New London Plaintiffs Get Day in Court on Eminent Domain: Commercial Property News, 2/22/05

By Therese Fitzgerald

United States Supreme Court justices showed skepticm today for the plaintiffs’ position as they began their review of an eminent domain case in New London, Conn.

According to Associated Press reports, Justice Ruth Bader Ginsberg noted that the properties in question were being seized not just for tax revenue but to boost the local economy and provide jobs, while Justice Sandra Day O'Connor asked if the plaintiffs were petitioning the Court to "second-guess" eminent domain.

In the case of Susette Kelo, et al v. City of New London, Conn., et al., The Connecticut Supreme Court found it to be constitutional for the New London Development Corp. to condemn the homes of the plaintiffs — a group of homeowners who refused to sell — for the purpose of economic development. A private developer wants to build a waterfront hotel, conference center, office space and luxury condominiums in the Fort Trumbull neighborhood, near a new Pfizer plant.

The fifth amendment to the Constitution gives governments the right to seize private property for public use in exchange for just compensation. And it is the compensation, rather than the government's right, that is typically argued in court.

But, recently, as governments have become more aggressive in taking property for economic development purposes, private parties are arguing the government's rights to eminent domain and some are winning. Last July, in a legal decision that is impacting other decisions, the Michigan Supreme Court reversed a key 20-year-old decision in County of Wayne v. Hathcock. The court had previously upheld that it was a proper public use for Wayne County to clear an entire Detroit city block and turn it over to General Motors Corp. for an auto plant.

"It's a fundamental issue about under what circumstances the government has the right to take private property," said Caroline Harris, a land use attorney with Jenkens & Gilchrist P.C. "I hope the Supreme Court confronts the issue head-on."

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