High court decision on eminent domain could answer Waterbury's questions — (Waterbury CT) Republican-American , 10/25/04

By Nicolas Zimmerman

When Tony Bennett serenades Waterbury residents with the opening lines of "I Left My Heart in San Francisco" next month, the Palace Theater will join the arts magnet school and new University of Connecticut branch as a jewel of the city's $189 million downtown renaissance.

The project's boosters say downtown now joins the popular Brass Mill Center mall that opened near downtown in 1997.

Not so long ago the Naugatuck Valley Development Corp., the agency that has overseen the city's downtown revitalization, had a plan they said would funnel shoppers from the mall to the burgeoning entertainment district downtown.

The group had drawn up plans as early as 1997 to acquire through eminent domain more than 40 buildings — covering about eight acres — along East Main Street. Eminent domain gives government the right to purchase private property for public use.

At the time, city planners said they thought the ramshackle stretch of homes and businesses could better serve the citizens of Waterbury if it was redeveloped into higher-end retail and residences. John Lembo, then-project director for NVDC, said the goal of the project was to create a bridge to downtown.

But residents and business owners resisted. Committees were formed and public hearings followed. In the end, a Municipal Development Plan — a prerequisite for cities that wish to use eminent domain — never materialized.

NVDC's president at the time, John Michaels, posed the most pertinent question in this newspaper's pages: "If the tax rolls have the potential to grow, should we clean up East Main Street, add to the tax rolls, or let it sit there?"

Seven years later Michaels' question will finally get a response. Next month attorneys for a group of New London residents will argue that growing the tax rolls — even for economically depressed cities — does not justify a "public use" under eminent domain law.

In the New London case, the city has tried to use eminent domain to develop a residential neighborhood adjacent to pharmaceutical giant Pfizer's new $270 million research facility. The city has argued that the project, which would include a hotel, upscale housing, private offices and more, would benefit the public by generating more jobs and tax revenues than the homes and modest business there now.

The plan called for the city to buy the 90 acres of land that comprised the Fort Trumbull neighborhood, and then lease it to private developers. Ted Taub, a Florida lawyer specializing in real estate and land-use law, said eminent domain has traditionally been used for two purposes: for public projects like roads and schools, or to clear severely distressed slums. The New London case represents neither.

Taub said he thinks the Supreme Court is likely to raise the standard cities must meet to show a redevelopment project serves a "public good."

In its brief to the Supreme Court, attorneys for the New London residents warn of the dangers of the so-called "best use" interpretation of eminent domain laws. Since all homes and small businesses generate fewer tax dollars and jobs than do large businesses, they argue that no individual will be safe if the court rules in favor of the city of New London.

If that is the ruling, Waterbury could seek to resurrect its plans for East Main Street. Lembo said East Main Street could still be a valuable asset to the downtown revitalization plan.

"It's an area that would work to the advantage as a gateway to the downtown area and it's certainly in need of rehab," he said. "But how it's going to be rehabilitated is on the shelf."

But, he added, "It's hard to move forward with a Municipal Development Plan unless you have the support of the community."

J. Paul Vance Jr., president of the Waterbury Board of Aldermen, said he doesn't think the New London decision will have much impact on Waterbury — no matter which way the court rules.

Vance said Waterbury is ahead of the curve when it comes to economic revitalization, thanks to the magnet school, UConn and the reopening of the Palace Theater on the horizon. The best way to lure business to Waterbury, he said, is to get people downtown so they can see that it's safe, lively and has plenty of parking.

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