.

"It was the general consensus that we were not interested in taking anyone's property," said Laura Buono, head of Weare's board of selectmen. She said board members are willing to review any formal proposal Clements submits.  But in a state where people fiercely protect their right to local control over land and government, many said the nuisance is Souter's just deserts.

"People around here don't even have retirement funds. It's their land," said Charles Meany, Weare's code enforcement officer. "It's something you really don't want to screw with around here."

He thinks the hotel idea is "ludicrous" and doubts whether Clements will be able to satisfy requirements to prove the economic necessity of building a hotel on Souter's land.  But Clements has his share of local supporters, including David Archambault, who runs a go-cart track near Souter's home.

"What this is doing I think is wonderful, because he's getting a point across to all these people that they're getting too much power," Archambault said.

Robin Ilsley, who makes syrup on a family farm about two miles from Souter's place, thought the justice brought the controversy on himself. "It was a pretty stupid ruling," she said.  Even her mother, who watched Souter grow up, is unsympathetic.

"I like David very much, but I don't like his ideas," said Winnie Ilsley, 77, who runs a doll museum at her farm. "I just don't think it's fair," she said of the New London decision.

And the hotel?

"Let'em build - but I don't think it's going to happen," she said.  Souter has defenders, like Betty Straw, his sixth-grade teacher.

"I think it's absolutely ridiculous," she said of the hotel. "They're just doing it for spite."

State Senate Minority Leader Robert Ward, R-North Branford, last session pushed in vain to reform eminent-domain law. Now, in the wake of the Supreme Court's decision expanding eminent domain, Democratic leaders of the General Assembly are urging communities to forego using eminent domain while they examine the issue and, more than likely, change the law. This change of heart is most welcome.

The high court expanded eminent domain from the Constitution's "public use" to public good if the result is higher taxes. That doomed eight homeowners in New London who live on property the city covets for private development.

The 5-4 decision was a stunner. Justice Sandra Day O'Connor's dissent summed up the feelings of a lot of folks: "Any property may now be taken for the benefit of another private party. ... The beneficiaries are likely to be those citizens with disproportionate influence and power. ..."

That's exactly the case in New London.

There is irony here. High court conservatives -- Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and O'Connor -- opposed expanding eminent domain while more liberal Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsberg and Stephen Breyer carried the day.

Now, in Connecticut, it's Democrats who are saying, "Not so fast."

There is further irony in that the state -- the Republican governor, then John Rowland -- explicitly ordered the properties in the Fort Trumbull neighborhood to be taken by eminent domain -- and not by way of the blight statute.

Had the blight statute been applied there never would have been an issue over eminent domain.

And in a final irony, the Republican governor -- now M. Jodi Rell -- supports a moratorium on eminent domain and prompt action by the legislature to change eminent domain law. That would be appropriate; some 80 statutes cover eminent domain.

Hearings should be held next month, after which the legislature would decide if a special session is warranted or the matter can wait until next session.

Ward has called for a special session to weigh a one-year moratorium on eminent domain. A moratorium makes sense. He's also gathering cosponsors of a measure that would ban using eminent domain for economic development.

The legislature should consider very deliberately all aspects of eminent domain; there is no rush.

Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington already allow using eminent domain for economic development only to eliminate blight.

Connecticut should join them.

CONTACT YOUR LEGISLATORS...also, telephone the following:
Gov. M. Jodi Rell:566-4840
Senate Democrats: 240-8600
Senate Republicans: 240-8800
House Democrats: 240-8500
House Republicans: 240-8600

‘Just Compensation' - How much would you want if the government seized your home?
By KATE MORAN
Day Staff Writer, New London
Published on 7/3/2005

New London -- It was never about the money. Susette Kelo has always maintained that she fought to save her pink cottage in the Fort Trumbull neighborhood out of conviction, not to wrangle more money from the city that plans to displace her to make way for a commercial development.

“I just want to keep my house,” she said on a recent Friday, as she sat on her front porch in the shade of a turquoise umbrella. “Why can't we stay here?”

Kelo and her neighbors defied the city all the way to the Supreme Court, which ruled late last month that the city was justified in seizing their property to incubate development that could help revive the city's economy. They still have the right, however, to challenge in state courts for more money than the city offered when it condemned their properties five years ago.

The homeowners say a fight over how much they should get for their properties is the last thing on their minds. They believe they have public opinion behind them, and they plan to muster it to make it uncomfortable for the city to evict them from their homes. On Tuesday, they will hold a protest on the steps of City Hall with their attorneys and activists who believe New London overreached in taking the land for private development.

While the fight stews locally, legal scholars are starting to conceive ways that eminent domain might be made more palatable to those who stand to lose their property. Some of these scholars say government should have broad latitude to take private property, but it should also offer generous compensation to prevent owners from feeling jilted.

The Fifth Amendment allows governments to seize property under two conditions: if the taking is for a public use and if the government awards the owner “just compensation.” Courts have interpreted just compensation to mean the property's value on the open market, but scholars note that such a price does not atone for sentimental loss.

“Market value is supposed to be an objective thing, but it's very often the case that people place a higher value on their own home than what the market would place on it, because they really don't want to move. Moving is gut-wrenching. When they get the market value of the home, they feel robbed,” said Jeremy Paul, the Thomas F. Gallivan professor of real property law at the University of Connecticut Law School. “What would perhaps be a useful direction for the law to take is to figure that in some circumstances we ought to pay people a little more than the market value.

“There is very strong constitutional language to support that,” Paul added. “The constitutional phrase is not market value, but ‘just compensation.' We've assumed that the phrase has to mean market value, but there's no constitutional requirement for that.”

The difficulty, of course, is how to place a value on something as insubstantial as sentimental attachment to a home. Justice Anthony M. Kennedy suggested during oral arguments in the Kelo v. London case that owners be paid a “premium” when their houses are taken for redevelopment, but the Supreme Court addressed the compensation issue in only a footnote of its majority opinion.

Scholars say a change in how takings are compensated will likely come not from the courts but from state legislatures, which can adopt several methods for increasing remuneration. They argue that such changes would not only make takings less inimical to property owners, but they would also deter governments from using eminent domain in all but the most vital cases.

•••

Susette Kelo would have turned a handsome profit if she had willingly sold her cottage when the city and its partner, the New London Development Corp., approached her in late 2000. She purchased her house for $56,000 in 1997 and would have walked away only three years later with $123,000, a sum local real estate agents say was generous at the time.

Real estate prices have escalated substantially since then, but Kelo and her neighbors will not profit from the value that has accrued to their homes. State law stipulates that governments must compensate owners for the value of their property on the date of the taking, not its value in the current market. New London has technically owned the houses since 2000.

When Kelo finally takes possession of the money the city deposited for her in the New London Superior Court, she will have a difficult time finding a home comparable to her cottage with water views. Condominiums are selling in New London these days for the price she will get for her house.

The Dery family, similarly, will receive $506,000 for the four houses it owns on East and Walbach streets. In all, the NLDC has $1.72 million in escrow in the court to pay the owners when they are finally removed from their property.

“We're going to leave here broke,” Kelo said.

Many attorneys say this system is fair because it discourages owners from delaying government projects in hopes of collecting more money in a few years. It also protects owners against a decline in real estate prices.  Others argue that government often compromises the financial health of the original owners when it seizes their properties.

When the Kelo case went before the Supreme Court, groups such as the AARP filed briefs arguing that government takings force individual property owners to accept a heavy burden for projects that will serve the public good. Elderly residents who have paid off a mortgage might have trouble finding a home of comparable quality in the current market. Businesses might lose the patronage of clients accustomed to visiting them in a particular location.

Scott Sawyer, a local attorney who represents the Fort Trumbull homeowners, says governments should have an obligation by law to see that people they remove from their property are unharmed.

“How do you change a person's emotional and financial life as little as possible?” Sawyer asked. “You might try to find a similarly situated property and then purchase it in such a fashion that the homeowner's bottom line on a monthly basis doesn't change very much.”

Sawyer filed paperwork shortly after the government seized the Fort Trumbull properties in 2000 to preserve the right of the owners to challenge for more money if they lost their case to remain in their homes. Compensation proceedings will not begin until the city moves to evict the residents, and only then if the owners decide to pursue the additional money.

“We're not even concerned about the money presently. But certainly as an attorney it's hard not to be prepared,” Sawyer said. “We're prepared to make the city pay every dime necessary to make our clients whole.”

The city, however, believes the compensation fight might not be as clean as a simple hearing before a judge. Because the city has technically owned the houses since 2000, its attorneys believe the residents were living in them as tenants free of charge while their case wound its way through the courts.

More than a year ago, those attorneys sent a letter to lawyers for the homeowners informing them that the residents could be liable for use and occupancy fees if the courts upheld the city's use of eminent domain. They said at the time that they wanted to give the owners ample warning about the potential costs.

Both sides signed a pretrial stipulation as the case was getting under way in early 2001. The agreement was essentially a cease-fire that allowed the owners to remain in their houses and to collect rent if they hosted tenants of their own, but it required that they provide the city with an accounting of their income and expenses. The city says the purpose of that accounting, which the owners never submitted, was to square what might be owed to each side at the end of the trial.

Thomas Londregan, the city attorney, said city officials have not discussed how they will handle the issue since the Supreme Court released its decision a little more than a week ago. David Goebel, the chief operating officer of the NLDC, also says that his agency has not made any decisions.

What is clear is that questions of who had the right to use and profit from the properties became murky during the years the eminent domain case spent in court. While the city technically held title to the houses, some of the owners were paying taxes during that time, though none are paying them now.

Goebel says he does not know whether the questions will be decided during a compensation trial or a separate proceeding. The resolution, by whatever means, will likely take months.

•••

Justice Anthony M. Kennedy, the swing vote who concurred with the city in the Kelo case, spent several minutes during oral arguments in February pressing the attorneys about whether property owners might be paid more generously when they were the targets of eminent domain. His line of questioning was surprising because the court had only an hour slated for arguments, and compensation was not the question before the court.

“Are there any writings or scholarship that indicate that when you have property being taken from one private person ultimately to go to another private person, that what we ought to do is to adjust the measure of compensation, so that that owner — the condemnee — can receive some sort of a premium for the development?” Kennedy asked.

Neither Kennedy nor the other justices returned to the issue of compensation in their opinions, except in a footnote, but many attorneys believe they were suggesting that higher payments, rather than restrictions on the use of eminent domain altogether, are one way to make forced sales more tolerable to home and business owners.

“There has to be some sort of premium awarded for an involuntary sale where it's not a straight public use, where there is a benefit to a third party,” local attorney Matthew Berger said. “But determining what that is — courts don't want to do it. It is a rule for the legislature to make up. Even during oral arguments, it was clear that everyone agreed there should be a premium, but no one stepped into the breach to determine what that additional compensation should be.”

Londregan, the city attorney, says that legislatures will not want to boost compensation when property is taken for private development because then they also will have to pay more to those who lose their homes to schools, highways and other traditional public works projects. He says the pain of losing a home is equal whether it is taken for redevelopment or for a road.

Plus, says City Councilor Beth Sabilia, governments should not be paying exorbitant prices for property with taxpayer money.

The law already provides some dispensation, including moving expenses, to help displaced owners remain financially sound. Owners who lose their land also are not liable for closing costs, commissions or conveyance taxes. But some scholars say governments should give even more to cover their losses, such as search costs for finding a new home or the money to live in a temporary residence for a few months. Others argue that economic development presents a special case in which property owners should receive a special price.

Thomas Merrill, the Charles Keller Beekman professor of law at Columbia University, suggested the legislatures might award the owners of occupied homes and functioning businesses — if not necessarily the owner of a vacant warehouse — a standard percentage above fair market value.

He says history offers examples of governments making such provisions. He points to century-old mill laws that allowed water to be dammed so that it flooded another property upstream but required the aggrieved owner to be reimbursed for 150 percent of his property's value.

Merrill, who wrote a brief for the American Planning Association in the Kelo case suggesting that legislatures might increase compensation, says owners could also share in the gains developers reap when the government helps them assemble large tracts of property, such as the 90 acres the city amassed at Fort Trumbull.

“Using eminent domain to aggregate parcels together increases values through the assembly process, because large tracts are particularly valuable in the marketplace. Everyone has assumed the condemning authority gets to keep that bonus,” Merrill said. “It could be conceivable to adjust compensation so part of the bonus is transferred to the homeowners, which would tend to remove some of the incentive to using eminent domain for real estate development purposes.”

Merrill says, however, that a lot of work is ahead before governments change compensation to keep owners from experiencing too much hardship or accounting for the personal loss they might feel when they are forced to sell property they were planning to keep.

“It's all pretty inchoate right now,” Merrill said. “The suggestion in the brief was really for some kind of future adjustments that might be made mostly likely by legislatures, not by courts... There is no formula for figuring out subjective loss. Economists would say it's a real value, but there is no way to compute that.”

New London — For opponents of the U.S. Supreme Court decision upholding this city's seizure of houses for economic development, the silver lining might be even bigger than the cloud.

The response to the court's decision, which reinforced the right of cities to turn over private homes to a private developer to generate more taxes, has been bursts of outrage from people –– conservative and liberal –– across the country, and efforts by some of their elected representatives to curtail the government's ability to take land.

“This is disappointing,” said Nancie G. Marzulla, president of the Washington-based lobbying organization Defenders of Property Rights. “But we have been thrilled to see people in Congress who were never talking about property rights all of a sudden saying, ‘We've got to do something.' We've just got to make sure they do the right thing.”

The House of Representatives voted Thursday to prevent the use of certain federal funds in any projects that use eminent domain to give property to private developers solely for the purposes of economic development –– not for less controversial public uses, like the building of schools and roads or clearing of blighted areas.

Marzulla said her organization supports altering the law to require “no net loss” of property in takings, meaning the government would have to give up land in order to take more.  The group believes it is a policy that could help prevent lengthy disputes like that between the New London Development Corp. and the Fort Trumbull homeowners led by Susette Kelo, by making eminent domain a less feasible and attractive option for planners.

“Before government ever gets to thinking there's a public use ... the government needs, at the outset, to say, ‘Do we really need to take private property?' ” Marzulla said.

If not that far, Congress is poised to go further than it did Thursday: Members of both the House and Senate have introduced bills to prevent the use of any federal money for redevelopment projects like New London's, in which the development corporation is attempting to transform the blue-collar Fort Trumbull neighborhood into a complex of offices, high-end housing and commercial space, complementing the adjacent research headquarters of Pfizer Inc.

Under the bill introduced by Rep. F. James Sensenbrenner, R-Wis., the chairman of the House Judiciary Committee, “no federal funds can be used in any way to support takings for reasons of economic development,” said Jeff Lungren, a spokesman for the committee. It also would prohibit such a taking by the federal government.

“It's the strongest thing that Congress can do to say that we disagree” with the decision, Lungren said.

A Senate version, sponsored by Sen. John Cornyn, R-Texas, also is gathering momentum and co-sponsors, his staff said, and both bills have won support from Democrats as well as the Republican leadership.  From the lawmakers representing New London itself, reaction was muted –– at least compared to the fiery rhetoric of Sensenbrenner, who reportedly compared the recent decision to the court's 1857 ruling in the case of Dred Scott, in which it upheld human slavery.

Neither Sen. Christopher J. Dodd nor Sen. Joseph Lieberman, both Connecticut Democrats, had endorsed the Cornyn bill Friday, and Dodd said he was still deciding how to proceed.

“I'm currently reviewing legislative proposals,” Dodd said in a statement released by his staff. “It's a difficult issue because there's a need to strike a balance between a community's compelling interest in economic development and the important concerns of home and property owners.”

Lieberman, sitting shiva for his mother, who died late Sunday night, could not be reached for comment.

Meanwhile, Rep. Rob Simmons, R-2nd District, reiterated his opposition to using eminent domain for economic development, and voted in favor of several related amendments to a budget bill, including the measure that prohibited using selected federal transportation, treasury and housing funds for such a project.

Rep. Nancy Johnson, R-5th District, joined Simmons in the vote, while the rest of the state's House delegation voted against the provision.

“Congressman Simmons opposes the use of eminent domain strictly for economic development purposes,” his chief of staff wrote in an e-mail message. “Instead, eminent domain should be used in only the most unique of circumstances and be limited to a larger public interest.”

Simmons supports the efforts of state Republicans, including Gov. M. Jodi Rell and House Minority Leader Robert Ward, R-North Branford, to examine and revise Connecticut's eminent domain laws. In interviews this week, Ward suggested that could be done as soon as this summer, if the legislature reconvenes to consider bills vetoed by the governor.

Simmons' chief of staff, Todd Mitchell, also said the congressman was confident that the efforts to eliminate federal funding for economic development takings would not harm efforts to develop a Coast Guard museum at Fort Trumbull, since Congress has oversight of the project and it is to be built with private donations.

Meanwhile, as lawmakers from across the country and the political spectrum railed against injustice and vowed to outlaw the actions in the Fort Trumbull case, David Goebel, the chief operating officer of the New London Development Corp., let out an exasperated sigh.

“You know, you can't worry about what you can't control,” he said when a reporter called to ask about the House and Senate bills, and what effect they might have on the corporation's ability to finish its project at last.  Congressional leaders are “running on emotion,” Goebel said, and “not checking the facts” as they rush to condemn the NLDC's work.

“Not a one of them has come down to New London and seen the way it is,” he said. “Not a one. It ain't fair, but there's nothing we can do about it.”

But despite the entreaties of municipal officials, many of whom strongly support the use of eminent domain as a rare but necessary development tool for cities and towns, politicians are hearing the voices of voters, said Howard Reiter, the head of the political science department at the University of Connecticut.

There is “a strange alliance of liberals and conservatives in Congress now,” Reiter said. “On the one hand conservatives are very concerned about property rights, and on the other, liberals are concerned that poor people are being uprooted.”  The usual characters seemed to be borrowing each other's scripts, Reiter said, including the dissenting Justice Sandra Day O'Connor, who called the logical end of the majority's opinion “perverse.”

O'Connor “used populist rhetoric,” Reiter said. “I didn't hear a lot of conservatives yelling class warfare, the way they do whenever Democrats talk about this.”

At Defenders of Property Rights, they were hearing a call to arms, one that helped take the sting out of a defeat.

“We're thrilled,” Nancie Marzulla said, “at the wakeup-call effect that this has had.”

Two federal lawmakers introduced legislation this week that would prohibit state and local governments from exercising their eminent domain powers in pursuit of private development when federal dollars were funding their projects.

Sen. John Cornyn of Texas floated a bill Monday that he said would protect home and small-business owners from the U.S. Supreme Court's “alarming” decision last week in Kelo v. New London that private development qualifies as a public use if it can supply jobs, taxes and other intangible benefits that help cities recover from economic depression.

On Tuesday, Rep. Dennis Rehberg of Montana introduced companion legislation in the House after his staff received calls from numerous constituents outraged by the court's decision.

“Montana is the kind of state that values property rights,” said Brad Keena, the communications director for Rehberg. “It just strikes at the heart of what Montanans believe in: preserving small business and protecting homeownership.”

Scott Bullock, the Institute for Justice attorney who participated in oral arguments, said Tuesday he has been “swamped” with calls from legislators who want to shrink the power of eminent domain. His firm will hold a press conference today to announce what he called a “major initiative” to fight the taking of private property at the state level.

“This has touched off a firestorm of controversy and protest,” Bullock said. “We want to take the energy and anger out there and put it into a constructive effort to change the law.”

Thomas Londregan, an attorney who represented the city of New London in the Kelo case, said the supposed “hysteria” over eminent domain is a product of a public relations campaign by the Institute for Justice, which he said has “marketed the fear” that governments now have limitless power to seize private property.

Londregan said Tuesday the Kelo decision does not give governments carte blanche to seize property in any residential neighborhood for the sake of handing it to a private developer. On the contrary, he said, the court endorsed the planning that New London undertook to improve its economy before a private developer had even been selected.

“The court very carefully considered the extensive planning process that occurred in New London,” Londregan said.

“Approval by the state legislature, the state executive branch, the City Council of New London and a review by the courts were all necessary before eminent domain could be exercised. This was not a pretext for some other goal.  This was truly a plan for New London, not for any developers.”

Although the Supreme Court endorsed the city's position, the majority noted that legislative bodies and state courts still have the right to narrow the scope of eminent domain. The majority took the position that legislatures, not federal judges, are best suited to determine what sort of public uses warrant the seizure of private property.

State and federal lawmakers are now taking up the challenge, powered by a dissenting opinion signed by the court's four conservative justices that lambastes the use of eminent domain for private development. Cornyn, a conservative Republican, relied heavily on that dissenting opinion in a floor speech Monday introducing his bill.

That bill has found co-sponsors in one Democrat, Bill Nelson of Florida, and six Republicans: John Ensign of Nevada, George Allen of Virginia, Conrad Burns of Montana, Mel Martinez of Florida, Jon Kyl of Arizona and Craig Thomas of Wyoming.

Cornyn said in his floor speech that the recent Supreme Court decision underscored the importance of placing property-rights advocates like Janice Rogers Brown, the California judge criticized by liberals and recently confirmed to a federal circuit court of appeals by the Senate, on federal courts.

Sens. Christopher J. Dodd and Joseph I. Lieberman of Connecticut were unavailable for comment Tuesday, but a spokesman for U.S. Rep. Rob Simmons, R-2nd District, said the congressman has not seen the bills but generally supports legislation that restricts eminent domain to all but the most exigent cases.

“Eminent domain should be used in only the most unique of circumstances and be limited to a larger public interest,” Simmons' chief of staff, Todd Mitchell, said in a statement. “Mr. Simmons also welcomes the governor's call for a careful and thorough review of Connecticut's eminent protect private property rights throughout the state.”

Defenders of property rights got punched in the stomach Thursday when the Supreme Court delivered its long-awaited Kelo v. New London decision. But the decision should spur renewed interest -- and participation -- in local government.

The Fifth Amendment of the Constitution is pretty clear in telling us what government cannot do. It says, "... nor shall private property be taken for public use without just compensation."

What part of "public use" is vague or open to interpretation? Public "use" is not "betterment" or "best interests of all."

Use is use. Unless you've followed five members of the Supreme Court who have wandered through the looking glass to the place where they found Sir Edward Coke to be wrong.

In 1644, Coke, a lawyer and defender of British common law, wrote, "a man's home is his castle."

Maybe in 1644 England. We now know that in 21st century America, a man's home is his sand castle to be washed away by any government whim that discerns a buck can be made.

Go-ahead to bulldozing

How else do we interpret the Kelo decision that gives the go-ahead to bulldozing a non-blighted, middle-class neighborhood in the name of more property taxes? Not a school, a highway or a library, mind you. More money.

This decision is dead wrong, although no one should be shocked by it. This, after all, is the same court that on its last foray through the looking glass ruled that sick people could not seek relief from pain by smoking home-grown marijuana obtained at no cost. No, that would violate the interstate commerce clause of the Constitution, the court reasoned.

But now that the court has again ruled that foolishness is the law of the land, how do we deal with it?

Justice John Paul Stevens, writing for the majority, offers this solace: "We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power."

Utah passed law

Makes sense. Earlier this year, Utah passed a law forbidding the use of eminent domain for projects such as sports arenas.

That law also puts a one-year moratorium on blight condemnations. That allows the legislature time to decide exactly what constitutes blight and how much blight allows the government to seize a property.

The Virginia legislature passed a law this year allowing property owners to seek higher compensation when property is taken by eminent domain.

Michigan has narrowed its interpretation of eminent domain.

In Connecticut, House Minority Leader Robert Ward, R-North Branford, has tried unsuccessfully to limit the application of eminent domain. He deserves better, and, given the Kelo verdict, his colleagues had better recognize that.

But absent the broad brush of state law, communities can -- and should -- write their own eminent-domain ordinances. And they should do so sooner rather than later.

In New London, a developer had proposed upscale condominiums, a hotel and a marina to be built in the Fort Trumbull neighborhood. Should eminent domain apply only to proposals valued in the tens of millions of dollars?

What if Mr. Smith covets Mr. Jones' house as the location for a gas station? Should Smith be allowed to buy that property via eminent domain? If Smith argues that his gas-station business would pay the city $10,000 a year in property taxes as opposed to homeowner Jones' $5,000 in property taxes, how does the city react? More taxes -- however marginal -- benefit the city.

This decision has the potential to make outright bribery of officeholders an attractive option for someone seeking to use eminent domain. Pay off officials and be granted the go-ahead.

Community officials right now should be discussing how to deal with eminent domain -- and voters should be paying attention.

Far-reaching potential

This has the potential to affect any homeowner or business owner in the state.

Ordinances must be structured to deal -- in advance -- with eminent domain. It cannot be applied selectively -- nor can one size fit all. And it must be an application of last resort.

This is a municipal-election year. Rarely is an issue as vital to communities as eminent domain been a topic of discussion.

This should cause voters to pay attention, get involved, even run for office.

When voter turnout in the 25 percent range is the norm for municipal elections, and 40 percent of office holders are unopposed, the system is not working well. And that is the case in Eastern Connecticut.

The Kelo decision is wrongheaded, but there just might be a silver lining in this dark cloud. That would be the acknowledgment of the people that taking part in government is no less than acting in self-interest.

Think about this decision. And get involved.
 

Originally published June 26, 2005

The bill passed the General Assembly's Judiciary Committee, 38-4. It would permit municipalities to seize only vacant, abandoned or unimproved
properties if the resulting project would be privately controlled.  Property acquired for uses such as schools, roads and parks would not be affected.

The bill was proposed by House Republican leader Robert Ward of North Branford in response to a state Supreme Court ruling that he said went too
far.  In the case decided last month, Susette Kelo, et. al., vs. New London, the court ruled that the city's Development Corp. had the power to
seize Kelo's private home and the homes and properties of her neighbors in their historic waterfront neighborhood.  The court ruled that the goals of
the city's redevelopment plan -- new jobs, increased tax revenues and revitalization of the economically distressed city -- were valid public uses
under the takings clauses of the state and federal constitutions.

New London is redeveloping the 90-acre Fort Trumbull area along the Thames River, adjacent to the research and development facility opened in
2001 by Pfizer, a pharmaceutical company.  Ward said the court decision in Kelo flies in the face of an American tradition, that a person's home
should not be taken away and turned over to another private entity, even with the goal of improving economic vitality.

"A person's house is their castle, their refuge from the world and their portion of the American dream," he said. "It is a major event in one's life to
become a homeowner. It is a source of pride and certainly is a huge investment in the future. The government should not take it so lightly."

Ward said the Kelo decision expanded the powers of eminent domain beyond reason, necessitating a change in the law.  "I don't think the real
intent of eminent domain was to simply pick the most attractive use for economic development purposes and give it to the favored developer," said
Ward, a lawyer.

"New London is a clear example of perfectly fine middle-income housing that would be taken by eminent domain because the town thinks it can get
more taxes from a larger development."  Ward said the market should prevail. Developers should be willing to pay a premium to property owners if
their intent is to marshal together a parcel big enough for a project.

State Rep. John Wayne Fox, D-Stamford, agreed. Fox is the lawyer who represented the owners of Curley's Diner in downtown Stamford in their
successful fight against seizure by the Stamford Urban Redevelopment Commission for the Corcoran Jennison project on West Park Place.  Fox also
represented the late William Pitt when Pitt's office building on Washington Boulevard was slated to be demolished to make way for Swiss Bank
Corp.'s U.S. headquarters; the company is now known as UBS. Pitt had argued that it was wrong for the government to allow the taking of one
viable commercial property to hand it over to another private owner. The company eventually paid Pitt several million dollars more for the property
than had been originally offered.

Fox said legislative action is needed to reverse the overreaching effect of the Kelo decision.

"I do not agree that the constitution ever intended that property be taken and handed over to a private developer for their economic benefit," he
said. "If that's going to make some difficulty for some municipalities, I think that's unfortunate. . . To take property from one private citizen for the
benefit of another private citizen, I just think it's bad public policy."

Citizens groups around the country recently have won several battles against the use of eminent domain to seize private homes for redevelopment.
Residents in Baltimore County, Md., successfully rejected at the ballot box a law that would have increased the government's power of eminent
domain. Pittsburgh residents fought a proposal in 2000 that would have demolished about one-fifth of the downtown and turned it over to a private
developer.

In New Rochelle, N.Y., residents successfully fought back a plan by furniture company Ikea to locate a store that would have razed more than 100
homes and businesses. After a three-year battle, the city council in 2002 rescinded the blight designation...

In Norwalk, Maritime Motors, a South Norwalk car dealership, is appealing the seizure of its West Avenue property for Reed-Putnam, the largest
redevelopment project in the city's history. The city has won the first round in the court battle to take the two parcels of land, totaling 1.6 acres,
for inclusion in the $250 million 17-acre Riverwalk portion of the city's urban renewal plan.

Not everyone agrees with Ward.  Norwalk Redevelopment Agency Director Timothy Sheehan said that without the power to seize properties in
blighted areas, cities and towns would have their hands tied trying to revitalize rundown areas. Norwalk is considering a redevelopment plan in the
Wall Street area that would include taking control of 40 properties. Sheehan said negotiating a purchase is always the best option, but if one or
two property owners hold out, the city should have the power to step in and condemn the land.

"The private developer is going to try to negotiate as much as possible," Sheehan said. "Eminent domain is usually more costly than to come to an
agreement on fair market value. But as a private developer goes through, it doesn't want to be subject to somebody who is being outrageous in
their demands for valuation.  That's when eminent domain has been used effectively."

State Sen. Andrew McDonald, D-Stamford, co-chairman of the Judiciary Committee, was one of the four committee members who voted against
Ward's proposal.  "The power of eminent domain is a power of last resort," McDonald said. "But if you could jump back 40 years in your mind to
what Stamford was like in 1963 or '64 and you compared it to the downtown of today, you would understand the importance of having
redevelopment techniques available for turning municipalities around."

In the 1960s, 1970s and 1980s, the Stamford Urban Redevelopment Commission relocated about 600 families from downtown to make way for the
redevelopment of the area by lead developer F.D. Rich Co.  URC counsel Rachel Goldberg said that without the ability to use eminent domain for the
UBS site, Stamford would have had much more difficulty climbing out of the recession of the mid-1990s.

"That deal sparked all of that economic activity," Goldberg said. "I think it was a major ignitor. Stamford, Norwalk right now, both have greatly
benefited from the use of these laws as has New Haven, as has Hartford, every major community in the state."  Goldberg said concerns about
overuse of eminent domain can be addressed by building in additional safeguards to assure that a proposed development serves a greater public
purpose when balanced against the rights of property owners.  "But don't throw the baby out with the bath water," she said.

Stamford Mayor Dannel Malloy said municipalities need to have the eminent domain tool to revitalize blighted areas. But he also said he believes
developers who would profit from projects that cities have helped put together should pay a fair price to the original owners.  "It's one thing to
protect rights, which I'm for, but another to put individual rights so far above public rights it doesn't make any sense," Malloy said. "But the idea
that someone's property is taken under one kind of zoning and you rezone it differently and don't take that into account, I think that's not fair.

"If you condemn a property under a single family zone, then rezone it and make 25 units and then only pay that person for one housing unit, I think
that people need to be properly compensated under those circumstances."  David Blackwell, staff attorney with the Urban Legal Initiative at the
University of Connecticut School of Law, said the government's ability to take private property should be well regulated.

"Eminent domain shouldn't be the first thing out of the blocks," said Blackwell, a former state representative from Manchester. "Find other ways
around your land acquisition if you can, such as the marketplace. Eminent domain is a tool in the planner's tool box, but it should be used sparingly
and after careful deliberations as to its need."
 

Ward's proposal is on the House calendar. He said he will discuss it with other lawmakers in an attempt to find language on which everyone can
agree. 

A Sad Day For Property Rights
Hartford Courant editorial
June 24, 2005

Supreme Court Justice Sandra Day O'Connor got it dead right. Municipalities shouldn't be able to take a person's property and uproot families, even if they are compensated, in order to accommodate developers.

Sadly, Justice O'Connor's sage comments were on the dissenting end of a Connecticut case critical to property owners everywhere, Kelo et al vs. New London. The justices ruled 5-4, with Justice O'Connor in the minority, to uphold an earlier decision by the Connecticut Supreme Court that allows cities and towns to take private property for private use simply because the new owner might produce more tax revenue for the community.

Nationally, eminent domain has been applied inconsistently and, in this case, abusively. Government should take private property only as a last resort for public projects, such as roads, schools or cemeteries, or for public benefit in cases that eliminate blight - not on a vague promise.

But in the New London case, Susette Kelo and her neighbors in the Fort Trumbull area were being forced to sell their homes so the city could develop the area to complement the adjoining Pfizer Corp. research center and attract tourists to the waterfront. Envisioned are offices, a five-star hotel, a health club, condominiums and a Coast Guard Museum.

Except for the museum, this does not meet the standard of public use, particularly because the homes were condemned before the plan was fully formulated. Lack of a concrete plan didn't stop the leveling of the working class neighborhood. It now resembles a moonscape, with the few remaining families who filed the lawsuit holding out gamely for fairness. It was in vain, as it turns out.

The court majority, led by Justice John Paul Stevens, said, "We decline to second-guess the city's considered judgments about the efficacy of its development plan."

This decision may please municipal officials who now have fresh license to determine how private property may serve the public interest. But the ruling is dangerous and should raise the hackles of all property owners.  If a town decides it wants to take your home and land for, say, a Wal-Mart or another private development project that has potential tax benefits for the community, nothing can stop it as long as it pays so-called "just compensation."

As Justice O'Connor noted in her dissent, the beneficiaries of this ruling are likely to be those with influence and political power, including large corporations and development firms.

The state legislature must rein in this authority with clear guidelines and ethical safeguards that will protect homeowners from poor decision-making and avoid corruption that is bound to thrive under the broadened scope of eminent domain.

A lot of people are really upset over the U.S. Supreme Court's recent ruling that governments can use eminent domain to confiscate private homes and businesses and give them to developers who want to build shopping centers, casinos, Wal-Marts, skyscrapers and hot-dog stands.
Among the things they worry about is that giving politicians the right to take private property arbitrarily might, just might, provide an opportunity for — and we know this is hard to believe — political corruption.

The concern is that some mayor or other civic official, having been duly compensated under a large table by a covetous developer, will snap up a few key properties his newfound friend needs to complete his project.  Of course, the Supremes were very clear in stating that any taking of private property for commercial use must demonstrate a clear economic benefit for the entire community.

What is not so clear is just how the decision on whether a development proposal constitutes clear economic benefit will be made. Who will distinguish between the commercial developments that will rev up the economy and the commercial developments that will rev up the developer's wallet?

A textbook example of how greedy municipal officials and developers use eminent domain for ill is a Bridgeport catastrophe called Harbour Place.

Connoisseurs of Bridgeport's vast collection of vacant lots are particularly fond of a 50-acre tract of weeds and dirt just south of Interstate 95 on a peninsula formed by the Pequonnock and Yellow Mill rivers.

The homes and businesses on that land were bulldozed in the late 1990s to make way for, what at the time was called (with the straightest of faces), "a billion-dollar development" — the aforementioned Harbour Place. (The British spelling added a much-needed dollop of class to this otherwise tawdry pipe dream.)

The project, the only tangible evidence of which was a snazzy color drawing, was supposed to include a shopping mall only slightly smaller than the town of Stratford, magnificent hotels, towering apartments, plush theaters, gourmet restaurants, even a pier for passing cruise ships.

To obtain the hundreds of properties needed to build Harbour Place, city fathers used eminent domain like a cudgel, bashing away until no one and no thing was left standing.  In a flash a serviceable neighborhood filled with very habitable homes and very viable businesses vanished like a gambler's lucky streak. The people who inhabited those homes were disbursed like so much fly ash spewing from the chimneys of the power plant across the river.

Harbour Place, needless to say, has not been built. The city's chosen developer, a man named Alex Conroy, had somehow convinced the Ganim administration he had access to tons of money, which he didn't.  In the end, Conroy sued Ganim and Bridgeport, charging the rug had been yanked from under him so that certain Ganim faves, both named Lenoci, could take over the development rights.

As for all those little people and little businesses that got blown away to make way for 50 acres of the weeds and crumbling asphalt? Well, hey folks, better luck next time.

Unlike the residents of the little harbor neighborhood on New London's harbor, who took their case against the city to the highest court in the land, the people of Harbour Place, mostly renters, did not fight back. They just packed their belongings and walked off into the sunset.

Maybe next time.  The Supreme Court's eminent domain ruling ensures there are going to be a lot more next times.

Raise house price

The Supreme Court's majority opinion offers considerable solace to those fearing the long arm of the state. Governments are unlikely to seize private land based purely on speculation, because economic development projects must go through lengthy and careful democratic review processes. Moreover, homeowners whose land is taken are entitled to be paid for their homes, and governments must therefore muster scarce tax revenues to pay for economic development schemes. These obstacles are likely to block the worst sort of government excess, and the court was wisely unwilling to establish a blanket roadblock to economic development simply because some abuses may slip through.

The deeper problem, and one not fully resolved by Thursday's decision, is what to do when government tries to avoid the tab for an economic development project. Raising taxes to purchase private land is tough. Suppose that government officials tell voters the revenues from the development will more than offset the cost of the purchased land. In such cases, the constitutional check on eminent domain may not function properly. Yet the solution is not to block all use of eminent domain for economic development. Instead, courts should experiment in precisely the way the Constitution suggests.

That document insists that government pay "just compensation" when land is taken. This doesn't have to mean the rote formula of market value that courts have adopted. Courts could suggest that compensation in economic development cases should be at 125 percent of market value rather than the now mandated 100 percent rule. Such an approach would deter municipalities from more speculative projects, and it would give greater comfort to landowners forced to leave their homes.

No court can ever find the perfect balance between public needs and private rights. Experimentation, however, is vital because we can expect nothing but further litigation following the 5-4 decision in which Justice Anthony Kennedy is clearly troubled by the potential reach of his decisive vote.

- Jeremy Paul, associate dean for research, University of Connecticut School of Law 

Wilhelmina Dery has lived in the same New London, Conn., house since she was born 87 years ago. Now she'll have to move because the town says it would be better to give her land to a different owner. That's the gist of a very troubling decision served up Thursday by the U.S. Supreme Court.

By a 5-4 majority, the court has greatly weakened the protection offered by the Fifth Amendment against the improper taking of private property by the government.

The government has been permitted to take private property if it had a good public use for the land, and as long as it provided adequate compensation. But the court's decision has now stretched that quite a bit. The government can take your land and turn it over to another private owner if it thinks the new owner's use will provide a better public benefit. If it will, for example, create new tax revenue. ...

"The specter of condemnation hangs over all property," said Justice Sandra Day O'Connor in a compelling dissent. "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory." ... The majority advised property owners to urge their state legislatures to set limits on the power to take private property. That's laughable advice. The Bill of Rights was crafted precisely to protect individuals from the power of the state. The court now advises individuals to go hat in hand to the state, to ask politely for protection from its considerable power.

-Editorial, Chicago Tribune

It's hard to take satisfaction in the Supreme Court's decision Thursday in the case of Kelo vs. City of New London - the result of which is quite unjust. Yet the court's decision was correct. ...

The trouble is that there is no good way to distinguish New London's use of eminent domain from assertions of the power that local governments depend on all the time for worthy projects. Railroads, stadiums, inner-city redevelopment plans and land reform efforts all have involved taking land from one owner for the apparently private use of another. As Justice John Paul Stevens noted for a five-justice majority of the court, the justices' response has long been to avoid "rigid formulas and intrusive scrutiny" of legislative determinations "in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power."

This is not to say that a "public use" is anything government says it is. If the supposed public use were plainly a pretext for a simple private-sector land transfer, the court would presumably step in. But that is not the case here. New London's plan, whatever its flaws, is intended to help develop a city that has been in economic decline for many years. City authorities may be wrong in their judgment that their plans are a good way to revitalize the town. But the Fifth Amendment's takings clause was never meant to ensure good judgment or wise policy. Indeed, it was intended less as a restraint on the substance of what government does than as a guarantee that it will pay reasonably. However unfortunate New London's plans may prove, stopping the city based on a standardless judicial inquiry into how "public" its purpose really is would be far worse.

-Editorial, Washington Post 

Thanks to the U.S. Supreme Court's ruling on the power of eminent domain Thursday, this valuable tool for redevelopment will still be available to state and local governments.

The renewal of downtown Des Moines might not have happened in the '70s, and it would not be possible today, if owners of property in the way of development refused to sell. Yet, an absolutist on property rights would argue that unless it is for a highway, school or some other "public use," the Constitution forbids the government from taking property from one owner and selling it to another. ..

It is frightening to think the government could take your home (even if it pays market value) to make room for, say, a big-box retail store. Yet, a hard-and-fast rule that prohibits condemnation for economic development would stifle renewal of struggling communities.

The court wisely resisted writing such a rule. That leaves the job of defining the scope of condemnation actions to state and local government decision-makers, who must face public wrath if they take condemnation powers too far.

The good of the individual must yield to the good of the community, as defined by government officials. That's now the law of the land, and expect its impact to be felt widely.

In Kelo vs. City of New London, the Supreme Court ruled 5-4 that eminent domain - the power to take property by force, upon "just" compensation to the owner - was justified for almost any reason. The Fifth Amendment allows it only for public uses, i.e., which has long been interpreted to mean major public uses such as a highway or dam, but the majority overruled that "outdated" notion. They cited a case stating that the "court long ago rejected any literal requirement that condemned property be put into use for the general public."

I keep forgetting that the Constitution is a living and breathing document, so its words don't really mean what they seem to mean. Justice John Paul Stevens, writing for the majority, has a far more "enlightened" vision of the Fifth Amendment than the one held by the founders. It's OK to take property by force and give it to a private developer as long as the city created a "carefully considered" development.

-Steven Greenhut, Orange County Register 

What's left of the Constitution's protection of private property rights? Not much ...

The [Fort Trumbull development] plan was prepared by the New London Development Corp., a private, unelected body to which the city delegated its condemnation powers. A former head of that body, Claire Gaudiani, once justified its actions with the callous remark, "Anything that's working in our great nation is working because somebody left skin on the sidewalk."

Combine that not untypical arrogance with the court's decision, and nobody's property is safe.

- Editorial, Rocky Mountain News 

As President Bush considers who should replace Sandra Day O'Connor on the US Supreme Court, Paul Reynolds reflects on the unpredictability of judges, once they are ensconced on the nation's highest legal body.

Among the trivia I have collected over the years is a plain white sheet of cardboard with the words "H-1 Reserved (do not remove)" written on it.  In 2000, it fell to the Supreme Court to determine the poll result

It marked my seat in the US Supreme Court on 11 December 2000 when the nine justices heard oral arguments in a case listed simply as Bush v Gore. The case would determine the presidency of the United States for the next four years at least.

The arguments, of course, were about whether the election result in Florida could be subject to a recount.

The verbal combat lasted for just an hour and a half, a period of concentrated point-scoring between eight of the justices and the lawyers representing Vice-President Al Gore and Governor George W Bush.

At the end of it, I felt free to ignore the instruction on the card and take it with me, feeling privileged to have been in the inner sanctum of the US judicial and political system at such a time.

Next day, the court ruled from the Greek-style temple it occupies near Congress on Capitol Hill that the recount could not go ahead. Different methods of recounting (those hanging and pregnant chads etc), it said, would violate the Fourteenth Amendment to the Constitution, which guarantees equal treatment for all.

And there was no time, it further ruled, for a uniform method to be devised. So Governor Bush became President Bush.  Republicans rejoiced. Democrats complained that the court had taken a political stance, a reflection of its conservative majority.

Either way, it was a demonstration of the power of the Supreme Court as the final arbiter of US law and justice.

'Let him enforce'

In the British parliamentary system, it is parliament that has the final say.  In the United States, the court itself can strike down a law, a right it had to acquire for itself by practice early on as the provision is not actually in the constitution itself.

It has only occasionally been ignored - and not in recent history.

It was back in 1831 that President Andrew Jackson refused to obey a ruling that declared the removal of the Cherokees from their homelands to be illegal. "Mr Justice Marshall has made his ruling. Now let him enforce," was his response.

Given their influence, the appointment of justices to the court is a major political event. And no wonder that the justices have to be protected. They serve for life.  All presidents tend to nominate their political or philosophical allies in order to leave a legal legacy.

It does not always work.

For a start the nominee might not get through the Senate, which has to give its approval.

President Nixon tried to appoint two Southern judges, Clemon Hainsworth and G Harold Carswell, as part of his Southern strategy to increase the influence of Republicans in the South. But the Democratic-controlled Senate rejected them.

Then, the nominee might not act quite as expected.

"He or she might go off the reservation," said Philip John Davies, Professor of American Studies at De Montfort University.  Mr Nixon did manage to appoint four justices (including Justice Rehnquist) but the court he wanted to turn into his own eventually turned on him during Watergate and ordered him to hand over the secret White House tapes.

In 1990, President George Bush senior appointed New Hampshire Judge David Souter to the US Supreme Court in the expectation that he would strengthen the conservatives.

Justice Souter in fact joined a centrist faction, which has ensured that the Rehnquist Supreme Court has not been predictable. There have been a number of 5-4 decisions and they sometimes go one way and sometimes the other.

In Bush v Gore, in which Mr Bush's son had such an interest, Justice Souter was one of the minority of four who wanted the court not to intervene.  A notable case of "going off the reservation" was that of Chief Justice Earl Warren, appointed by President Eisenhower in 1953.

"The worst damn fool mistake I ever made," Eisenhower is said to have lamented later.

Earl Warren was actually a highly political figure. He had run as Republican vice-presidential candidate with Thomas Dewey in 1948 and as governor of California had delivered the state to Eisenhower in the election of 1952.

As a reward, Eisenhower promised him the first vacancy on the Supreme Court. It happened to be that of chief justice and Warren held the president to his promise.

All about politics

Earl Warren presided over a liberal court which made a series of landmark civil rights rulings.

The most famous was Brown v Board of Education in 1954, brought by a girl named Linda Brown who had to walk a mile to a blacks-only school in Kansas while a whites-only school was much nearer.  The case overturned a Supreme Court ruling in 1896, which held that "separate but equal" facilities were legal under the Fourteenth Amendment.

Warren swept all that aside when he declared: "Separate educational facilities are inherently unequal."

The case showed how political the judgments of the Supreme Court can be. In one generation, separate can be equal. In another it is unequal. Yet the constitution is the same. It had little to do with law and a lot to do with politics.

In 1857, the court said that a slave, Dred Scott, had to be returned from a free to a slave state because blacks were not citizens. No such ruling would ever be made today.

In the 1973 abortion case, Roe v Wade, the right of a Texas woman wanting an abortion was found in her constitutional right to privacy. This ruling really just reflected current thinking in society, not anything that the 18th Century text had to say, since it said nothing on the subject.

According to Professor Davies, the Supreme Court is often used to rule on problems avoided by Congress.

"In the American system where power is divided, members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve - segregation, abortion, capital punishment for example."

He added that it was once the practice to appoint political figures to the court. "They would have taken a law degree as kiddiwinks," he remarked, "but they were really politicians. Now they tend to be judges with good records. And they tend to be loyal to the law itself and not be swayed by the politics.

"That is why the president cannot always depend on them." 

WASHINGTON - The last time Ralph G. Neas and C. Boyden Gray went head to head as commanding generals in a war over a Supreme Court confirmation was in 1991, when Clarence Thomas was the nominee. Now, with the resignation of Justice Sandra Day O'Connor, they are adversaries again.

Mr. Gray, who was White House counsel for President George Bush, won the Thomas battle.

But by all accounts, Mr. Neas had the superior operation: a unified battalion of labor unions, civil rights groups, women's organizations, civil libertarians and environmentalists that had more money, more energy and more firepower than had ever been used in a Supreme Court fight. It was an expansion of the same force Mr. Neas mobilized successfully in 1987 to defeat the nomination of Robert H. Bork.

After the bruising Thomas conflict, Mr. Gray, surprised by the fervor of the opposition, vowed he would never be outgunned again.

"When I was counsel, there was nothing out there," he said in a recent interview at his law office. "We didn't have the infrastructure with Bork or Thomas. The other side existed, but this side did not."

This year, said Mr. Gray, chairman of the Committee for Justice, an organization he formed three years ago to work for the president's judicial nominees, he was mustering outside forces that would be up to the fight.

"We haven't leveled the playing field," Mr. Gray said. "But at least we're on the field and we're able to engage." There is no doubt that his side has been much fortified. Progress for America, a group with close ties to the Bush administration, has begun to spend a pledged $18 million on advertising and organizing for the confirmation battle. Christian conservatives, who are far better organized and sophisticated than they were when the first President Bush named Justice Thomas to the court, are springing into action. And Mr. Gray, like his opponent, expects to have far greater reserves of cash and armies of activists this time around.

Some familiar faces are assisting Mr. Gray, who talks regularly with the White House about judicial nominees, in the confirmation campaign. The growing clout of Christian conservatives has given him new allies. He works closely with Jay Sekulow, general counsel of the American Center for Law and Justice, a Christian conservative legal group founded by the televangelist Pat Robertson, and Leonard Leo, a top official of the conservative Federalist Society who doubles as director of Republican outreach to Catholics.

By contrast, Mr. Neas, now president of People for the American Way, is presiding over a liberal coalition that has stayed largely intact over the last 10 years, still led by the same handful of veterans.

After learning of the O'Connor resignation Friday, Mr. Neas joined Nan Aron, president of the Alliance for Justice, and representatives from three dozen groups - including the A.F.L.-C.I.O., the American Association of University Women and the Leadership Conference for Civil Rights - at a Capitol news conference to call for a "consensus nominee."

Of the two generals, he is less likely to face dissension in his ranks. His coalition has worked with the Democratic leadership in the Senate all year on appellate court nominees, and Mr. Neas himself is so closely tied to the Democrats in Congress that Senator Edward M. Kennedy once called him "the 101st senator."

The conservatives, by contrast, are looser-knit and have a more contentious relationship with Republicans in the Senate. Mr. Gray's task is to hold them together despite their divergent interests.

Progress for America, for instance, can be counted on to support President Bush's choice. "Our focus as an organization all along has been to defend the president's nominee, no matter who that person is, from attacks from liberal interest groups," said Jessica Boulanger, a spokeswoman for the organization.

But the Christian conservatives say they will back only a nominee with a clear record of subscribing to their views on abortion, gay marriage and the role of religion in public life.

Meanwhile, business groups, which have largely sat out the fights over the president's appeals court nominees, have pledged support for Mr. Gray but will make no commitment until Mr. Bush's choice for the Supreme Court is known.

As in their previous confirmation battles, both sides will rely on advertising blitzes, barrages of mail and phone calls and media campaigns to deliver their messages. But this time they will have to compete to shape public opinion in the faster, more intense world of gossipy Web sites, political blogs and 24-hour news shows. Mr. Gray will be a regular television presence, agreeing to appear exclusively on the Fox network during the confirmation process.

He founded the Committee for Justice in 2002 at the request of Karl Rove, Mr. Bush's chief political adviser, and Senator Trent Lott of Mississippi, then the Senate Republican leader, to work for the president's judicial nominees - and to expressly counter the voice and influence of Mr. Neas.

By Friday morning, Mr. Gray had convinced himself that any resignation would hold for the holiday weekend. When he got word of Justice O'Connor's plans, he left home in a flash and headed to his downtown office. Within minutes he was on the phone with allies - among them Edwin Meese III, former White House counsel and attorney general under President Ronald Reagan and now at the Heritage Foundation; former Gov. John Engler of Michigan, now president of the National Association of Manufacturers; and Mr. Sekulow.

He issued a statement imploring the left "to take a breath and resist their natural impulse toward exaggeration."

A few blocks away on M Street downtown, Mr. Neas had been in his office since 6 a.m. He had joined People for the American Way, a group founded by the Hollywood producer Norman Lear as a political antidote to the conservative Christian movement, in 2000. During the Bork and Thomas battles, he headed the Leadership Conference on Civil Rights. At 8:30 a.m., Mr. Neas called his wife, Katy, and promised that this weekend, unlike the past several when he had spent all day devising strategies to respond to various potential court nominations, they would take their 5-year-old daughter, Maria, to the zoo and to see the animated movie "Madagascar."

Then the news broke. By 10 a.m., Mr. Neas had his armies in motion. E-mail messages were sent to the bulk of the group's 750,000 members and supporters, as well as 10,000 reporters. Volunteers streamed into what the organization calls its war room, a 2,500-square-foot space in downtown Washington with 40 computers and 75 phone lines .

At seven regional offices across the country - in California, Florida, Illinois, New York and Texas - staff members were rounding up supporters to bombard the Senate and White House with e-mail messages and petitions once a nominee is announced.

For Mr. Neas, the Supreme Court is the ultimate guardian of fundamental rights, from civil rights to reproductive rights. For Mr. Gray, the Supreme Court is the final arbiter of the Constitution's enduring meaning, with no business usurping decisions better left to voters. Beyond their judicial philosophies, the leaders of the two campaigns could hardly be more different in appearance, background and temperament.

Mr. Gray, 62, is 6-foot-6 and lanky with an angular face. An heir to the Reynolds tobacco fortune, he went to Harvard, clerked for Chief Justice Earl Warren and has more than a trace of his native North Carolina in his voice.

Divorced, he has a daughter, Eliza, who is now at Harvard, and he lives most of the year alone in his elegant, orchid-filled Georgetown house, a hub of the Washington social circuit, where he is host to near-weekly fund-raisers for everything from his judicial interests to a Washington voucher program. He has faced ethics queries in the past for skirting campaign finance laws in the 1990's by using his secretary to make campaign donations to Mr. Lott and, during the first Bush administration, for meeting with oil company representatives while serving on a regulatory task force.

A partner at the traditionally Democratic law firm Wilmer Cutler Pickering Hale & Dorr, Mr. Gray is said to be Mr. Bush's top pick for ambassador to the European Union. Business associates say he has been scaling back work with clients in his law practice, easing himself off the many boards on which he sits and making frequent trips to the State Department.

Mr. Neas, 59, is 5-foot-9 and compact, constantly in motion. He grew up outside Boston, graduated from Notre Dame and the University of Chicago Law School and cut his political teeth in the civil rights movement.

He was 42 when he married and did not become a father until he was 54. His family now lives in a three-bedroom home in Bethesda, Md., that he says is "almost large enough to take care of the three of us with room for a grandparent or two."

Paradoxically, both men switched parties well into adulthood.

Mr. Gray was a Democrat until 1978, when he became a Republican because, he says, he opposed the Carter administration's economic policies. Mr. Neas was a Republican and worked for Republican senators throughout the 1970's. He switched parties and ran unsuccessfully for Congress as a Democrat in 1998.

The two have not always been antagonists. In 1989, when Mr. Gray was White House counsel, they worked together on the Americans With Disabilities Act. But on the heels of that, they squared off as rivals once more on civil rights legislation.

"He's a very astute politician," Mr. Gray said of Mr. Neas. "He knows where all the pressure points are and he's a very serious adversary - or ally if you're on his side, which I have been."

Mr. Neas was more critical of his longtime opponent.

"President Bush and Trent Lott chose Boyden Gray to be the quarterback of the radical right," he said. "Boyden Gray has always been the consigliere for the Bush family and has always represented well corporate special interests, often at the expense of ordinary citizens across the country."

Westerly— While the U.S. Supreme Court recently sparked a national controversy over its decision on the Fort Trumbull eminent domain case, a land battle in Rhode Island could also have significant implications for personal property rights, legal experts say.

Local resident Anthony Palazzolo has been suing Rhode Island since 1988 for denying him several applications to fill wetlands on 18 acres he owns on Winnapaug Pond. Palazzolo, who has controlled the land since 1959, argues that the state's refusal to grant him permits to fill the wetlands on his property so he can develop it amounts to a taking of his land.

Palazzolo's lawsuit rests on the same constitutional grounds on which Susette Kelo and other Fort Trumbull homeowners sued New London: the Fifth Amendment prohibition on taking private property for public use without just compensation. But instead of taking the land by eminent domain for economic redevelopment, Rhode Island is claiming the public owns the portion of Palazzolo's property that is underwater, about half of the 18 acres.

Last week Washington County Superior Court Judge Edwin C. Gale agreed, ruling in favor of the state on all major points. Both sides in the case say the ruling is significant.  Gale's opinion gives the state tremendous powers to prohibit a landowner from doing what he wants with his property within the bounds of what is allowable under local zoning laws, said Palazzolo's attorney, Michael Malamut of the New England Legal Foundation.

Brian Goldman, legal counsel to the state's Coastal Resources Management Council and one of two attorneys representing the state, disagrees. The ruling validates the state's environmental regulations and protects sensitive habitats from overzealous development, he said.  Gale's ruling gives no compensation to Palazzolo, who was seeking $3.15 million from the state for depriving him of the right to develop all 74 of the building lots approved before Palazzolo acquired the property 46 years ago.

Palazzolo might appeal the case to the Rhode Island Supreme Court, but that decision hasn't been made yet, Malamut said. The case previously reached the U.S. Supreme Court, which sent it back to the state courts in 2001 after ruling that property owners can sue for takings even if they are aware of environmental regulations before buying land and even if they don't first exhaust all possibilities for trying to develop it.

Palazzolo has not been deprived of the entire value of his property, Gale said in his ruling, because one valuable upland lot is permitted for development. Nor should Palazzolo have reasonably expected to develop all 74 lots. Rhode Island's Public Trust Doctrine, which gives the public certain rights to land under tidal waters, actually means that the half of Palazzolo's property under the mean high-tide line is owned by the state, Gale found.

Further, developing the wetlands would have constituted a public nuisance because of the environmental impact it would have on Winnapaug Pond, Gale wrote. Increased nitrogen levels produced by residential septic systems, combined with the loss of the marsh located on Palazzolo's property, which filters and cleans waters that end up in the pond, “would almost certainly result in an ecological disaster to the pond,” Gale said in his ruling.

Malamut believes the decision has similarities to the New London eminent domain case.

“The legal system in general makes it very difficult for a small property owner with limited resources to fight the state. That's exactly the message” in the New London ruling, Malamut said.  Local zoning laws would have allowed Palazzolo to develop his property as he wanted, Malamut said, but the state decided to fight the development.

“It's certainly a concern for property owners how difficult it is to fight the state on a property related issue when the state has the resources available to it that it does,” he said.

Malamut believes Gale's public nuisance finding sets a dangerous precedent for all property owners. Because the judge ruled that depriving the pond of the wetlands' filtering effect constituted a public nuisance, anyone with a yard full of trees — which filter carbon dioxide from the air – should fear the ruling, he said.

“Any cutting down of any tree could be considered a public nuisance because those trees provide some public benefit,” Malamut said. “If your land in its current state is providing some public benefit and that benefit could be taken away with any type of development that ... could be considered a public nuisance,” he said.

Comparing this case to the Fort Trumbull eminent domain case is “ludicrous,” said Goldman.

“This really was just a scheme to use the takings clause to be compensated for a project that was not feasible and that, quite frankly, was a pipe dream,” Goldman said.  Goldman points to Palazzolo's applications for filling the wetlands, which did not specify an intent to pursue 74 building lots, as evidence he wasn't serious about developing them. Even if Palazzolo wanted to develop all of the lots, there would have been no way to install properly functioning septic systems, since they would have been under the water level.

“The vast majority of the impact on the pond was going to be raw sewage of 74 houses going into the pond,” Goldman said.

The pond, as well as the connected marsh on Palazzolo's property that he wanted to fill, serves as a habitat to fish and shellfish. Palazzolo's plan to fill his wetlands for development “would basically strangle the pond,” Goldman said.

“I think what this case does is it sets a good precedent for people not being able to develop their property when it's going to have an environmental impact and be a public nuisance,” Goldman said. The court balanced the rights of property owners with the need to protect the coastal environment, he said.

“There are occasions when land owners try to push development too far,” he said.

A Shocking Assessment

...Church said that many homes in Fairfield County, the so-called Gold Coast, sell for $2 million or more, and taxes "are half of what they are in Branford. That is because assessments are distributed more equitably across the Fairfield County towns."

Philip W. Ball is both a New Haven lawyer and an appraiser who knows the Connecticut shoreline well. After the 2002 revaluation, he worked on more than 250 appraisal cases and, separately, 100 lawsuits. He said that companies like Vision maintain their statistical models are proprietary and won't reveal their workings, even to town insiders.