Connecticut eminent domain case being considered by U.S. Supreme Court

[SGB]

There was a well done story on the New London CT eminent domain case on NPR's Morning Edition this morning. Yet another case of a the use of eminent domain to promote economic development projects and increased tax base at the expense of the current residential property owners rights.

When an audio link to the NPR story is available, I will post it in this thread. In the meantime, here's a column on the topic from George Will.

I, for one, am hoping the U.S. Supreme Court will consider this case. I'd like to have some new and binding federal case law on the issue; it's long overdue.

A note to lurkers in Connecticut: This would be a really good time to register and join the discussions.

[Seabishop]

The New London case sucks but they're hardly the first city to take homes to turn over the land to a "higher and better" use. I'm glad a case like this is finally going to be heard by the US Supreme Court. I hope their ruling is clear.

Parts of the area that have been developed look like a suburban office park now. Its the heavy reliance on property taxes that drives towns to such extremes. New London probably did everything in their power to keep Pfiezer from going to [gasp] the town next door. New London is tiny in land area and has a lot of tax emepmt property . . . not that its a good excuse.

[The One]

I would love to know what is going on with all the eminent domain cases in Colorado, regarding the same kind of issues.

[SGB]

Eminent Domain in New London, CT

(Windoze_TM Media format)

[JNA]

I would love to know what is going on with all the eminent domain cases in Colorado, regarding the same kind of issues.

Check out this website:
http://www.castlecoalition.org/report/

"We have compiled this information from published accounts and court papers covering the five-year period from January 1, 1998 through December 31, 2002."

Go to the Table of Contents Box,
Scroll down to Colorado or any other State your are interested in.

[Seabishop]

Let's hear it for New Hampshire.

News reports revealed no reported condemnations for private parties in New Hampshire between 1998 and 2002. This admirable restraint probably results in part from a decision of the New Hampshire Supreme Court in 1980 holding that New Hampshire’s constitution did not allow condemnations for “economic development,”443 i.e., local governments could not take land for private businesses on the premise that the business would create jobs and pay taxes. One legislative attempt to increase compensation for condemned businesses failed in 2002, but New Hampshire remains one of the best states to own a home or business without fear of it being taken for another private party.

[NHPlanner]

Let's hear it for New Hampshire.

News reports revealed no reported condemnations for private parties in New Hampshire between 1998 and 2002. This admirable restraint probably results in part from a decision of the New Hampshire Supreme Court in 1980 holding that New Hampshire’s constitution did not allow condemnations for “economic development,”443 i.e., local governments could not take land for private businesses on the premise that the business would create jobs and pay taxes. One legislative attempt to increase compensation for condemned businesses failed in 2002, but New Hampshire remains one of the best states to own a home or business without fear of it being taken for another private party.

Yet another reason I like living and working here.

[jordanb]

I believe that if the Supreme Court refuses to hear the case, then that's tacit agreement with the appellate court and the appellate court decision becomes the law everywhere (not just in the appellate court's district).

Does anyone know what the appellate court decision was?

[JNA]

Connecticut Supreme Court Opinions
Published in Connecticut Law Journal - 3/9/04:

SUSETTE KELO ET AL. v. CITY OF NEW LONDON ET AL. (SC 16742)

http://www.jud.state.ct.us/external/...8/268cr152.pdf
78 pages long

[tsc]

Does anyone have some photos of this neighborhood in Connecticut?

[Seabishop]

Does anyone have some photos of this neighborhood in Connecticut?

I can't find any pictures of the demolished neighborhood and I never saw it in person. But here's the new Pfizer development and an aerial of the area. I'm not sure how recent the aerial is.

[Rumpy Tunanator]

Wow, it screams post 1960's with such an urban renewal approach of such open space. The kind of green area that will never get used because it is so disconnected with the surrounding architecture. Sort of like high rise public housing. It's a surburban office park plopped into a prime location that could have served better purposes.

I wonder what kind of payouts the company gave to the local politicians (oh wait that wouldn't happen nowadays, its reverse). Poor planning and municipal government decisions on this one. I have seen a consultants plan for the redevelopment of our outer harbor here and it had the same lifeless crap attached to it. Only bringing the 9 to 5 crowd to it, with the same lifelessness as this development. Another bunch of crap for cities trying to give in to the suburbs by trying to be the suburbs, when they have so much more to offer than the suburbs. I know its tax revenue, but I would have held them to a higher standard than that which incorporated more use out of the proposed site's acreage.

Sorry if I sound cynical (sp? r r r), but I'm sick of corporations holding declining cities hostage to get their way. Man I'm starting to sound like a common theme from others perspectives around here. I smell a lawsuit (in all seriousness, this development makes me sick).

[Seabishop]

Wow, it screams post 1960's with such an urban renewal approach of such open space. The kind of green area that will never get used because it is so disconnected with the surrounding architecture. Sort of like high rise public housing. It's a surburban office park plopped into a prime location that could have served better purposes.

I wonder what kind of payouts the company gave to the local politicians (oh wait that wouldn't happen nowadays, its reverse). Poor planning and municipal government decisions on this one. I have seen a consultants plan for the redevelopment of our outer harbor here and it had the same lifeless crap attached to it. Only bringing the 9 to 5 crowd to it, with the same lifelessness as this development. Another bunch of crap for cities trying to give in to the suburbs by trying to be the suburbs, when they have so much more to offer than the suburbs. I know its tax revenue, but I would have held them to a higher standard than that which incorporated more use out of the proposed site's acreage.

Sorry if I sound cynical (sp? r r r), but I'm sick of corporations holding declining cities hostage to get their way. Man I'm starting to sound like a common theme from others perspectives around here. I smell a lawsuit (in all seriousness, this development makes me sick).

For a city that complains about being short on space with only 5 sq miles, the expanses of grass seem pretty wasteful - especially when homes are demolished to make room for it all.

Hey, years from now when you take your honey back to your assisted living facility you'll be glad Pfizer got whatever they wanted.

[Rumpy Tunanator]

For a city that complains about being short on space with only 5 sq miles, the expanses of grass seem pretty wasteful - especially when homes are demolished to make room for it all.

Hey, years from now when you take your honey back to your assisted living facility you'll be glad Pfizer got whatever they wanted.

And with that, I'm going lobby to get the maker of Depends to relocate here

[JNA]

UPDATE
article in from the NY Times -

Justices Agree to Hear Property Rights Case
By Linda Greenhouse

Published: September 29, 2004
WASHINGTON, Sept. 28 - The Supreme Court added an important property rights case to its docket on Tuesday, beating the calendar to fill in its schedule for the new term that begins Oct. 4, the traditional first Monday in October.

The case is an appeal by seven property owners in a neighborhood in New London, Conn., that the city has designated for economic development. The Connecticut Supreme Court upheld the city's right to exercise its power of eminent domain to take the parcels, pay compensation to the owners and turn the land over to a private developer.

While eminent domain in the past was generally limited to government projects, like roads or public buildings, or to what used to be known as slum clearance, local governments are increasingly finding it convenient to use eminent domain to clear land for private development that will enhance the tax base.

New London's plans for the 90-acre neighborhood of small homes include a waterfront hotel and conference center, office space for high technology research and development, retail space and 80 new homes. The city has offered the property to a private developer under a 99-year lease at $1 a year. The property owners rejected the city's offer of compensation and filed a lawsuit to block the plan.

The question for the Supreme Court in Kelo v. City of New London, No. 04-108, is whether private development of this sort amounts to the kind of public use for which eminent domain is authorized by the Constitution. The so-called Takings Clause of the Fifth Amendment provides: "nor shall private property be taken for public use without just compensation."

Dana Berliner, a senior attorney with the Institute for Justice, a public interest law firm with a libertarian orientation that is representing the New London homeowners, said in an interview that the case had "nationwide implications that will define eminent domain and public-use law for decades to come."

"The framers put 'public use' in the Constitution for a reason," Ms. Berliner said. "A private corporation making a profit is not a public use. Developers should purchase private property voluntarily like the rest of us."

Wesley Horton, the lawyer representing New London, said that "the economic revitalization of New London is a valid public use," as the Connecticut Supreme Court found in its 4-to-3 decision last spring. In a statement issued by his law firm, Horton, Shields & Knox, of Hartford, Mr. Horton said New London's plan was "motivated entirely by concern for the economic welfare of New London and its citizens." The city has been declining for years and has been designated a "distressed municipality" by Connecticut's Office of Planning and Management.

Although the case clearly caught the justices' attention sufficiently to induce them to select it from among the roughly 1,000 new appeals that accumulated over the summer recess, it is not clear how the court will decide it. The Supreme Court has traditionally been quite deferential toward the government's use of eminent domain. The case, which the court will hear in January, is likely to attract a large number of briefs and to spark a lively debate over whether New London's economic development proposal is different in kind from the uses the court has authorized for eminent domain in the past.

[ludes98]

I just read some more on this. I am so glad that a significant land use case was selected from the 1200 cases they could have heard. Not many people weighing with thier opinions. I know it would hurt many a good redevelopment project in the works, but I have never liked eminent domain for private developers. Everyone has their price, if they need the property that bad pay more than market value for it.

[JNA]

Latest article from the NY Times, Jan. 30, 2005:

Print headline: Government Says It's Too Nice for Them to Call Home

Website Headline: There Goes the Old Neighborhood, to Revitalization
http://www.nytimes.com/2005/01/30/ny...l?pagewanted=1

Article Highlight:
"The issue is particularly fraught in the Northeast, where two trends have intersected to sharpen the struggle between the deeply held values of individual property rights and the public benefits of bringing aging neighborhoods back to life. One is the scarcity of suburban land available for development, as local communities and state governments organize to prevent sprawl and developers turn their eyes to the cities.

The other is the need for the region's aging small towns and cities to rebuild their tax bases, lest they sink deeper into poverty and abandonment."

[Seabishop]

The backlash: CT State lawmaker proposes bill to limit eminent domain for private purposes.

http://www.theday.com/eng/web/news/r...9-1651D00A05E1

[gkmo62u]

The case was heard today.

I also see Paul Farmer has an editorial in the USA Today. I think this is a terrible precedent for APA to be supporting. Its just one more step for the Planning Profession to take in its growing hostility toward individual property rights.

Think of it this way, your property could be next!

[JNA]

The case was heard today.

I also see Paul Farmer has an editorial in the USA Today. I think this is a terrible precedent for APA to be supporting. Its just one more step for the Planning Profession to take in its growing hostility toward individual property rights.

Think of it this way, your property could be next!

Here is his editorial from today 02/21/2005 , pg 11A:
Consider the greater good .
Court decision to restrict property seizures would hurt communities
By Paul Farmer

Using eminent domain for the benefit of the community as a whole is never easy. Eliminating this important tool would hurt, not help, both citizens and their communities. The tool should compensate citizens justly with fair market value. And substituting judicial review for local decision-making is a bad idea.

The issue being argued today before the U.S. Supreme Court is whether a city can condemn private property and transfer it to another private owner for economic development purposes.

Using condemnation only when a government entity will own the property — for example, for a highway or jail or to remove blight — unduly restricts a community's ability to manage growth and change. Some of the nation's most successful community developments, such as the Pearl District in Portland, Ore., came about because a local government worked with private interests to assemble many individually owned properties to build something that benefits the entire community.

Communities are not frozen in time. They are always changing — whether thriving or stagnating. Owning a piece of property does not guarantee it will be immune to change.

Local officials are responsible for managing change to ensure that it results in the greatest good for the whole community. They can't, nor should they, do it alone. It takes good planning — planning that involves everyone: residents, business interests, civic leaders, elected officials and planners alike. It's not easy, but a democratic planning process with meaningful public participation is the appropriate way to proceed, not the courts.

Our communities should not be hamstrung by having to wait for the courts to decide whether economic development objectives are “public” enough to satisfy the “public use” clause of the Fifth Amendment to the Constitution. Only by working together have we been able to build communities of lasting value. We don't need to disturb this balance by having the courts assume a greater role at the expense of local communities.

Paul Farmer is executive director of the American Planning Association, one of more than 60 groups, individuals and governments signing friend-of-the-court briefs in support of the city of New London, Conn.

[Seabishop]

I think the problem with APA's argument is that it puts too much emphasis on the City's plan as the democratic will of the people. In some communities the Comp Plan is an up to date reflection of the will of the people and in some communities its easier for leaders to tweak the plan here and there without most residents caring.

[SGB]

Justices Appear Reluctant to Increase Land-Use Oversight

[Greenescapist]

The Economist has a good overview of the case in this week's issue. I copied and pasted the whole thing since it's only available online to subscribers:

It sounds like the Supreme Court will rule for New London.

*****
Eminent domain

Despotism by stealth
Feb 17th 2005 | NEW LONDON
From The Economist print edition


You think America is a land where individualism holds sway and private property is sacrosanct? Next week, the Supreme Court decides whether that is true

NEW LONDON is an old Connecticut whaling town halfway between New York and Boston. The day before Thanksgiving 1998, Susette Kelo, a registered nurse, got an unwelcome holiday gift: an eviction order. Her house, and those of six other families living on an abandoned submarine base called Fort Trumbull, had been compulsorily purchased. She had five months to get out.

What is unusual about this is that her house is no rat-infested health hazard. She bought and spruced it up three years before. Nor is it being seized by a branch of government: the evictor is the New London Development Corporation (NLDC), a private non-profit body. The land is not going to be used for a public works project, such as a bridge or school. Indeed, it is not certain what her land is wanted for.

New London is trying to turn itself into a biotech hub. In 2000, it persuaded Pfizer to build its global research centre there. Now it wants Fort Trumbull for a biotech park, complete with hotel and fancy houses. Writs are flying. The residents accuse the NLDC of behaving like the Gestapo, pointing bulldozers at their front doors, surrounding an old lady's house with klieg lights and using deafening stone-crushing equipment in their backyards. The NLDC accuses the homeowners, who have less than two acres of land, of holding up a 90-acre development that would transform the city. In March 2004, the Connecticut Supreme Court ruled in the NLDC's favour by a 4-3 margin.

The case is now a celebrated one. Three of America's largest pressure groups, the AARP, the NAACP and Martin Luther King's Southern Christian Leadership Conference, have lined up behind Mrs Kelo. New London has the backing of practically every local-government umbrella-group as well as New York and the American Planning Association. The case has divided the Republican coalition, with defenders of private property rights and small-government types on one side, and big business and development interests on the other.

On February 22nd, these two juggernauts collide at the Supreme Court when it hears Kelo v City of New London. The case marks the biggest test for 50 years of “eminent domain” (or “compulsory purchase” as it is more accurately called in Britain).

This sounds technical, but it involves fundamental issues. When may the government overrule private property rights for the sake of the public good? What constitutes “the public good” in such a case? Does it make any difference whether that good is delivered by a public or a private entity? George Will, a conservative columnist, has even suggested that allowing the government to seize a person's home on the grounds that it can make better use of the property is creeping despotism.

Most people accept that private property rights should not be absolute. Mad grandpa in his tumbledown shack can be evicted so a school can be built. But the power to take over private assets in the public interest must be constrained. The constitution does this by saying that private property shall not “be taken for public use, without just compensation”. State constitutions follow that wording.

The blighted and the condemned

But what is “public use”? In the classic examples—roads and schools—it refers to entities that are publicly owned and which benefit everyone. But in 1954, the Supreme Court ruled in Berman v Parker that private projects meet the definition if they have a “public purpose”. The court approved a slum-clearance plan of the government of Washington, DC, over the objections of a local department-store owner. In the 1960s and 1970s, local governments often declared unsafe slums to be “blighted” and used the power of eminent domain to buy out people in the way.

Since then, two things have changed. First, definitions of “blight” have broadened. Lakewood, Ohio, condemned well-kept historic homes for being “functionally and economically obsolete”. In Lancaster, California, the city government condemned a discount store on the basis that a neighbouring retail giant, Costco, wanted to expand into it. “Blight” meant, in effect, making room for properties that would pay more tax revenue.

Second, local authorities have given up relying on blight at all. In 1981, the Michigan Supreme Court let the city of Detroit raze a working-class Polish neighbourhood, Poletown, so that General Motors could build a new Cadillac plant. The city did not condemn Poletown as blighted; it merely said a car plant would generate more taxes and jobs than a Polish neighbourhood. In this case, “public use” became something like “economic benefit”: private property may be taken if it obstructs a community's development.

New London did not use a blight designation. And Connecticut's Supreme Court said the economic benefits did not have to be substantial and certain (as had been required in Michigan). New London could condemn a property without knowing exactly how it was going to be used.

Defenders of eminent domain argue that these are logical developments, that courts have approved each step and that if voters dislike the outcome, then they can always vote the bums out. The last point is debatable in this case, because the city of New London has delegated its power of eminent domain to the NLDC. But the Supreme Court has traditionally given deference to local governments in local issues.

More broadly, argue the defenders, development in tough spots would stop without eminent domain. New London was dying before Pfizer put its research centre there. The new development, says the NLDC, would generate 1,000 jobs and up to $1.3m in annual taxes: who are seven people, who have anyway been offered compensation, to stand in the way?

Eminent domain has helped many big cities bounce back from decline. New York's Times Square is a good example: before eminent-domain purchases, 42nd Street was in poor shape. Shops now want to be huge (think Wal-Mart, or, indeed, Costco). Cities that have reinvented themselves as downtown malls, such as Indianapolis, have had to use eminent domain to acquire big enough sites. Otherwise, the shops would have fled to the suburbs.

Opponents reply that the system is not so much necessary as out of control. The Institute for Justice, which is arguing for Mrs Kelo in the Supreme Court, has combed through newspaper reports to count over 10,000 examples in which “eminent domain” condemnations have been used or threatened in 1998-2002—and that is just a fraction of the total.

They also dispute the claims that the courts have approved each step. Rather, they say, there is legal uncertainty. Last July, the Michigan Supreme Court reversed its “Poletown” decision, admitting the original was a “radical departure from fundamental constitutional principles”. And while a dozen states frequently use eminent domain for economic development, a dozen specifically ban or discourage it—with little evidence of harm. Georgia has seen no eminent-domain cases in the past seven years; Atlanta is overwhelmed by growth. Washington state forbids the practice for private development; Seattle has won a stack of awards.

The opponents say they do not want to get rid of eminent domain—just to tie its use back to a meaningful definition of blight. Put simply, cities cannot take someone's house just because they think they can make better use of it.

Otherwise, argues Scott Bullock, Mrs Kelo's lawyer, you end up destroying private property rights altogether. For if the sole yardstick is economic benefit, any house can be replaced at any time by a business or shop (because they usually produce more tax revenues). Moreover, if city governments can seize private property by claiming a public benefit which they themselves determine, where do they stop? If they decide it is in the public interest to encourage locally-owned shops, what would prevent them compulsorily closing megastores, or vice versa? This is central planning.

The Supreme Court will announce its decision in the summer. For local governments, it could change the way they develop towns. For private-property defenders, it could decide whether there any constitutional restrictions on eminent domain. And for Mrs Kelo and her neighbours, it will “merely” determine whether they can continue to own the houses which some of them have lived in since they were born.

[Cardinal]

The sad thing about all of this is that it is a good thing for cities to have this power to carry out redevelopment, but they need to use it judiciously. There are too many cities that have abused it now, and so the outcome is likely to be an either/or ruling: either the court will put an end to this use of eminent domain, or it will be upheld. What we really need is a ruling somewhere in-between, which would define some very strict criteria in which eminenet domain may be used.

[SGB]

What we really need is a ruling somewhere in-between, which would define some very strict criteria in which eminenet domain may be used.

I agree.

This recap of oral arguments from The Boston Globe suggests that we might get a decision along those lines.