Groups Back NLDC's Eminent Domain — The (New London CT) Day, 1/25/05

Cities, States File Briefs For Case In High Court

By Ted Mann

A broad range of states, cities and economic development groups have asked the U.S. Supreme Court to uphold the New London Development Corp.'s use of eminent domain at Fort Trumbull as a proper use of the government's power to seize private land.

Among the groups coming to the defense of the city and the NLDC, in friend-of-the-court briefs filed last week, were the National League of Cities and International Municipal Lawyers' Association; attorneys general from 13 states and the District of Columbia; and the Connecticut Conference of Municipalities.

CCM assembled a coalition of more than 30 other state municipal associations to argue that "the Fifth Amendment does not prohibit the State of Connecticut from empowering a distressed municipality to use eminent domain to assemble small urban parcels into a unified package suitable for modern economic development."

The briefs were filed as attorneys for the NLDC and the city prepare to defend their condemnation of 15 properties at Fort Trumbull, where the city hopes a planned hotel, office and residential development will generate much-needed tax revenue for the city.

The seven property owners have appealed the city's efforts to seize the land to the nation's highest court, arguing that the economic development proposals do not represent a proper "public use" for their land, and asking the court to require more stringent judicial oversight of eminent domain applications.

Oral arguments in the case, known as Kelo v. New London, will be heard by the justices Feb. 22.

A slew of advocacy groups filed amicus curiae briefs on behalf of the Fort Trumbull property owners, and by Friday a similarly large group had leapt to the city's defense, depicting eminent domain as a harsh but necessary remedy for urban woes.

"The assembly of urban lands for economic growth is a 'public use,' as it eliminates the accretion of small parcels that has acted to hinder old cities like New London from competing in the market for economic development projects," attorneys for CCM and 32 allied organizations wrote. "...As such, it plainly falls within the police powers of the State of Connecticut, which has determined that its municipalities need the power to assemble lands to create developable urban parcels that the market itself has been unable to supply."

The briefs argue that eminent domain is an invaluable tool for cities and states trying to further redevelopment plans, or, as in New London's case, to boost a sagging tax base.

"We've focused on both New London and the broader question ... of the importance of economic development to municipalities, especially in Connecticut," said Allan B. Taylor, an attorney at Day, Berry & Howard in Hartford, who wrote the CCM brief.

Attorneys from the Institute for Justice, a public-interest firm representing the property owners, have said taking land purely to bolster private business - even to improve the city tax base - is unconstitutional, and have criticized the NLDC's development plan as speculative and vague.

CCM's lawyers reject that assertion, as the NLDC and the city did in their own brief, and warned that asking the courts to make decisions on the specifics of eminent domain uses, as the institute suggests, would give the judiciary a responsibility intended for legislatures.

"The appropriate authorities looked at that question and reached a reasoned judgment that the benefits would probably be realized and that should be sufficient," Taylor said.

Also filing a brief were the American Planning Association, the group's Connecticut chapter and the National Congress for Community Economic Development, who argued that the property owners would hurt efforts to develop urban plans by restricting eminent domain seizures to blighted properties.

"The planning association and the congress ... are not particularly eager to engage in eminent domain, nor do they think it should be the first option of local governments," said Tom Merrill, a professor of law at Columbia University who wrote the brief for the groups. "But they think it's an important power to have in the mix of things. Severely limiting it ... could distort the process of sound planning."

Among the other organizations filing briefs in support of the city and the NLDC were: the City of Baltimore; the California Redevelopment Association; the City of New York; the New York State Urban Development Corp.; the Massachusetts chapter of the National Association of Industrial & Office Properties; and a group of 13 law professors.

The Institute for Justice and the property owners have until Feb. 11 to submit reply briefs to the court.

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