Legal Precedents Against Fort Trumbull Folks — (New London CT) Day, 10/15/04

High Court Wants To Revisit Issue Of Eminent Domain, But Experts Not Sure Why

By Matthew J Malone

To understand how seven Fort Trumbull residents scored a date with the U.S. Supreme Court, one must travel back in time to tattered slums in Washington, D.C., an automobile plant in Michigan and sun-kissed estates in Hawaii.

In 1954, the Supreme Court opened the door for urban renewal, upholding a Washington plan to reduce its slums to dust.

Thirty years later, the court ruled in favor of the Hawaii Housing Authority, which planned to break up highly concentrated land ownership that prevented many residents from owning their own homes.

But this past July, the Michigan Supreme Court overturned a 23-year-old decision that had been consistent with those rulings from the federal Supreme Court. In the original ruling, filed in 1981, the Michigan court had approved of condemning homes so General Motors could build a new plant, ostensibly to provide jobs and tax revenue.

That reversal, several legal experts said, might have pushed eminent domain back to the doorstep of the Supreme Court.

As in the Michigan case, the City of New London argues the public purpose served by redevelopment of Fort Trumbull is the potential growth in tax revenue and employment. A new hotel, office building and Coast Guard museum would serve the community better, the city says, than leaving prime waterfront real estate in the hands of its middle-class residents.

When faced with eviction from their homes, the residents sued the city, arguing that the development benefited a private interest and that the city lacked concrete plans for some of the land it planned to acquire.

The Connecticut Supreme Court ruled in the city's favor. The residents appealed to the U.S. Supreme Court, which decided on Tuesday to hear the case.

In the Hawaii and Washington cases, the justices considered the meaning of the Fifth Amendment, which states that private property cannot be taken “for public use without just compensation.”

Rather than define a public use, however, the court unanimously found that state and local governments, and not judges, had the right to decide what plans were in the public interest.

“Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive,” the court ruled in the 1954 Washington case, Berman v. Parker. “In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation...”

Several law professors specializing in property law were perplexed by the court's decision to take the New London case, given its earlier rulings. Thomas Merrill, a law professor at Columbia University, said that overturning the earlier rulings “would be a pretty dramatic departure from the trends of the last 50 years.”

In addition to leaving the definition of “public use” to the states, the Supreme Court ruled in the Hawaii case that it was also up to legislatures to decide how such plans would be carried out. It did not matter whether a private interest, like a hotel developer at Fort Trumbull, would benefit from the use of eminent domain.

“It is only the taking's purpose, and not its mechanics, that must pass scrutiny under the public use clause,” the court wrote in the 1984 Hawaii case, Hawaiian Housing Authority v. Midkiff.

The Fort Trumbull Municipal Development Plan is an example, several experts said, of a more expansive view of public use and, by extension, the powers of eminent domain born of the Washington and Hawaii cases. Cash-strapped cities competing with suburban and rural areas with more usable land face tough choices when seeking to revitalize their economy, they said.

“Creativity is the order of the day,” said J. Peter Byrne, a professor at the Georgetown School of Law. “What you are seeing is more creativity and maybe more desperation.”

Merrill noted that the use of eminent domain as a means to achieve economic and social growth began far earlier than the quest in Washington, D.C., to clear out the slums.

He said that in the mid-19th century the government supported the damming of rivers to help power the nation's mills, even though the dams would flood private property.

The same went for the Tennessee Valley Authority, which was established in 1942 to support the nation's growing need for power during World War II. After building the Fontana Dam in North Carolina, the Authority sought to take more land to address unexpected flooding that had isolated a nearby residential area.

In a 1946 decision, the Supreme Court affirmed the power of Congress to decide the scope of a project performed for a public purpose. The TVA got the green light to take over more land.

In the Hawaii case, the court reaffirmed and expanded on the standard set by the Washington case. All the justices, excluding one who did not participate, signed on to the Hawaii ruling.

Three current members of the Supreme Court — Chief Justice William Rehnquist and Justices Sandra Day O'Connor and John Paul Stevens — ruled on the Hawaii case. O'Connor wrote the opinion.

“When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings ... are not to be carried out in federal courts,” O'Connor wrote.

As such, legal battles over eminent domain have taken place largely in state courts. States have the right to expand upon the protections granted in the Fifth Amendment. If a state wants to restrict the definition of “public use” to removing blighted areas, it can codify that standard.

From 1954 to 2003, there have been 544 reported appeals in which the question of what is a “public use” was actively litigated and decided, according to two studies. Only 31 were heard in federal courts, the studies found.

The rulings on many of those cases hinge on the Hawaii and Washington cases, several experts said.

In the Washington case, the District of Columbia wanted to take over a wide swath of land and redevelop it to address unsafe and unsanitary conditions. The court ruled that the legislature had the authority to take over properties in the area even if individual buildings did not contribute to the “slum” atmosphere.

In the Hawaii case, the court ruled that if the housing authority said that the redistribution of land served a public purpose, the fact that it would benefit private landowners was irrelevant.

Merrill cautioned against a system that would allow only municipalities to own such developments. In that case, Merrill said, cities would have to take on the financial risk of projects like football stadiums and hotels, rather than be able to transfer responsibility to a private entity.

The experts wondered what prompted the court to take up the Fort Trumbull case and noted the futility of such speculation. The possible reasons are many, they said.

Maybe only four judges — the minimum number required to put a case on the docket — were interested in rethinking previous interpretations. A fifth judge would be needed to overturn earlier interpretations of Fifth Amendment law.

Perhaps they want to reaffirm the ruling in the Washington case or define a stricter “public use” test. The court could also look at the Fort Trumbull case in relative isolation, ruling only on narrow points of law specific to the case.

“The facts matter,” Yale University law professor Robert Ellickson said. “The facts matter a lot.”

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