Urban eminent domain case has implications for farmers — California Farm Bureau Federation, 11/24/04

Press Release

By Robyn Rominger

In a case that has significant implications for farmers across the nation, Farm Bureau has taken a position on an eminent domain case that's being heard by the U.S. Supreme Court.

The case is a situation in which the city of New London, Conn., is exercising its power of eminent domain to take waterfront property from private property owners Susette Kelo and others, and give it to a private commercial entity that plans to develop it into a waterfront hotel, office space, luxury homes and other retail businesses.

The U.S. Supreme Court will decide whether governments may seize people's homes and businesses for economic development projects that create more jobs and increase property taxes.

The American Farm Bureau Federation and about a dozen state Farm Bureaus, including the California Farm Bureau Federation, oppose the taking of the private property by the city of New London for this purpose, and plan to file a "friend-of-the-court" brief stating their collective position.

"This is now at the U.S. Supreme Court and it's the biggest property rights case in a long time," AFBF General Counsel Julie Anna Potts said. "That is very important."

CFBF General Counsel Nancy McDonough is also working on this case.

"This is an extremely important property rights case for farmers and ranchers," McDonough said. "It has significant ramifications with respect to local government's ability to take valuable farmland for the purpose of increasing the tax base."

In terms of the Kelo case, "There are homeowners in a working class neighborhood in New London, Connecticut, whose properties are along a waterfront," Potts explained. "The city has decided that they can increase the tax base and make more money for the city with increased economic development in this area. So, despite the fact that some of the homeowners have lived there for decades and do not want to move, they've decided to exercise eminent domain, take these homeowners' private property, and give this property to a private entity to develop."

The city of New London solicited a private development corporation, New London Development Corp., to assist the city in developing the waterfront.

"The city claimed that the economic development was for a public use," Potts said. "Pfizer Corp., a big pharmaceutical company, was building a big research facility on adjacent property. A significant part of New London Development Corp.'s development activity was to create a development that would complement that facility and provide Pfizer's people a place to live, a place to shop and a place to park while visiting Pfizer's facility and give business people a place to stay in a waterfront hotel. And all of this, of course, was a whole lot more money to the city of New London."

She noted that "a bunch of homeowners gave up right away and said, 'We'll take the money that you're offering us and go away,' but there are a few hold-outs. The named plaintiff is Susette Kelo. She bought this little house, likes it and its location, and wants to stay there, so she's been the poster child of defending private property rights."

Originally the case went to a Connecticut state trial court, which ruled in favor of the property owners. Following an appeal, the case went to the Connecticut Supreme Court, which ruled in favor of the city of New London. So the property owners filed a petition for review by the U.S. Supreme Court, which accepted the case for review.

"Now they're going to hear about why this state Supreme Court decision should be reversed or upheld," Potts said. "We believe it should be reversed and are supporting the private property owners. So we're going to file our brief at the same time as the Kelo petitioners are filing their opening brief. We're going to advance our arguments on behalf of agriculture and say that, as a matter of law and a matter of good public policy, individual property rights, including the right to feel secure in your home, will not be condemned for a purpose such as this. Land available for agriculture is constantly diminishing as it is and the taking of private property for this kind of thing could really deal a tremendous blow to farmers and ranchers around the country if it's upheld.

"I just think this issue is so important to Farm Bureau members that every single Farm Bureau member should watch this," Potts added. "This decision will reverberate around the country."

Farm Bureau opposes the taking of private property for public use unless no possible alternative can be demonstrated.

"The California Farm Bureau moved to protect our members on this type of taking over a decade ago when, along with the Riverside County Farm Bureau, we sued the City of San Jacinto over their attempt to 'redevelop' 2,383 acres of productive agricultural land, most of which was protected by the Williamson Act," McDonough said. "Our Governmental Affairs Division then sponsored a change in California's Redevelopment Law to provide added protection to agricultural land from being included in redevelopment projects."

The AFBF board of directors voted to support the homeowners at its October meeting.

"Shortly after that we sent out word to all of the state Farm Bureaus that AFBF was going to be participating in this important case and invited them to join AFBF in this brief," Potts said. "California Farm Bureau was on top of this right away. They were instrumental in getting the law firm who is going to be filing this brief on behalf of Farm Bureau."

The Los Angeles-based law firm is Manatt, Phelps & Phillips. The firm's attorney for the Farm Bureau is Michael Berger.

"He is highly experienced and knowledgeable in this area of law and has an excellent reputation in handling 'takings' cases, including eminent domain cases, and in fact has argued five such cases before the U.S. Supreme Court," Potts said. "He's a renowned expert in this area and the fact that he's doing this on behalf of Farm Bureau is wonderful and it's all thanks to the California Farm Bureau."

California Farm Bureau Federation: www.cfbf.com

American Farm Bureau federation: www.fb.org