Eminent domain proposal may be illegal, lawyer says: Stamford (CT) Advocate, 10/25/05

By Peter Davenport and Brian Lockhart

A proposed ordinance to ban Norwalk's ability to seize private property for economic development is illegal and would "likely expose the city to substantial damages" if passed unchanged, the city's attorney said yesterday.

Corporation Counsel Louis Ciccarello's six-page opinion cautioning the Common Council was issued on the eve of tonight's expected vote on the proposed ordinance to restrict use of eminent domain.

Democratic Councilman Michael Coffey, author of the ordinance, said Ciccarello's opinion, coming 24 hours before "one of the biggest votes the council will be faced with," is a ploy by opponents to "obstruct a vote" tonight.

The council is scheduled to vote on the proposed restrictions at a meeting beginning at 8 p.m. at City Hall.

After a public hearing last week, the council's Ordinance Committee passed the measure, 4-0.

A poll last week of the Common Council's 15 members indicated they were divided on whether to support it in some form or vote against it.

Mayor Alex Knopp and other Democrats, who control 13 seats on the council, were in a closed-door caucus last night to discuss the ordinance and other matters and could not be reached for comment.

Coffey's proposal would restrict Norwalk's use of eminent domain to three areas: construction of public facilities, such as schools or roads; preservation of open space; and protection of health or safety.

But Ciccarello wrote in his opinion that the ordinance, as approved by the Ordinance Committee, would be illegal because it falls outside the council's power under the city Charter, and "it conflicts with and frustrates existing state statutes."

Ciccarello said the ordinance does not make clear whether the local law would apply retroactively to projects now under way that do or could involve eminent domain.

"This is critical because the city and the Redevelopment Agency have an existing land disposition agreement (LDA) with the developers for the Reed-Putnam project, and are negotiating LDAs in conjunction with the West Avenue and Wall Street projects," Ciccarello wrote, referring to three plans to allow developers to remake once-blighted parts of Norwalk.

If the ordinance applied to those projects, Ciccarello wrote, "then the developers would likely have substantial claims for breach of contract" against the city.

Ciccarello said Norwalk is awaiting a ruling from the Connecticut Supreme Court on whether the Redevelopment Agency can seize the Maritime Motors property — a crucial piece of the Reed-Putnam plan located on West Avenue.

The ordinance could undermine a decision in favor of the city and lead to "an immediate lawsuit," he said.

But Coffey said yesterday the ordinance would not affect projects in which land disposition agreements have been signed.

He also said he was "baffled" and "flabbergasted" that he had not heard concerns about the legality of his ordinance sooner, noting that a city attorney, Katherine Lasberg, attends his Ordinance Committee's meetings each month.

Lasberg has attended discussions and public hearings of Coffey's ordinance, and the councilman said he "assumed" Ciccarello's office had reviewed it.

"There has never been any comment made to me about the legality (or) wording of it," he said.

Ciccarello, in an interview late last week, said it is up to council members to request such action by his staff.

Council President Fred Bondi, who has expressed concerns about the ordinance, requested the opinion last week.

The local re-examination of eminent domain laws follows the Kelo vs. New London controversial ruling, in which the U.S. Supreme Court narrowly supported efforts by the city of New London to give 15 homes to a private developer to build upscale housing, offices and a marina.

Coffey said that "hundred of municipalities" have passed ordinances restricting takings by eminent domain.

Stamford Advocate: www.stamfordadvocate.com