Bill Would Curb Use Of Eminent Domain: The (New London CT) Day, 2/18/05

GOP Leader Inspired To Act By Situation At Fort Trumbull

By Ted Mann

To Rep. Robert Ward, the Republican leader in the [Connecticut] state House of Representatives, it's pretty simple: the government shouldn't take away your house because someone wants to build a hotel.

No potential economic benefit — not even an infusion of tax revenue in a struggling, cash-strapped city — can justify the use of eminent domain on behalf of a private business. For the second year in a row, Ward has introduced legislation to prohibit the state's eminent-domain law from being used to justify such a taking.

The veteran lawmaker's concerns about the use of eminent domain were galvanized by the controversial redevelopment efforts of the New London Development Corp., which invoked the law to condemn houses in the Fort Trumbull neighborhood, which the city and the NLDC hope to recast as a mixed residential and commercial neighborhood, complete with a hotel and a home for the Coast Guard Museum.

Seven property homeowners have held out, saying the seizure of their homes violates their right under the Fifth Amendment of the U.S. Constitution.

The U.S. Supreme Court will hear oral arguments on the case, Kelo v. New London, later this month, the first time the court has revisited the constitutional limits of eminent domain in decades.

Ward, meanwhile, has set to work on changing the law, with a bill that would ban the acquisition of some residential property by eminent domain if it is to be privately owned or controlled.

The bill would apply to owner-occupied property with four or fewer dwelling units. As currently drafted, it would not be retroactive, and thus would not apply to Fort Trumbull, but Ward said he would consider changing the language if he thought it would draw support.

“It's important because I believe our current law allows individual homeowners to lose their property so that private business interests can make more money,” Ward said. “I find that unacceptable and unjust.”

“If there is a blighted area, I have no objection to the use of eminent domain,” he said. “But you don't destroy non-blighted residential neighborhoods in the name of economic development. The strength of a city is in its people, and you don't make cities stronger by tearing down homes and building hotels.”

Ward's position echoes that of the Institute for Justice, the legal center that will argue the case of the Fort Trumbull homeowners before the court.

It also mirrors similar efforts in states like Colorado and Arizona, said Scott Bullock, the Institute's lead attorney on the case.

“The bills faced vociferous opposition, as I'm sure they will in Connecticut, from government bodies and from developers,” Bullock said in a message left for a reporter.

“In both of those states, watered-down versions of the bills passed,” he said. “... It wouldn't surprise me if the same thing happens in Connecticut on this bill.”

The NLDC and the city have their own vociferous defenders. Among the organizations filing friend of the court briefs on their behalf were development agencies in New York, Massachusetts and California, attorneys general from numerous states, and organizations like the American Planning Association.

Taking private property in order to foster private commercial development is a justified use of eminent domain law, the planning association argues, if the development will plausibly benefit the larger community.

“If you're going to have economic development, somebody's got to come in and assemble the property,” said Patricia Salkin, the chairman of the APA's amicus curiae committee and associate dean of the Albany School of Law.

Proposals like Ward's, she said, “run a significant risk of cutting off government's ability to be a part of the engine of economic development.”

That doesn't mean the proposal is unattractive.

Rep. Ed Jutila, D-East Lyme, said he had followed the New London case from afar, but felt “a little skeptical” that the NLDC's project would result in the boon to the city that the organization claims.

“I'm not sure that the government should be in the business of taking private residential property for other than public use, even though there may be some indirect public benefit that results from it,” Jutila said.

But he was also careful to say that he did not necessarily support Ward's bill, and that he felt sympathy for the city in its efforts to shore up a flagging tax base after years of attrition.

“Towns are out there groping for any means they can find, and I don't fault them for this,” he said.

To push his law through the legislature, Ward will have to focus on the first sentiment more than the second, but it is a feat that he and others say is not out of the question.

A proposal to restrict eminent-domain use “unites people that are typically across the ideological divide,” said Bullock of the Institute for Justice. “It wouldn't surprise me if some Democrats and Republicans who want to protect people's rights joined forces to try to make this happen.”

Ward's similar bill last year easily won approval in the Judiciary Committee last spring, but was killed by one vote in the committee on Planning and Development.

“This is a wild card, and because it's a wild card, the big thing is for him to get the bill out on the floor for a vote,” said Rep. Diana Urban, R-North Stonington, an economist who added that she was, like Jutila, “of two minds” about the proposal.

“The economist would look at this from a utilitarian perspective — the most good for the most people,” she said. “If eminent domain issues don't override ... it is clearly a benefit for the entire area. And I think that's what they're resting their hat on in the Fort Trumbull case.”

But Urban nevertheless seemed to lean toward Ward's position.

“Oftentimes we are using eminent domain to go into neighborhoods that work, that are clear communities that have created a community web, and we ruin them,” she said. “I really think that we have not carefully weighed the issues on a lot of these cases, and sort of just gone ahead with tunnel vision.”

“It's all about getting that bill to the floor,” Urban said, where Ward stands the best chance of getting his colleagues in line behind him. “You just can't draw party lines on this one.”

Ward seemed to expect an uphill battle, but having elicited a promise of a hearing from leaders of the Judiciary Committee, he was confident.

“I think it has a good chance,” he said.

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