Eminent Domain Defended In New Brief — The (New London CT) Day, 1/22/05

Attorneys claim Fort Trumbull property seizures constitutional

By Ted mann

Attorneys for the New London Development Corp. and the city argue in a new filing with the U.S. Supreme Court that the use of eminent domain to seize property for commercial development at Fort Trumbull is constitutional and in keeping with the prior use of state power.

In a brief submitted Friday, the attorneys dismissed the claims of seven Fort Trumbull property owners who had argued in an appeal that allowing the city to seize land for private development violated their rights under the Fifth Amendment and would allow the government to seize homes for essentially speculative development projects.

The attorneys called such fears "Chicken Littleism" and asked the court to reject the petitioners' calls for greater scrutiny by the judicial branch of eminent domain use, saying the courts had traditionally deferred to legislative bodies on the issue.

The property owners, with the assistance of the Institute for Justice, a public-interest law firm devoted to fighting use of eminent domain, have won a hearing before the high court on whether, as they argue, the city's plans violate the Constitution's "takings clause" because the NLDC is seizing the lots for private commercial development in an effort to invigorate the city's anemic tax base.

The city attorneys countered Friday that property seizure in an attempt to improve the city's economic development — even indirectly, through spurring private growth — is as much a public use of eminent domain as when the land is used for reservoirs or railroad tracks.

"Such holding is no less valid merely because the economic improvements in question will be achieved by allowing private entities to lease the property taken through eminent domain," the brief said. "The principal focus of the public use equation has always been whether the taking will produce a significant benefit to the public and not the means by which that benefit comes into being."

Opponents of the Fort Trumbull redevelopment, which would put a hotel, offices and luxury apartments near the Pfizer Inc. complex, have said that any potential benefit for the city is purely speculative, and that the primary beneficiary will be Pfizer, the pharmaceutical company, itself.

Not true, the city's attorneys said.

The need for development in the city is "undisputed," according to the brief, as a result of "staggering economic woes," including high unemployment, a declining population and the loss of the Naval Undersea Warfare Center in 1996.

Despite what they called "quibbles" from opponents of the NLDC's development plan, the brief argues that there is "more than a reasonable likelihood that the projected benefits of the (plan) will come to pass and that the proposed takings are therefore necessary to the economic rejuvenation of New London."

"On the specific facts of New London, there's enormous evidence of careful municipal planning and evidence of the particular economic benefits that are going to come out of this plan," said Daniel J. Krisch, an attorney representing the NLDC. "What's being done by the city has a really clear relationship ... with the stated public goal."

The attorneys also cited a lower court's finding that "the record clearly demonstrates that the development plan was not intended primarily to serve the interests of Pfizer, Inc., or any other private entity but, rather, to revitalize the local economy ..."

Attorneys at the Institute for Justice said the NLDC's statement to the court was roughly what they had expected.

"There really weren't any surprises in the brief," said Scott Bullock, the attorney handling the property owners' case, which is known as Kelo v. New London.

"I think the fundamental problem with their brief and their position is that they really do not recognize any constitutional limits on eminent domain for private parties," Bullock said Friday, after reviewing a copy of the NLDC brief. "They essentially say that if the government jumps through the necessary hoops, then they can take your home, they can take your business and give it to another private party in the hope that the trickle-down benefits from that private party will benefit the city."

While the NLDC attorneys say their counterparts "prophesy a world in which churches are replaced by Walmarts (sic)," and call that view "cynical," Bullock said he wasn't so sure.

He hadn't heard of any Wal-Marts, Bullock said, but "they've certainly been after churches for Costcos and Ikeas. This is a very real threat that property owners are under."

The institute's attorneys will start work immediately on a reply brief, due Feb. 11, in advance of oral arguments Feb. 22.

Friday also was the deadline for amicus briefs on behalf of the city and the NLDC, and the city's attorneys hoped to stack up nearly as many as the 25 filed on behalf of the Institute for Justice.

Connecticut Attorney General Richard Blumenthal weighed in on behalf of the state, calling eminent domain a power eight centuries old and vital to the state's well being.

"The delicate, difficult balance between the rights of private property owners and the larger public was rightfully and responsibly considered in this case - both by governmental officials and the courts," Blumenthal said in a written statement. "Regional economic hardship requires that government have the right and power to foster recovery."

In a draft of his brief, the attorney general argues that the challenge to the NLDC is a challenge to the state's primary strategy for fighting economic stagnation in its cities.

Among the others expected to file briefs, according to Krisch, were the National League of Cities, Boston Redevelopment Authority, the Empire State Development Corp. and a group of 13 professors specializing in property law.

"Obviously," Krisch said, "the cities have a great deal at stake in what's going on here."

The Day: www.theday.com