• News...some good news for a change?  Click here!
  
• The beginning and the end - has anyone learned from this?
• Master Planning old and newer...
• Redevelopment problems in areas other than Ms. Kelo's neighborhood?  Latest (2010) possibility for Fort Trumbull...
  
• Eminent domain reverse chronology ("Kelo");
• CT Legislature on  "taking issue"...
• Urban Renewal...for a few dollars more and more and more;
  
• Property Tax;
• Zoning & Subdivision matters...
• Affordable housing...background;
• Visual issues here...
• "The specter of condemnation hangs over all property," O'Connor wrote. "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"...eminent domain case decision (5-4) by U.S. Supreme Court (Kelo v. City of New London)!  Type in "kelo" in search box.
  
• First demo; another example of redevelopment in New London.
• Reaction to Kelo decision in Norwalk...
  

2 N.Y. men buy Capitol Theater for $20,000, then pay it a first visit; 

SURPRISE!!!
New London's Briarcliff project gets $4.6 million for renovations:

New London - Wade A. Hyslop Jr.'s first order of business after being elected the 121st mayor of the city Monday night was to replace the blue-and-white novelty license plate the mayor gets to put on his car.

”Blue and white is Waterford,'' said Hyslop as he held up the new plate that read “City of New London Mayor” - this one sporting New London High School green and gold.

”Whaler pride!'' Hyslop shouted.

Hyslop replaces Kevin J. Cavanagh, who served one year as mayor, which is largely a ceremonial position. Councilor John J. Maynard was selected as deputy mayor.  Hyslop, a 14-year veteran of the state legislature, retired from state politics in 2004 and then decided he had more to give. So he ran for City Council in 2007, and won.

Although he is not the first black mayor of the city - Leo Jackson achieved that honor in 1979 - Hyslop says it is important to him to be recognized by his peers and to be mayor of his hometown while Barack Obama is president.

In 1968, Robert Kennedy said that in 40 years the United States could have a Negro president, Hyslop reminded the audience.

”We have arrived,'' he said to a cheering gallery that filled the council benches and rows of folding chairs brought out for the occasion. “It's important for people out there to know that there are people here who can represent everybody.''  When people see others who look like themselves in positions of power, it gives them hope, he added.

”We've seen many people who have gotten involved in the past presidential election,” Hyslop said. “We want to keep them involved.''

After introducing family and friends, Hyslop ordered the meeting to reconvene on Wednesday instead of tonight so that people can attend New London's state playoff football game against Montville.

”There are a lot of people who would like to support our team,'' said Hyslop, who is a 1963 NLHS graduate.

”New London has arrived,'' he told the crowd. “We're not turning a corner, we're on a straightaway.”

Those attending Monday's ceremony included Hyslop's six sisters, assorted nieces and nephews, members of Trinity Missionary Baptist Church, where he is pastor, and political friends from near and far who have stayed in touch, including Attorney General Richard Blumenthal, and Democratic state Reps. Linda Orange of Colchester and Ernest Hewett of New London, as well as Sen. Andrea Stillman of Waterford. Seven former New London mayors were also in attendance.

Secretary of the State Susan Bysiewicz, who served in the legislature with Hyslop, administered the oath of office.

”There's no one better to be a spiritual leader and a government leader,'' she said. “I know you will bring integrity and humility to the office.''

Hyslop counts former mayors Jackson, Jane Glover and Eunice Waller among those who have mentored him through his political career.  Glover, who ran all seven of Hyslop's state campaigns, first came to know Hyslop when he was appointed to fill a vacancy on the city's Board of Education. Glover had wanted the appointment.

”I said, 'Who is this Rev. Hyslop?' '' Glover recalled. “I wanted to go to his house and tell him off.”

But Glover didn't do that and, in time, the two became friends. Together they founded the Kente Cultural Center in New London, where Glover is executive director.

”We laughed about it later,'' she said. “He's always been friendly. He never even knew I was mad until I told him.''

And that, said Glover, is what has made Hyslop an effective politician.

”He's not bullheaded or anything like that. It's not 'my way or the highway,' '' she said.

When Hyslop left the 39th District seat, he was deputy speaker of the House. But his rise to the leadership position took a rather untraditional route.

His political career began as a city selectman - a position that had no power and no duties. He was then appointed to the Board of Education and elected to a full-term. He was tapped almost immediately in 1990 to run for state representative.

His campaign was a grassroots one that took on the Democratic Town Committee and relied on people who had little or no political experience. He challenged Margaret Mary Curtin, now a fellow councilor, who was the Town Committee's candidate, to a primary. There were door-to-door bilingual voter registration drives and a focus on low-income housing complexes that had traditionally been ignored by politicians.  Hyslop won overwhelmingly in the primary, and the election. Voters sent him back to Hartford six more times.

”I've always tried to be a role model,'' he said. “I always tell people you don't know who's watching you at any given time. You should always do the best you can do.”

He said he enjoyed working in Hartford and hopes he can use his experience at the local level.

”I hope I'll be able to provide some insight in how we can best focus on the needs of New London,'' he said. “I'd like to lend my experience to the city, and I hope to be somewhat useful in my quest to help.''

SHIP AHOY!
Sign that "Great Recession" is loosening its grip in 2010?

Harper's index, the rapid-fire compendium of the absurd, the scandalous and the all too dismal published each month by Harper's Magazine, has found friendly fodder in New London and Fort Trumbull.

For those unfamiliar with the Index, consider this sample from the current issue, November 2005:

Rank of the FBI among ideal employers, according to U.S. undergraduates, polled in spring 2004: 138.

Its rank in spring 2005: 10.

The Harper's Index source was Universum Communications of Philadelphia, a research firm for employers.

Then, there's this one, also in the new issue of Harper's:

Years that property owners in New London, Connecticut, spent fighting the city's seizure of their land: 5.

Minimum back rent that the city, after winning in the Supreme Court, is now intending to charge them: $951,718.

The source for the staggering back-rent figure was Waller, Smith & Palmer, P.C., the New London law firm doing legal work for the New London Development Corp. (NLDC), the city's development agent.

Exacting nearly $1 million in back rent from the six beleaguered property owners at Fort Trumbull trying to stave off the city's use of eminent domain to seize their property is not terribly unlike the protocols of the “Ministry of Information Retrieval” in the 1985 film “Brazil.”

In the film, a cult favorite, the ministry “retrieves” information from citizens by torture, and then charges the victims for the cost of their detention as well as for “procedures” deployed in their interrogation. Should the tortured expire during the retrieval process, their survivors are billed for the expenses.

Fort Trumbull property owners, assures Thomas Londregan, attorney for the City of New London, are under no such punitive gun, though he concedes the $951,718 is fairly accurate.

Last summer, the U.S. Supreme Court decided, 5-4, in favor of the city and the NLDC using eminent domain to take the properties as part of the transformation (and ensuing tax rolls enhancement) of the time-worn neighborhood near Shaw's Cove. The property owners had been fighting the loss of the homes.

“The plaintiffs have been living rent-free and tax-free for over five years, and at the state taxpayers' expense” says Londregan. “I don't know how many people get to live rent-free.”

That said, however, Londregan insists no action has been taken to collect that back rent.

“We are in a period of negotiations, and you don't throw bombs,” says Londregan. “You don't make claims, you don't start lawsuits. The City of New London wants the negotiations to go forward in good faith.”

The NLDC, however, which has been grappling in a power struggle and an object lesson in etiquette with the New London City Council, does throw bombs, or, at least, gut punches. After the Supreme Court decision, and the convulsive opposition to it throughout the land, the state, with a substantial financial stake in the Fort Trumbull project, asked the city to cool it while the politicians bowed and scraped to public hysteria. Nevertheless, the NLDC sent out relocation notices –– the first step in an eviction –– to three of the property owners.

The state fumed and ordered them rescinded. Notices of back rents also were dispatched by the NLDC, says Londregan.

One of the property owners suggests the back-rent threat is a tactic to coax the Fort Trumbull holdouts to give up the fight. “If we go, the idea is they'll waive the back rent,” says Matt Dery, with a wary grin and shrug.

Negotiations, as Londregan says, progress. Collecting five years' back rent at Fort Trumbull, as the Harper's Index reports, just bombs.

To the surprise of very few, Bill Cornish, the former city councilor and persistent critic of city government, has helped organize a new political party in New London called One New London Party. Its origin lies in the level of frustration felt by city residents at the confluence of sharply rising taxes and continuing destruction of tax-paying property.

The rising taxes are a result of the city having a tiny geographical area, a huge amount of tax-exempt property and a heavy reliance on the property tax to pay for local budgets.

But the destruction of taxable property is a different matter. The purpose was to try to increase the city's tax base, but it hasn't worked that way. City Manager Richard Brown estimates the city has lost about $1 million in taxes over several years because of demolition in Fort Trumbull.

Two of the mass demolitions — one in Fort Trumbull and the other near Adm. Harold E. Shear State Pier — nominally bear the name of New London Development Corp. and the city of New London. But it was the Rowland administration's co-chief of staff, the now-indicted Peter Ellef, and the state Department of Economic and Community Development that pressed for major projects within New London and in other Democratic strongholds in Connecticut. And they controlled them tightly.

One of Ellef's grand plans was to revive the port of New London and State Pier. This was a good idea, but it has not materialized. Ellef sought to attract a Chinese appliance firm that would bring its products through this port and would have an assembly plant at the pier. On one trip to China, Ellef brought along none other than William Tomasso, the Rowland administration benefactor who got favored treatment on several large multimillion-dollar state contracts. Tomasso, whom Ellef allegedly indentified as Rowland's personal representative in China, later was indicted by the United States attorney, along with Ellef, for alleged corruption on state contracts.

The China connection for New London never worked out, but that was after more than a dozen homes were destroyed in the state pier area to make room for this future project. There even was the oft-heard report that the Rowland administration cleared the houses in an accelerated fashion to provide parking and to handle the huge crowds expected at the OpSail 2000 extravaganza.

Since then, the state has constructed a warehouse for Logistec, the pier operator.

In Fort Trumbull, the Rowland idea was to take a run-down neighborhood and revive it with new condominiums, offices, research laboratories and a hotel that would seize on opportunities created by the adjacent Pfizer Global Research & Development headquarters. Pfizer officials now understandably are eager to say that the Fort Trumbull takings were not intended to benefit their business. But Claire L. Gaudiani, the former NLDC president, so many times stood alongside George Milne, then the vice president in charge of research in Groton, that the two projects merged in the public mind. The more Gaudiani touted the concept, the more she mentioned Pfizer. It was necessary, she said, to complete Fort Trumbull “on Pfizer time.”

The idea to improve vastly the tax base in Fort Trumbull had appealing elements and coincided with the Rowland strategy to help the cities, a worthy goal. But a secondary motive of the Rowland political people may have been to cut into the Democratic votes in the cities by showing the Republican Rowland administration was a friend of urban enterprise. Significantly, one contractor hired by NLDC turned out to be the Downes Corp., a New Britain company headed by relatives of former GOP State Chairman J. Brian Gaffney. Gaffney is also the scion of a prominent lobbying firm, Gaffney and Bennett, in which a co-principal was Jay Malcynsky. The latter was a Rowland buddy and powerful lobbyist.

As the project moved along, the relationship between the NLDC and the city became virtual open warfare. But in spite of their enmity towards one another, the city and NLDC both balked to the state that it (the state) was controlling almost every decision in the project. Too bad, said the Rowland administration. If you want the tens of millions of dollars being sent to New London, you'll do as we say.

The state insisted publicly and officially that everything was ultimately the City Council's decision, but there was no room for argument. The Rowland administration's attitude, was: Do as you're told or we'll shut off the spigot.

It was this heavy-handed pressure that in part created the image of the NLDC as an arrogant organization. But the most significant problem was the Rowland administration's attempt to do local planning from Hartford.

The attitude was that the city of New London was inept and could not make good things happen. Turns out that central planning at the Capitol in Hartford, as in the case of the Soviet central planning agency, didn't work either.

Progressive judges protect those who cannot protect themselves in the political process. For example, the Warren Court expanded the rights of the criminal accused and struck down laws persecuting blacks. This tendency to protect our most vulnerable citizens belies the conservative caricature of progressives as wantonly willing to sacrifice individual rights to the whims of "big government." But in the recent Supreme Court case of Kelo vs. New London, the more progressive justices ignored their role as tribunes of the powerless and provided fodder to those who claim they reflexively endorse government power.

New London exercised its authority of eminent domain to seize the homes of ordinary citizens - not for a traditional use such as a highway or railroad, but to transfer the land to private developers. How could five Supreme Court justices (including the supposed progressives) uphold this unconscionable action?

The Fifth Amendment of the Constitution gives government power to take possession of private property needed for a "public use" (provided it give "just compensation" to the owner). However, today states and municipalities routinely use this power to transfer property to private parties, claiming that doing so confers a constitutionally adequate public benefit. Even before Kelo, the Supreme Court approved this practice.

To a limited extent, this can make sense - land may serve a legitimate public purpose even in the hands of a private party. Imagine that land abutting a dangerously overcrowded private hospital, the only health care facility in a community, is taken by the government to expand the hospital. This exercise of eminent domain serves a crucial public purpose that might otherwise be neglected.

But it does not follow that most uses of eminent domain to transfer property to a private party are acceptable. A transfer should never be used solely as a means to redistribute wealth - to take from X to give to Y because the government favors Y. Moreover, it makes some difference whose land is taken. For example, seizing a multi-generation family farm is different from seizing an apartment building leased for profit.

These distinctions have been ignored by the courts for some time, culminating in the egregious Kelo decision. The courts have swept aside virtually any objection to any exercise of eminent domain, essentially holding that "public use" is whatever the government says it is, and tough luck for those booted from their homes and communities.

To be sure, the Supreme Court has said that a "purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void." But this assurance is empty, because the government can always concoct an ostensible public purpose. When municipalities hand land to businesses or developers, they predict increased employment and tax revenue that will serve the community. But if this prediction proves wrong, there is no recourse for those who lost their homes. Moreover, there are invariably alternative measures to spur the economy other than evicting innocent people, such as finding other sites for development or offering loans and public works programs.

As Justice Sandra Day O'Connor stressed in her dissent, Kelo leaves no American secure. Any house can be seized by government and turned over to Wal-Mart, Motel 6 or any business that promises to create jobs or tax revenue. As O'Connor noted, such transfers inevitably reward those with "disproportionate influence and power in the political process, including large corporations and development firms."

Ironically, her dissent was joined by Justices Antonin Scalia, Clarence Thomas and William H. Rehnquist, who often close their eyes to corporate control of American politics and economics. We can only guess how the progressive justices felt to be lectured by their conservative brethren about kowtowing to the powerful and trampling the rights of ordinary citizens, but this much is clear: In Kelo, the conservatives on the court were correct.

The situation is not hopeless. Many states have a "takings clause" (or other means of safeguarding private property from government) in their own constitutions, and state judges are the ultimate interpreters of their constitutions. And state legislatures may enact new protections. Both judges and legislators should do what the U.S. Supreme Court manifestly failed to do: protect their politically powerless citizens from government abuse.

Fight Against Fort Trumbull Ruling Not Over Yet, Says Kelo;  City moves ahead with development
By KATE MORAN
Day Staff Writer, New London & TED MANN
Published on 6/25/2005

New London — Susette Kelo held out hope Friday that the city would retreat from its efforts to take her pink cottage on East Street by eminent domain and allow her and her neighbors to remain alongside the development of offices, housing and a hotel planned for Fort Trumbull.

Absent a change of heart by the city, she was prepared to resort to civil disobedience. The city might have the right to take her house, she said, but she can refuse to go gently.

One day after the U.S. Supreme Court ruled that New London can seize 15 houses on the Fort Trumbull peninsula to pursue economic development, Kelo and her attorneys at the Institute for Justice promised they would continue to fight what they consider an unjust seizure of private property.

“Can you see them carrying 87-year-old Mrs. Dery out of her home?” Kelo asked, referring to her neighbor, Wilhelmina Dery, who has lived in her house since 1918.

Meanwhile, city officials were optimistic that the ruling in their favor would jumpstart a project designed to revive the city's flagging economy and increase tax revenue, which the city desperately needs. They were focused in particular on bringing the Coast Guard research and development center, now located at Avery Point in Groton, to an existing building on the Fort Trumbull peninsula. While that building was never involved in the eminent domain lawsuit, the city has long contended that the legal battle created an air of controversy that has prevented the development from coming to fruition.

“I think the thing to focus on is getting the development in place,” City Councilor Rob Pero said. “Everything that happened (Thursday) won't be meaningful unless the development happens.”

Corcoran Jennison, the Boston company selected to redevelop Fort Trumbull, is now negotiating a contract with the federal government for hosting the Coast Guard research center. The company also is completing site plans for the hotel and housing, which it must present to the city's Planning and Zoning Commission by July 15.

Marty Jones, president of Corcoran Jennison, called the court's decision a victory not only for the New London redevelopment but also for cities around the country that are trying to incubate business development.

“I think it's a great win,” Jones said. “There's certainly been a lot of interest in this nationwide, and it makes clear what the legal authority of cities is to do this kind of work. I certainly hope that now that this contentious issue has gone literally to the highest court in the land, people can focus on trying to come together and support economic development and some positive things that really do need to happen in the city.”

City councilors expressed doubt as recently as the fall that plans for Fort Trumbull were still viable in the current economy, which has undergone significant changes since the plans were approved in 2000. Councilors, who underwent mediation with the city's partner, the New London Development Corp., this winter, are now expressing solidarity with the agency and support for its plans, even as the recent announcement that the Naval Submarine Base in Groton will close has thrown a veil of uncertainty over the entire region.

Another piece of the puzzle still unresolved is the proposed Coast Guard museum, originally slated to be built on one of the disputed properties, known as Parcel 4A. While those properties were still locked in a legal battle, city business leaders arranged to have the facility placed on one of the areas already cleared by the NLDC.

With the legal obstacles seemingly removed, some said there was a chance the museum could go forward on the original parcel.

“It certainly clears the way for the Coast Guard museum to go on Parcel 4A, which is what they really want, and hopefully it will go forward,” said Alva Greenberg, who helped organize a task force late last year to reinforce the city's commitment to hosting the museum. She and others said the final decision on locating the museum will fall to the NLDC and a Coast Guard committee in the coming weeks.

Scott Bullock, the Institute for Justice attorney who represented the property owners, said Friday that his law firm would continue to fight to keep the residents in their homes, despite the unfavorable court decision. He said sympathetic phone calls and e-mails poured into his office all day from citizens enraged that the government can seize their property for private economic development.

“People are furious throughout the country. We are confident that this is going to lead to change in Connecticut and throughout the country,” Bullock said by e-mail. “This could very well turn out to be the high-water mark of eminent domain abuse in this country.”

“I personally have had no less than a dozen calls and e-mails from people wanting to encircle Susette's home and keep it safe from the bulldozers,” added John Kramer, an Institute for Justice spokesman, in an e-mail message.

The Institute for Justice has 24 days to ask the court to reconsider its opinion, though only in rare cases does the court choose to do so. Kelo and the other homeowners can also ask New London Superior Court for higher compensation for their property, though Kelo said Friday that the fight was not about the money for her.

Instead, she hoped the City Council would intervene and allow her to stay put.

“Somebody has to say enough is enough,” she said.

Seizure of homes ruled legal;  Court expands scope of eminent domain
CT POST STAFF AND WIRE REPORTS 6-24-05

WASHINGTON — A divided Supreme Court ruled Thursday that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth often is at war with individual property rights.
The 5-4 ruling stems from a New London, Conn., case in which Susette Kelo and several other homeowners in a working-class neighborhood filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices.

"It's a scary decision because it really broadens the public-use doctrine," said Raymond Rizio, a Fairfield, Conn., lawyer who has handled cases on both sides of the issue. "It's no longer just a clear public use, but for anything they believe will be an economic benefit.

"A municipality does not have to be as cautious in their reasons for seizing a property," he said. "It can also control who the buyer will be."

Rizio also believes the ruling will limit the issues that a party fighting eminent domain can raise in a lawsuit.

But he thinks the ruling may lead to more involvement by the public in the political process.

"Taking a property by eminent domain still has to go through several boards," he said. "So there still must be public input and awareness." Bridgeport, Conn., in recent years has used eminent domain to seize the entire Steel Point peninsula, and to take land for the city-owned baseball stadium and sports arena.

Bridgeport Mayor John M. Fabrizi said the ability to take property is crucial to cities like Bridgeport.

"The power is essential for us to renew and revitalize post-industrial cities. But the powers need to be used judicially, and due process needs to be followed, and the reasons have to be for the public good," Fabrizi said.

"Municipalities can't take these powers lightly. You are weighing the rights of property owners against the public good," Fabrizi said.

Brian Calvert, an English immigrant and proprietor of Calvert Safe and Lock in Derby, Conn., is one of a dozen landowners inside a 12-acre redevelopment zone in downtown Derby where a private developer has proposed a large mixed-use housing and retail development. While Calvert hopes the developer will make him a fair offer before the city resorts to eminent domain, he reacted strongly to Thursday's Supreme Court decision.

"This is like a reverse of Robin Hood. It's a hood robin. It's taking from the poor and giving to the rich. It's a disgrace and goes against everything this country is supposed to stand for."

The decision — assailed by dissenting Justice Sandra Day O'Connor as handing "disproportionate influence and power" to the well-heeled in America — was a crushing defeat for some New London residents whose homes are slated for destruction. They had argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Writing for the court, Justice John Paul Stevens said local officials, not federal judges, know best in deciding whether a development project will benefit the community. States are within their rights to pass additional laws restricting condemnations if residents are overly burdened, he said.
"The city has carefully formulated an economic development [plan] that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue," Stevens wrote in an opinion joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

O'Connor, who has often been a key swing vote at the court, issued a stinging dissent, arguing that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

New London residents involved in the lawsuit expressed dismay and pledged to keep fighting.

"It's a little shocking to believe you can lose your home in this country," said New London resident Bill Von Winkle, who said he would refuse to leave his home even if bulldozers show up. "I won't be going anywhere — not my house. This is definitely not the last word."

Scott Bullock, an attorney for the Institute for Justice representing the families, added: "A narrow majority of the court simply got the law wrong today, and our Constitution and country will suffer as a result."

New London officials countered that the private development plans serve a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted.

"We're pleased," attorney Edward O'Connell, who represents New London Development Corporation, said in response to the ruling.

O'Connor was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

Nationwide, more than 10,000 properties were threatened or condemned in recent years, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners.

New London, a town of fewer than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs.

The New London neighborhood that will be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families. Among the New London residents in the case is a couple in their 80s who have lived in the same home for more than 50 years.
 

Eminent Domain Chronology
Published on 6/24/2005, DAY

January 2000: The Planning and Zoning Commission, Redevelopment Agency, City Council and New London Development Corp. approve the Fort Trumbull development plan.

May 8, 2000: The NLDC votes to begin taking 11 properties by eminent domain.

Sept. 5, 2000: The City Council rescinds an earlier decision that prevented the NLDC from razing buildings in Parcel 4A where the city hopes a Coast Guard museum will be built.

Sept. 20, 2000: The Coalition to Save Fort Trumbull submits a petition with more than 400 signatures to the City Council to save Fort Trumbull homes from demolition.

Oct. 2, 2000: The city law director rules that a petition asking for a referendum on Fort Trumbull demolition is invalid.

October 2000: The NLDC votes to use eminent domain to acquire the last 22 properties it needs to transform the Fort Trumbull peninsula into a maritime village.

November 2000: The NLDC offers 11 property owners, including Susette Kelo and Matthew Dery, more than $2.7 million for their properties. They reject the offers.

Dec. 19, 2000: The Institute for Justice agrees to represent more than a half dozen Fort Trumbull residents in a lawsuit against the city and NLDC.

Feb. 21, 2001: The city, NLDC and property owners reach an agreement under which the Fort Trumbull residents will be able to stay in their homes while the eminent domain case is heard in court.

March 13, 2002: Connecticut Superior Court Judge Thomas J. Corradino rules on the eminent domain lawsuit. He upholds the taking of some houses but not others.

March 18, 2002: Fort Trumbull property owners announce they will file an appeal with the state Supreme Court.

August 2002: The city and NLDC file appeal briefs asking the state Supreme Court to overturn the lower court ruling.

October 2002: City Council grants the NLDC a two-year extension of its eminent domain powers in Fort Trumbull area.

December 2002: Connecticut Supreme Court hears arguments in the eminent domain case.

March 3, 2004: The Connecticut Supreme Court affirms the NLDC's right to take property at Fort Trumbull by a vote of 4 to 3.

July 19, 2004: The Institute for Justice files an appeal with the U.S. Supreme Court.

July 30, 2004: The Michigan Supreme Court, relying solely on the state constitution, forbids the use of eminent domain for economic development.

Sept. 28, 2004: The U.S. Supreme Court agrees to hear Kelo v. New London, the case that will determine whether governments can seize private property to promote economic development.

Feb. 22, 2005: The U.S. Supreme Court hears oral arguments in Kelo v. New London.

June 23, 2005: The U.S. Supreme Court rules 5-4 that economic development is a “public use” under the Fifth Amendment of the Constitution.

The Institute for Justice had bold aspirations for the Kelo v. New London case.

Before the Supreme Court agreed to hear the case, the Institute had been battling in state courts from Ohio to Connecticut to prevent governments from using their eminent domain powers to promote economic development. Kelo gave its attorneys the chance to secure a broad federal ruling that would restrain the ability of government to take private property.

Such a ruling would have upset 50 years of precedent, however, and the court declined Thursday to impose the sort of straitjacket the Institute was seeking. But the decision still does not cripple conservative property-rights watchdogs such as the Institute for Justice and the Pacific Legal Foundation, for whom a Supreme Court victory was the ultimate prize.

It simply sends their fight back to the states.

Although the Supreme Court said Thursday that governments can use their condemnation power to foster private development, state courts can invoke their own constitutions to narrow the scope of eminent domain, as the Michigan Supreme Court did this spring. State legislatures can also modify their laws to strengthen the rights of property owners.

“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 majority. “Indeed, many states already impose public use requirements that are stricter than the federal baseline.”

Utah became the first state to do this when Gov. Jon Huntsman Jr. signed Senate Bill No. 184 into law this March. The law forbids redevelopment agencies from using eminent domain for projects such as sports arenas, and it places a one-year moratorium on blight condemnations to give the legislature time to decide how badly a property has to deteriorate before the government has the right to seize it.

State Sen. Curtis Bramble, the Republican who introduced the legislation, said support gelled after the city of Ogden tried to take three houses that were standing in the way of a Wal-Mart.

“Property rights are the rights to own, possess and enjoy property, and they are what sets America apart from most other countries,” Bramble said. “The government power to take property needs to be very limited in scope. I can't think of a circumstance where you should seize one person's private property and turn around and give to another private interest for development. To me, that's just untenable.”

Bramble said the bill encountered some resistance from mayors who believed development would stymie without the tool of eminent domain. However, he said the Utah League of Cities and Towns, while never endorsing the legislation, decided not to oppose it.

“There were some mayors who were quite exercised and rather aggressive in their opposition, but there were also many mayors and city councilors who saw how abuses of eminent domain were out of control,” Bramble said.

In Connecticut, House Minority Leader Robert Ward, R-North Branford, has waged a lonesome battle in the legislature to rein in Connecticut's eminent domain laws.

Ward proposed a ban on taking residential property for private development except in the case of blight, but his bill died without a vote. But the Republican leader saw an invitation in the court's majority opinion for states to revisit and reform their own laws, and said he would redouble those efforts when the legislature convenes again next year.

“What I ran into this year ... was a statement that we shouldn't take any action until after the court reviews it,” Ward said. “I argued that we should provide our citizens with rights whether or not the Supreme Court was prepared to. But now that we know the Supreme Court will not give private homeowners this level of protection, the legislature should.”

While no state other than Utah has imposed a wholesale ban on using eminent domain for private development, some states have found ways to shore up the rights of property owners without depriving government of a powerful tool for promoting growth.

The Virginia legislature passed a law this year that helps property owners push for higher compensation when their land is taken by eminent domain. If a jury awards an owner at least 30 percent more than the price offered by a development authority, the owner is entitled under the new law to recoup appraisal fees for his property and the cost of bringing up to three expert witnesses to court.

In Missouri, a Republican state representative introduced a bill this spring that would have allowed property owners to hire his own appraisers when the government tried to take their land through eminent domain. If the owner and the government could not agree on a price, the bill, which died in committee, would have introduced a panel of three disinterested commissioners, including a county assessor, to set a dollar value.

Steve Hobbs, the legislator who introduced the bill, said by cell phone from the fields of his 600-acre farm that he understood the need to balance business development with the rights of owners to reap the value of their land.

“In state of Missouri, we've had some tremendous abuses by municipalities who make blight definitions that are just terrible,” Hobbs said. “We've had areas in Kansas City that were declared blighted 15 years before any development was done on that property. Can you imagine what that does to the property values in those areas? I'm a big fan of economic development, but we have to protect people's rights.”

Timothy Hollister, a land-use attorney with the Hartford firm Shipman and Goodwin who organized a forum on Kelo this winter, said the case put property rights in the national spotlight even if it did not result in a victory for the homeowners.

“Regardless of how the case has now come out, its legacy has already been to start a national debate about the fairness of eminent domain” Hollister said Thursday. “The Supreme Court was interpreting the federal Constitution, but every state is still allowed to be more protective of property rights. If Kelo had risen in Michigan, it would have come out the other way.” 

"Eminent domain should only be used as a last resort in urban renewal projects, and it should be used as the result of a plan that has been fully vetted with the community, and where there's an agreed-upon consensus as how to implement the plan," said Timothy T. Sheehan, Norwalk Redevelopment Agency executive director.

"I believe that's exactly what happened in New London." The high court decision comes as Norwalk pushes forward with urban renewal projects for Wall Street, Reed-Putnam and West Avenue. Each could -- or in one case has -- involved an eminent domain battle with the city. "(The New London decision) has to help the West Avenue proposal," said Frank N. Zullo, former Norwalk Mayor, and land-use attorney representing Stanley M. Seligson, the local developer seeking to redevelop West Avenue. "Economic growth outweighed the property owner rights," said Zullo, referring to the New London decision.

"The primary motive is for the city to benefit -- you have to be boosting the economy for the city and addressing an area that needs attention. (But) the fact that a developer is also reaping some economic benefit doesn't make the process fatal." For years, Seligson has sought to redevelop West Avenue with retail and housing. The Redevelopment Agency, after public hearings last winter, cut Seligson's plan by 20 percent. Also reduced is the number of potential property takings, particularly of homes on Orchard Street. At the same time, the Redevelopment Agency is moving away from a municipal development plan toward a redevelopment plan for West Avenue.

Susan Schweitzer, economic development project manager at the agency, said Norwalk has relied on redevelopment plans, which require a Common Council finding of blight. By contrast, the New London case rested on a municipal development plan, where economic development is key. "A place that is blighted is obvious to everyone. The municipal development plan is not so clear. ... Who defines economic development?" Schweitzer asked. "In addition to it being a simpler approval process and a straightforward finding of blight, (a redevelopment plan) is an easier tool to use."

Meanwhile, the eminent domain battle between the city and Maritime Motors Chevrolet remains pending before the Connecticut Supreme Court. The city has successfully argued before two lower courts that it needs the West Avenue car dealership and a nearby storage lot to complete its Reed-Putnam Urban Renewal project -- up to 1.1 million square feet of office space between Interstate 95 and the Norwalk River.

Mayor Alex Knopp said municipalities should exercise their power of eminent domain rarely and carefully. He said the U.S. Supreme Court reached the correct decision in the New London case. Knopp expressed hope that the state Supreme Court soon will hear the Maritime Motors case. "It's very important to municipalities all over the country that the ability to utilize eminent domain for important and legitimate public uses be protected," Knopp said.

"My impression is that the Connecticut Supreme Court deferred to the U.S. Supreme Court when it postponed ... the Maritime Motors case. I hope that the court will now take up that matter."

Representing Maritime Motors is attorney Michael S. Taylor of the Horton, Shield & Knox, the Hartford law firm that represented the city of New London. He distinguished between the Norwalk and New London cases. "Maritime Motors is totally about blight, whether you need a new finding of blight, whether you need to integrate" the car dealership, Taylor said. "None of this has anything to do with (the New London case)."

Sheehan also pointed to differences. He said the New London case involved "contesting the actual takings," whereas Maritime Motors is contesting several points. For instance, should the city have integrated the car dealership into its redevelopment plan, and was a renewed finding of blight necessary?

For Leigh Grant, president of the Norwalk Association of Silvermine Homeowners and Planning Commission member, the question of blight is relative when one compares one area of a community to another. She said blight doesn't necessarily mean that "buildings are falling down." Grant said cities develop plans for their futures, and that "sometimes the plans are done for the right reasons, and sometimes they're done for the wrong reasons."

She said the New London decision offends her "sense of property rights."

"This opens the door to taking land from private owners and giving it to speculators who have sold you on their plan, which is not always the best plan," Grant said. "The way to avoid that is to have as open a process as possible, and let everybody look at it and air it and come up with better ideas where the ideas."

The rights of resident property owners weighed against possible future commercial redevelopment in Kelo
Handicapping The Kelo Case Is A Difficult Call;  Supreme Court ruling in New London eminent domain case could come tomorrow
By KATE MORAN
Day Staff Writer, New London
Published on 6/12/2005

New London — Attorneys on opposing sides of the Kelo v. New London case dispersed onto the plaza outside the U.S. Supreme Court immediately after oral arguments ended Feb. 22 to take questions from reporters on the proceedings in the most important property rights case in two decades.

Inside the court, the justices were hearing arguments in a second property rights dispute, Lingle v. Chevron, a sleeper of a case that was eclipsed in the media by Kelo but which will have profound effects on the way government can regulate private property.

At issue in Lingle was whether courts can toss out regulations they deem to be bad law — not law that is simply unfair but law too poorly conceived or crafted to accomplish its objective. If the justices had allowed courts to meddle in lawmaking in such a way, they would have touched off a flurry of challenges to laws that regulate land use, enact rent caps and protect the environment.

But the court took a hands-off approach with its unanimous decision on May 23 that the judiciary should let the legislatures conclude whether a particular regulation will be effective. The ruling, possibly a harbinger of what will happen in Kelo, was a disappointment to conservative groups who would limit the government's ability to decide how individuals can use private property.

Attorneys in Connecticut who have followed both cases were hesitant to predict what Lingle might mean for the outcome of Kelo, which should be decided by the court on a Monday in June. But they said the decision does not contain much good news for the homeowners who are trying to prevent New London from taking their property by eminent domain to make way for offices.

The best the homeowners can hope for, attorneys said, is that the Lingle ruling is a neutral indicator of what might happen in the Kelo case.

“It's very hard to read the tea leaves. To predict what's going to happen based on what the court said in Lingle would be risky,” said Michael Shea of the firm Day Berry and Howard, who wrote an amicus brief in the Kelo case for the Connecticut Conference of Municipalities. “Having made that disclaimer, I'd say as somebody who supports the city that we were pleased by the decision in Lingle and what it says about the standard of review the court is going to use for takings claims.”

The Lingle case arose after the Hawaii legislature passed a law in 1997 that capped the amount oil companies could charge dealers who rented retail gas stations from them. The state's isolation meant competition was limited, and the legislature hoped that the rental caps would help to deflate the price of gas for consumers.

Chevron, the oil company that controlled 60 percent of the market in Hawaii, sued the governor and the attorney general, claiming the rent ceiling amounted to a taking of property. The company also argued that the taking was improper because it did not advance the interest of the state. Consumers never saw a reduction in price so the law was ineffective.

The trial court and a federal circuit court sided with Chevron. In their decisions, both relied on a 1980 U.S. Supreme Court ruling that gave judges the right to examine whether a law “substantially advances” the interest of the state. When the Lingle case went to the Supreme Court this term, however, the justices used it to repudiate their earlier decision and renew the practice of deferring to legislative judgment.

Justice Sandra Day O'Connor, the author of the unanimous decision, said courts would be unduly burdened if they had to review every challenge to a regulation that limited what could be done with private property.

“If so interpreted, it would require courts to scrutinize the efficacy of a vast array of state and federal regulations — a task for which courts are not well suited,” O'Connor wrote. “Moreover, it would empower — and might often require — courts to substitute their predictive judgments for those of elected legislatures and expert agencies.”

Here is where some prognosticators believe the Lingle decision bodes poorly for the homeowners in the Kelo case. The attorney for the homeowners, Scott Bullock of the Institute for Justice, asked the court to rule that governments never have the right to seize private property to generate land for business development, even if such projects help the public by producing jobs and tax revenue. If the justices reject that argument, Bullock asked them to review whether developments have a reasonable chance of coming to fruition before courts authorize the taking of private property.

Some attorneys guessed that the court, given its history of deference in Lingle and other takings cases such as Hawaii Housing Authority v. Midkiff, would not agree to conduct that sort of review.

“The Scott Bullock arguments are eclipsed, I believe, by the powerful statement in Midkiff about deference to legislative discretion. The fact that this is reiterated in Lingle suggests a pro-government stance,” said Dwight Merriam, a Hartford land use attorney who is editing a book about the Kelo case that will be published by the American Bar Association in October.

Bullock, however, was not particularly distressed by the Lingle decision. He said the Supreme Court used a separate line of analysis than it would be using in the Kelo case. While Lingle focused on questions of compensation, he said, the Kelo case revolves around whether the jobs and taxes created by private business development are enough of a “public use” to warrants the taking of private property. He noted that the Lingle decision never mentioned the court's seminal takings cases, the 1954 case Berman v. Parker and the 1984 Midkiff case, which will doubtless play heavily in the Kelo decision.

Bullock also said the Institute for Justice is asking courts for a different sort of review than Chevron was demanding in the Lingle case. He says his law firm, based in Washington, D.C., is trying to prevent the seizure of property for developments that are purely speculative. He said some of the property owners in the Kelo case could lose their homes even though the city has only nebulous plans for the property once the houses are gone.

“What Lingle was really talking about was whether this rent control statute would be effective, whether it would do the things it claimed to do,” Bullock said. “The court said it shouldn't be making those types of judgments. We're not asking if the office park will be successful or if it will create tax revenue, but we're asking if there is some likelihood that it will come about at all.”

Matthew Berger, a New London land-use attorney, said he thought Lingle was “devastating” for Kelo after he read the decision for the first time. But in a later reading, he homed in on a paragraph in which O'Connor points out that the question in Lingle is whether the rent control regulation is effective — not whether it served a valid public purpose. The primary question in Kelo, however, is whether economic development takings serve primarily a public or private use.

“Whoever wins, people will look back and say in retrospect that Lingle foreshadowed it,” Berger said. “The emphasis on legislative deference would seem to support the city's claims in Kelo, but having read Lingle, I still don't know who will win.”

A Wilton couple's quest to add a garage and breezeway to their home has disrupted the local zoning laws that municipalities use to regulate
subdivisions, and may end up muddling efforts by towns such as Greenwich to prevent large houses from jarring street-scapes, according to land use attorneys and officials.

The couple, Guy and Colette Poirier, sought a building permit but were denied because the addition would have exceeded what is allowed under current zoning regulations. They appealed, arguing that a state law permitted them to build as much as allowed under the zoning regulations that were in effect when the subdivision in which their lot is located was approved. The Poiriers' subdivision was approved in 1954.

A state Superior Court judge initially ruled against the couple. But in an appeal of that decision, the state Appellate Court agreed with the Poiriers, and now planners, attorneys and others in the land use field are looking at how the ruling affects municipal zoning regulations.  The decision has significant bearing in Greenwich, land use attorneys and officials said. For the past four years the town has grappled with how to slow the spread of "McMansions," which some residents say ruin Greenwich's character. This year the Planning and Zoning Commission approved limiting house size by reducing bulk-control measures such as floor area ratio, or FAR, regulations.

But due to the Poirier vs. Town of Wilton Zoning Board of Appeals decision, houses in Greenwich subdivisions that were approved before the recent FAR amendments may not have to abide by those newer regulations.  "Poirier seems to say that any lot that exists prior to 1984 can be developed or expanded to limits of regulations in place at the time the subdivision was approved," said Dwight Merriam, a land use attorney with Robinson & Cole in Hartford, and former director of the American Planning Association. "So that means that any (recent) attempt by Greenwich or any municipality to limit the size of homes on lots would have no effect."

Town Planner Diane Fox said a resident seeking a building permit under these circumstances would have to provide documentation showing when the subdivision in which they live was created and the regulations that were in place at the time.  At least one resident, Rebecca Balikci of Carissa Lane, who lives in a "conservation" subdivision created in the late 1970s, said she has sought a building permit under the relaxed restrictions which the Poirier decision seems to offer to homeowners like her. She said she wants to add a guest room to her 5,000-square-foot colonial. She said she's waiting to hear from town attorneys regarding her request.

Fox said the ruling has caused a stir among her colleagues and that she has asked Town Attorney John Wetmore to review the ruling in order to ascertain its effect on local regulations.  "A lot of town attorneys are looking at it to see how widespread it is," Fox said.  Greenwich resident Alan Small, president of the Concerned Homeowners of Greenwich, which has opposed the town's FAR laws, said the court's decision was "interesting" and appeared to do "something good for people in our situation," but that he needed to research it more "to look at all its implications."

The case revolves around the wording of a single state statute, which says that "when a change is adopted in the zoning regulations . . . no lot or lots shown on a subdivision plan for residential property, which has been approved, prior to the effective date of such change . . . shall be required to conform to such change."  The statute, passed in 1959, had set a time limit during which homeowners would be exempt from zoning regulations passed after their subdivision was created.  That time limit was deleted when the statute was revised in 1984. Wilton attorneys argued that while that particular statute no longer contained a time limit, similar limits found in other state laws restricted the Poiriers from getting a building permit.

In the court's unanimous decision, it concluded that the "plain terms" of the statute give the plaintiffs a "vested right" to a zoning permit.  Donald Poland, the legislative committee chairman of the Connecticut chapter of the American Planning Association, said the practical effect of the ruling will require zoning agencies to have access to all of their previous regulations to find those governing the time period in question, since decisions in granting permits may no longer rely simply on existing rules.

But the deeper impact, Poland said, could be that it undermines in some way the efforts by Greenwich to control house size.  "If they (municipalities) have recently adopted changes in regulations to regulate things like the size of a house or the footprint to deal with current issues," Poland said, "this says, 'No, those regulations don't apply.' "

Poland said the local American Planning Association has not yet reviewed the decision but will do so later this year. He said that if the organization disagrees with the decision it will likely lobby for a legislative remedy.  The lawyer who represented Wilton in the case, Maureen Cox of the Waterbury firm Carmody & Torrance, said the town has filed a request to appeal the case to the state Supreme Court. The plaintiffs' attorney has filed a request to reject the "petition for certification."

Cox said the appellate court's decision affects all towns that have adopted zoning regulations after subdivisions have been approved. She said it will effectively mean that houses next to each other but built upon different subdivisions could be guided by different regulations, breaking up the uniformity that is sought through the application of zoning.

"We think it is a significant decision and we're hopeful (the state Supreme Court) will take it up," Cox said. 

Reacting to a recent Connecticut Appellate Court ruling that invalidated part of New Haven's zoning law, city leaders are preparing to either formulate new legislation or appeal the court's decision.

On Wednesday, the court ruled in Campion v. Board of Aldermen that planned development districts, special zones used for large building projects, are illegal. The city's leaders must now decide whether to modify New Haven's zoning legislation or appeal the ruling to the Connecticut Supreme Court.

The result may affect Yale directly, particularly since the University is seeking to zone the planned parking structure for Ingalls Rink as a planned development unit, which is similar to a PDD.

New Haven Mayor John DeStefano Jr. said his administration's initial reaction is not to appeal the ruling, though the possibility is still being considered. DeStefano also said he does not think the ruling will have a significant impact on what projects are actually constructed in the city.

"The court ruling doesn't apply to the merits of the project itself," DeStefano said. "It applies to the process by which we zone them. That distinction is important."

Ward 1 Alderman Ben Healey '04, who is chairman of the Board of Aldermen's Legislation Committee -- the committee that will have to approve any proposed changes to the city's zoning regulations -- said he believes the administration and the board should cooperate quickly to formulate new legislation.

"I would recommend we get together and write the new law rather than use up valuable time and money in what I think will be probably a losing case," Healey said. "The main thing that makes me nervous is trying to figure out what happens in the interim, either while the court case is being appealed or while the new law is being written. I think if we don't have a law we're operating in a vacuum."

This uncertainty about ongoing and upcoming projects may affect Yale's parking garage project, though the structure actually may not require special zoning.

"The claim has been made that [the parking structure] didn't actually require a PDU, in which case even if the current PDU plan falls apart under the court ruling, there's an opportunity to move it under regular rules of the zoning code," Healey said.

Tonight's workshop at the East Norwalk Library is the first of four new meetings to revisit neighborhood concerns before pressing forward with the master plan. The workshop will begin at 8 tonight in the Community Center of the library, 51 Van Zant St.  "We have formulated a list of items which reflect the major issues pertaining to Norwalk's neighborhoods," wrote commission Chairman Walter O. Briggs in a memorandum to interested parties. "For discussion purposes we have listed them below in general categories. Clearly there will be overlapping interests so these should not be considered as fixed units."

Those general categories are buildings, environment and quality of life. Specifics include modifying zoning regulations to reduce the height and bulk of single-family homes; creating an open-space acquisition fund by a property transfer tax; and forming village districts, based on public input from
meetings more than a year ago.

"The neighborhoods have done a lot of work (since then), and that's wonderful. We'll take the information and incorporate as much of it that makes sense into the master plan," said Briggs, referring to the four workshops. "These are very important meetings." So far, at least two East Norwalk neighborhood groups plan to attend tonight's workshop -- one of four scheduled by the commission -- to ensure that their concerns are incorporated into the master plan.

Laurel Lindstrom, president of the East Norwalk Neighborhood Association, said her group intends to present a 30-page draft of its "mini-master plan." Lindstrom said the draft plan offers many recommendations on larger "livability" issues facing East Norwalk residents. She named traffic, zoning and development, sidewalks and acquiring land for pocket parks among the recommendations addressed in the neighborhood mini master plan.

"You don't want to just talk about specific streets and potholes (tonight). It's really the larger issues," Lindstrom said.  Also expected to attend the workshop are members of the East Norwalk Improvement Association. "We still want to keep our voices known," said Terry Rooney, former president of the association.

A similar workshop for the Norwalk's northwest quadrant is scheduled at 7 p.m. May 11 at the Dolce Norwalk Center, 32 Weed Ave.

Shawn Heath, 19, and Jon Miller, 48, both of Pennsylvania and employed by J&G Industries of York, Pa., were saved by harnesses they wore in accordance with federal Occupational Safety and Health Administration rules.  The billboards and their horizontal support were hanging at a 45-degree angle after the accident on Moffitt Street. The signs had been visible from Interstate 95, north of exit 30.

Heath, harnessed to a ladder on the vertical pole supporting the twin signs, and Miller, attached to a catwalk, were performing maintenance about 5 p.m. when the collapse occurred.  "I heard a snap; I saw it going, and I just held on for dear life," Miller said after the accident.  He said he slid partway down the catwalk before his harness saved him.  He then unbuckled the harness and crawled the rest of the way down.  Heath said he climbed down the ladder on the vertical pole to safety. The pole remained upright after the billboards fell.

Both workers said the structure did not appear unstable before they climbed onto it.  Miller has been working with billboards 32 years, while Heath has one year of experience.  The billboard crashed through part of the roof of Soundview Land Design, at 65-85 Moffitt St.  Oscar Santana, brother-in-law of the design company's owner, was moving dirt with a loader when he saw the crash. "I heard a great big crack. I saw the thing just come down on the building."

The billboards also fell on the boom of a bucket truck parked underneath them, Santana said.  He said he did not worry about the signs falling in the two years the company has been on Moffitt Street. But he said perhaps the billboard should have been supported by two poles.  A Stratford resident, Edward Mackowski, of J. DeRosa and Associates, is part owner of the billboards.  He said cranes will be used to remove the structure.  Police blocked traffic from the intersection of Moffitt Street and Surf Avenue on Tuesday night because of the collapse.  Town building officials were investigating the cause.

The court upheld a decision zoning decision by the city of Stamford, which denied a permit request from Granite State Outdoor Advertising to erect two 10-story towers with 48-by-14-foot billboards.  Granite State sued claiming the city's regulations violated the First Amendment and other constitutional guarantees.

U.S. District Court Judge Alan Nevas last year ruled in favor of the city, and the state Department of Transportation, which entered the case as a defendant.  The Second Circuit Court of Appeals upheld Nevas' decision, Attorney General Richard Blumenthal said.  "The federal appeals court rightly ruled that there is no constitutional right to billboards that impose traffic hazards and visual blight on local communities," Blumenthal said.

Commission Chairman Calvin Braustein said that even if the modification had corrected all of the flaws for the reasons they had originally denied "there still would be problems with the site." "We (the commission) don't have the power to fix all of the problems there," he said.  Currently the town's Planning and Zoning Department is working on a resolution to deny Avalon's proposal, said Town Planner Bob Nerney on Wednesday. Avalon has also applied for a modification to a zone approved with Avalon's original plan and a change in zoning to that designation at 116 Danbury Road.

The commission is expected to make modifications to the zone definition, to deny the zone change at 116 Danbury Road and to deny Avalon's application for the development at that location. They are next scheduled to discuss Avalon at their Feb. 9 meeting.  Avalon's application falls under Connecticut's affordable housing statute and is governed by state mandates not placed on normal zoning proposals. These mandates only give the town 65 days from the submission of the proposal to render a decision. That time was extended because it took the Inlands Wetlands Commission longer than expected to come down with their decision on the matter.

In December, the Inlands Wetlands Commission approved Avalon's proposal. Planning and Zoning now has 35 days from the end of that approval to render their decision (Feb. 12).  Neither the town's attorney Marianne Barbino Dubuque of Carmody & Torrance LLP nor Avalon's attorney Timothy Hollister of Shipman & Goodwin LLP returned calls for comment this week.  Hollister, who some credit with penning the state's affordable housing laws, filed the modification to the Avalon's plan on the heels of a victory over Wilton's Inlands Wetlands Commission at the state Supreme Court regarding a 1999 application for 113 units at the same site. Avalon has been submitting similar plans to the Planning and Zoning Commission for the land at 116 Danbury Road since the mid-1990s.

The proposed 100-unit apartment complex would add 30 affordable housing units in Wilton and bring the town closer to fulfilling the state's requirement that 10 percent of housing in a town must be deemed "affordable." The proposed site of the development is on a 10.6-acre property owned by James and Marilyn O'Halloran.

Hartford –– To Rep. Robert Ward, the Republican leader in the state House of Representatives, it's pretty simple: the government shouldn't take away your house because someone wants to build a hotel.

No potential economic benefit –– not even an infusion of tax revenue in a struggling, cash-strapped city –– can justify the use of eminent domain on behalf of a private business.

For the second year in a row, Ward has introduced legislation to prohibit the state's eminent-domain law from being used to justify such a taking.

The veteran lawmaker's concerns about the use of eminent domain were galvanized by the controversial redevelopment efforts of the New London Development Corp., which invoked the law to condemn houses in the Fort Trumbull neighborhood, which the city and the NLDC hope to recast as a mixed residential and commercial neighborhood, complete with a hotel and a home for the Coast Guard Museum.

Seven property homeowners have held out, saying the seizure of their homes violates their right under the Fifth Amendment of the U.S. Constitution.

The U.S. Supreme Court will hear oral arguments on the case, Kelo v. New London, later this month, the first time the court has revisited the constitutional limits of eminent domain in decades.

Ward, meanwhile, has set to work on changing the law, with a bill that would ban the acquisition of some residential property by eminent domain if it is to be privately owned or controlled.

The bill would apply to owner-occupied property with four or fewer dwelling units. As currently drafted, it would not be retroactive, and thus would not apply to Fort Trumbull, but Ward said he would consider changing the language if he thought it would draw support.

“It's important because I believe our current law allows individual homeowners to lose their property so that private business interests can make more money,” Ward said. “I find that unacceptable and unjust.”

“If there is a blighted area, I have no objection to the use of eminent domain,” he said. “But you don't destroy non-blighted residential neighborhoods in the name of economic development. The strength of a city is in its people, and you don't make cities stronger by tearing down homes and building hotels.”

Ward's position echoes that of the Institute for Justice, the legal center that will argue the case of the Fort Trumbull homeowners before the court.

It also mirrors similar efforts in states like Colorado and Arizona, said Scott Bullock, the institute's lead attorney on the case.

“The bills faced vociferous opposition, as I'm sure they will in Connecticut, from government bodies and from developers,” Bullock said in a message left for a reporter.

“In both of those states, watered-down versions of the bills passed,” he said. “... It wouldn't surprise me if the same thing happens in Connecticut on this bill.”

The NLDC and the city have their own vociferous defenders. Among the organizations filing friend of the court briefs on their behalf were development agencies in New York, Massachusetts and California, attorneys general from numerous states, and organizations like the American Planning Association.

Taking private property in order to foster private commercial development is a justified use of eminent domain law, the planning association argues, if the development will plausibly benefit the larger community.

“If you're going to have economic development, somebody's got to come in and assemble the property,” said Patricia Salkin, the chairman of the APA's amicus curiae committee and associate dean of the Albany School of Law.

Proposals like Ward's, she said, “run a significant risk of cutting off government's ability to be a part of the engine of economic development.”

That doesn't mean the proposal is unattractive.

Rep. Ed Jutila, D-East Lyme, said he had followed the New London case from afar, but felt “a little skeptical” that the NLDC's project would result in the boon to the city that the organization claims.

“I'm not sure that the government should be in the business of taking private residential property for other than public use, even though there may be some indirect public benefit that results from it,” Jutila said.

But he was also careful to say that he did not necessarily support Ward's bill, and that he felt sympathy for the city in its efforts to shore up a flagging tax base after years of attrition.

“Towns are out there groping for any means they can find, and I don't fault them for this,” he said.

To push his law through the legislature, Ward will have to focus on the first sentiment more than the second, but it is a feat that he and others say is not out of the question.

A proposal to restrict eminent-domain use “unites people that are typically across the ideological divide,” said Bullock of the Institute for Justice. “It wouldn't surprise me if some Democrats and Republicans who want to protect people's rights joined forces to try to make this happen.”

Ward's similar bill last year easily won approval in the Judiciary Committee last spring, but was killed by one vote in the committee on Planning and Development.

“This is a wild card, and because it's a wild card, the big thing is for him to get the bill out on the floor for a vote,” said Rep. Diana Urban, R-North Stonington, an economist who added that she was, like Jutila, “of two minds” about the proposal.

“The economist would look at this from a utilitarian perspective –– the most good for the most people,” she said. “If eminent domain issues don't override ... it is clearly a benefit for the entire area. And I think that's what they're resting their hat on in the Fort Trumbull case.”

But Urban nevertheless seemed to lean toward Ward's position.

“Oftentimes we are using eminent domain to go into neighborhoods that work, that are clear communities that have created a community web, and we ruin them,” she said. “I really think that we have not carefully weighed the issues on a lot of these cases, and sort of just gone ahead with tunnel vision.”

“It's all about getting that bill to the floor,” Urban said, where Ward stands the best chance of getting his colleagues in line behind him. “You just can't draw party lines on this one.”

Ward seemed to expect an uphill battle, but having elicited a promise of a hearing from leaders of the Judiciary Committee, he was confident.

“I think it has a good chance,” he said.

Every month for 20 years, Gentle "Jim" Day mailed his $1,222.22 mortgage payment on his business, Royal Auto Repair.  He finally paid if off last year. But now Day, the son of Arkansas sharecroppers, faces losing his land and business.  An agency backed by the city is preparing to take Day's business by eminent domain to make way for something called a "Media Box."

Day can take the offer of $67,500 for his property - less than the city says it's worth - or continue with an already drawn-out court battle. Either way, he has little chance of keeping his shop on a triangle of land at Spring Avenue and Olive Street.  Critics say Day's situation is a classic example of the abuse of eminent domain. A case pending before the U.S. Supreme Court could affect thousands of similar cases nationwide.

In St. Louis, Day is one of a growing number of property owners angered by the methods being used to redevelop the city's arts district, an effort that has been led by a former mayor.

"Coming up, I was afraid of losing my property for tax purposes, lack of payment," says Day, 57. "I paid the property off, and I still lose the property. That's a bad feeling."

Compounding his frustration is that he knows little about what the plans are for the land, nor what a "Media Box" is.
Day's business is just steps way from the Fox Theatre, Powell Hall, the Contemporary Art Museum and other cultural institutions. The area is struggling and has been targeted for redevelopment by the city. Leading the charge is Grand Center Inc., a nonprofit organization headed by former Mayor Vincent C. Schoemehl Jr.

The redevelopment plan passed in 2002 by the Board of Aldermen names Grand Center as "master developer," giving the agency broad and almost unilateral powers to control land use. As president and chief executive of the agency, Schoemehl is the mini-mayor of a swatch of midtown roughly the size of 20 Busch Stadiums. Grand Center can approve or reject building designs, dispense up to $80 million in tax incentives and acquire land by eminent domain.

Grand Center's vision has the area becoming the "cultural soul" of the city, a residential and commercial district that will rival the Delmar Loop and Central West End.  The vision does not include an auto repair shop. The Post-Dispatch obtained a map of Grand Center's "Strategic Development Master Plan" that shows the "Media Box" in the same spot as Royal Auto Repair.

"Can't talk" about it

So just what is a Media Box?  For weeks, officials in Grand Center and others involved refused to discuss the plan.  The redevelopment plan originally given to the city called for a park, open space or residences on the site; an artist with a history of multimedia projects is involved.

"I can't talk to you about the Media Box," Eric Friedman, a real estate agent who describes himself as a principal in the project, said earlier last month.  But last week, Michelle Cohen, a public relations executive recently hired by Grand Center, said the "Media Box" is a building that will hold a design studio and apartments or condominiums.

"The 'Media Box' is really the working title for the design studio piece of it," Cohen said.  Friedman is working with the city's postmodern standard-bearer, an asbestos lawyer turned multimedia artist named Paul Guzzardo. Guzzardo has been involved in creative presentation of images, including projecting the last episode of "Seinfeld" on the side of a building on Washington Avenue. He also owned an "interactive" nightclub, Cabool, where dance moves were broadcast over the Internet.

"I have an interest and kind of obsession with information culture and urbanism," Guzzardo said recently - although he also refused to discuss the Media Box.  The proposal submitted to the city by Grand Center says nothing about using Day's property for commercial purposes. Still, Schoemehl says the intended use of the land is consistent with the redevelopment plan.

"It is not simply being condemned in furtherance of a piece of abstract art," Schoemehl said.

Fighting Grand Center

Day developed a knack for engine repair while working on farms in Crawfordsville, Ark., where he grew up.

He came to St. Louis as a young man for formal training as a mechanic. Before he bought Royal Auto Repair, Day worked jobs including on an assembly line at an envelope factory and in the kitchen of Uncle Bill's diner.  In October 2003, Schoemehl offered Day $125,000 for his land. Day rejected it. Two months later, Schoemehl cut the offer to $67,500. That is $12,800 less than the city's official appraisal.

"Let me put it this way - $67,000, if you give me three months, I could probably make that here," Day said in an interview in his cramped office at the repair shop.  After Day rejected the second offer, an arm of Grand Center filed a lawsuit to have the property condemned. It is pending in St. Louis Circuit Court.

Other property owners have sued Schoemehl and Grand Center over tactics they consider heavy-handed and bullying.

A group of property owners led by the Masonic Temple sued Grand Center in October in federal court. They charge that Grand Center has wrongfully threatened property owners with eminent domain "in an effort to get them to sell at a distressed price, sometimes offering only $1, which itself carries an ominous implication."

The company that operates the Fox Theatre sued Grand Center over parking spots, accusing it of seeking the "gentrification" of the area. That suit was dismissed, but, in a separate suit, Grand Center sued the company that owns Fox in a land dispute that was dismissed in circuit court. That suit is now pending in state appeals court.

Even the alderman who sponsored the measure to give Grand Center its power now says they might be taking those powers too far.

"Eminent domain should be the exercise of last resort," said Alderman Mike McMillan, D-19th Ward. "I do not think that, long term, it is the best thing for the development of the district because it creates a lot of bad will."  McMillan says he was surprised to learn about Day's situation.

"Had I been aware of it, I would not have supported the way it was done," McMillan said.

What is blight?

The Fifth Amendment allows local governments to take private property for "public use" as long as "just compensation" is provided. In the two centuries since those terms were inked, it has been up to judges and lawmakers to decide what they mean.  Grand Center's eminent domain powers stem from the designation that the area is "blighted."

And just what is the definition of blight?

"Bottom line is anything a local legislature says is blight is blight," says Stanley J. Wallach, a lawyer who is chairman of the Missouri Bar's Eminent Domain Law Committee. "Absent fraud or collusion or bad faith, courts will not second-guess it."

For instance, the campus of St. Louis University was deemed blighted by the Board of Aldermen. That made the university eligible for tax breaks on building its 13,000-seat arena.  Day's property also is blighted, which means it is ripe for acquisition, regardless of whether the Media Box is for the public good.

Clients who come to Wallach with eminent domain complaints get this advice: "Get to City Hall with everybody you can, bang on some pots and pans, and try to stand up for your rights at the political level. Because by the time it gets to me, you are fighting an uphill battle to say the least."

The case before the Supreme Court could change that. Residents of New London, Conn., sued the city in 2000 after the City Council gave permission to a development agency to take their homes by eminent domain to build office space and a hotel. The city's rationale was that the new projects would provide more tax dollars and economic development than the homes. The nation's highest court will hear the case Feb. 22.

If it issues a broad ruling against the city, the decision could affect eminent domain disputes everywhere. That includes fights in Arnold, Sunset Hills and Maplewood, where developers are seeking to take private homes for shopping centers.

Day is waiting for his day in court. A hearing set for Jan. 18 was postponed to March 7. If Day and Grand Center don't settle, the court could condemn the land and set compensation for Day.

"I sleep at night so I can defend myself from it," Day says. "I try to have a nice sleep and a clear mind because every day I have to defend myself from this."

Reporter Jake Wagman
E-mail: jwagman@post-dispatch.com
Phone: 314-622-3580

NEW LONDON, Conn. (AP) -- Fifteen houses are all that remain of Fort Trumbull, a once vibrant immigrant neighborhood flattened into expanses of rutted grass and gravel.

The homes stand in defiance of New London's plan to pave the way for a riverfront hotel and convention center, offices and upscale condominiums.

Refusing the city's efforts to get them to leave, seven families are going before the U.S. Supreme Court on Tuesday, arguing that the city has no right to take their private property solely for economic development. The rebellious homeowners include an elderly Italian immigrant, a mechanic and a former deli owner.

"It's a case of the rich eating the poor," said Matthew Dery, who lives in one of four houses on a compound his family has owned since 1901. "Sometimes the poor are difficult to digest."

Leading the charge is Susette Kelo, a 47-year-old nurse who bought her home in 1997.

"They have over 90 acres now," Kelo said. "It's more than enough room to build on. We never said they can't build. We just said 'We want to stay.'"

But Kelo's apricot-colored house, with a decorative outhouse in the front yard and wind chimes made of silverware, doesn't fit in the city's development plans.

"They just would not be compatible with all the other uses," said Edward O'Connell, an attorney representing the New London Development Corp., the quasi-public agency behind the redevelopment effort.

Whether building highways or public offices, laying railroad tracks or eliminating blight, governments have long relied on eminent domain laws to allow them to take private property.

The Fifth Amendment allows governments to take private property for "public use."

New York used eminent domain to improve Time Square, expand the New York Stock Exchange and build the World Trade Center. Baltimore replaced a downtrodden waterfront with a bustling harbor development.

But Fort Trumbull is not besieged by blight, poverty or crime and New London is not building a highway or government building, and the residents' appeal asks if "public use" allows governments to seize unblighted taxpayer property solely to encourage private development.

The Supreme Court has given governments broad power to take private property through eminent domain, provided the owner is given "just compensation." But in recent years many cities and towns have been accused of abusing their authority.

New London officials say the taxes generated by redeveloping Fort Trumbull ultimately will benefit the public, and the state Supreme Court ruled that was enough to justify the condemnation.

City officials have worked to remake the area since 1996, when the Naval Undersea Warfare Center left town with its 1,400 jobs. When pharmaceutical giant Pfizer opened a $350 million research center nearby that year, city officials saw an opportunity to create high-end housing, retail shops, a business park and a hotel.

All that was standing in the way were 115 homes.

Most owners accepted the city's buyout offers. Those who remain fall into two categories - people who simply won't leave and people who feel they're being cheated out of the fair value of their homes.

"The sentimental holdouts are the more difficult to deal with," O'Connell said. "No matter what you offer, they won't consider that sufficient or appropriate. They're just not motivated by the logic of the marketplace."

Kelo says it's not about the money for her. She was raised nearby, and when her children moved out she wanted a house by the water. Her small but cozy house has a front porch with a a great view of the Thames River.  Dery is upset that the city wants to take his property before putting a developer under contract and deciding exactly what will replace his neighborhood.

"What they're saying," Dery said, "is that anything that we put there will be better than you."
 

AND ANOTHER REPORT 2/20:

Hartford Courant:
High Court To Test Seizure Of Homes;  Eminent Domain Is Focus Of New London Case
By LYNNE TUOHY

NEW LONDON

The Fort Trumbull eminent domain controversy is the most significant Connecticut case to be argued before the U.S. Supreme Court in 40 years, and offers the court its first opportunity in half a century to address the government's power to take private property for economic development.

The owners of 15 tiny parcels scattered throughout the 90-acre redevelopment plan for the Fort Trumbull peninsula will board a plane Monday for Washington so they can hear their fate argued Tuesday before the justices.  The court's ruling, expected in June, could dramatically affect personal property rights, struggling municipalities and economic development for decades to come.

Attorney Wesley Horton, who will argue the case on behalf of the city of New London and its designated redevelopment agency - the New London Development Corp. - said that aside from the recently decided federal sentencing guidelines case, "I don't think there's a more important case on their docket this year."

Dana Berliner of the Washington-based Institute for Justice, a private civil liberties law firm that represents the property owners, agreed.

"The Supreme Court hasn't looked at a case of eminent domain for private development in more than 50 years," Berliner said. "So whatever the court has to say is going to affect how eminent domain is used in this country for the next 50 years."

The case pits the working-class property owners of Fort Trumbull against an economically distressed city looking to capitalize on its first major industrial development in a century: the construction of the global research and development headquarters for pharmaceutical giant Pfizer Inc., which was announced in 1998.

In place of the mosaic of homes and shuttered military buildings on Fort Trumbull, the city envisions a hotel and conference center, office space, luxury condos and extra parking for the Fort Trumbull State Park.

The handful of homeowners who resisted attempts to buy their homes - and had them taken by eminent domain - claim it's unconstitutional to take their homes for private development. Susette Kelo and her neighbors sued the city of New London and the private New London Development Corp.

The Connecticut Supreme Court last March ruled 4-3 that the Fort Trumbull project has "the public benefits of creating new jobs, increasing tax and other revenues and contributing to urban revitalization" - thereby satisfying the public use clauses of the state and federal constitutions. The high courts of five other states have also held that government may condemn property for economic development, if there is a public benefit involved.

The government's taking of private property through eminent domain historically resulted in a tangible public use - a school or a road, a dam or a public utility company. But in an era of burgeoning development in the suburbs and cities declining because they have no land with which to compete for malls and corporate office parks, the "public use" clause of the Fifth Amendment has been contorted into a variety of innovative applications.

Blurring The Lines

Not since the U.S. Supreme Court's 1965 ruling in Griswold vs. Connecticut - in which the court held that a state law barring distribution of contraceptives violated marital privacy rights - has a Connecticut case been poised to have such resounding national impact.

"If the court agrees with the Connecticut Supreme Court, it will change home ownership as we know it in America," Berliner said. "They will be saying all you need to do to take somebody's home is to think of something else that would go there that would produce more taxes and jobs."

The high court has shown great deference to state and local governments to determine what constitutes "public use" and "public benefit." But it also has long barred the use of eminent domain to benefit private interests.

The court blurred that distinction somewhat in its 1954 ruling that expanded the "public use" clause to encompass the elimination of blight and razing of slums. Once that goal was accomplished, the court held, the government entity was free to permit private development of the now-cleared land. That case, Berman vs. Parker, permitted the razing of blighted areas of southwest Washington and subsequent redevelopment.

The court in Berman rejected the appeal of the owner of a non-blighted department store in the midst of the area being razed, saying, "It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area."

The fallback position of the homeowners is that, even if economic development is a legitimate public use, their homes should still remain because the development plan for Fort Trumbull includes no specific use for their particular properties.

Horton rejects that as unrealistic.

"A developer wants the whole area available," Horton said. "You don't want to see what's called a spotted leopard - a house here and a house there. Parcel 3 is a wasteland. It looks like it's been bombed, but there are a few houses."

The case has drawn nearly 40 friend-of-the court briefs - 13 in support of the development and 25 in support of the property owners - often with multiple organizations signing onto one brief. The Connecticut Conference of Municipalities brief, for instance, was joined by municipal leagues from 31 states.

A brief filed by a group of law school professors on behalf of the Kelo coalition notes that state courts have gone in markedly different directions in cases presenting similar facts, creating a "hodgepodge" of decisions. The professors said the Kelo case offers the high court the opportunity to "reinvigorate" the takings clause of the federal constitution.