Eminent Domain Ordinance Aired by RTM: Fairfield CT Citizen-News, 10/25/06

By Holly M. Pullano

Although no vote was taken on the matter, the pFairfield CT] Representative Town Meeting on Monday engaged in a discussion regarding the possible adoption of an eminent domain ordinance.

Eminent domain is the power of the state to take private property without the owner's consent for public use. Recently, the term "public use" that generally guided eminent domain decisions was expanded to include private development. This was effectively changed in Kelo v. New London when the U.S. Supreme Court in June 2005 allowed a private developer in New London to seize private property in order to build a hotel, which the city said would increase its tax base.

According to RTM Moderator Joel Green, Monday's discussion was the first time that members had the opportunity to hear and consider the ordinance, which is sponsored by James Millington, R-1. The ordinance is co-sponsored by Michael Hahn, R-1; Alexis Harrison, R-2; Martha Sue Eckert, R-3; Marc Montanaro, R-3; Bryan LeClerc, R-9; Harry Ackley, R-4; Charlene Lebo, D-5; Brian O'Gara, D-5; Julie Powers DeMarco, D-6; and Patti Dyer, D-6.

According to the proposal by Millington, the ordinance, if adopted, would "prohibit acquisition of certain property by eminent domain for privately held or controlled economic development purposes." If adopted, the proposed ordinance would state the following: "The Representative Town Meeting of the Town of Fairfield respects the rights of its citizens who own and reside in residential real property; and believes that a primary responsibility of government is to protect private residential property and home ownership."

The ordinance, if adopted, would go on to state that the RTM "views the United States Supreme Court's decision in Kelo et al. v. New London et. al. as a threat to citizens of the Town of Fairfield who own residential real estate and live in their homes."

The Kelo decision effectively gives municipalities and the state significant power to take private property for private development under the public use doctrine.

The intention of the proposed ordinance is "to prevent the application of the Kelo decision in the Town of Fairfield by prohibiting the acquisition of certain owner-occupied residential real property by eminent domain," the document continues.

According to the proposed ordinance, this would include the acquisition of residential real property by eminent domain "for use in a municipal development project where the property would be privately owned or controlled or where the process would result in the homeowner losing their home."

During Monday's meeting, Millington addressed RTM members and urged them to support the ordinance as written. "This ordinance is fairly straightforward and provides the basic protection to homeowners," Millington said. "By enacting this ordinance we are sending a clear message that we have no intention of doing this."

"I think we all support senior and affordable housing, but not by taking someone else's home to do it," Millington added.

During the meeting, First Selectman Ken Flatto explained his viewpoint on the issue of eminent domain. "I could never support taking a private home," Flatto said. "I don't see us [the town] ever doing that regardless of any ordinance, and I want to reassure anyone that might think that may be a possibility."

But Jeffrey Steele, R-2, said that regardless of whether the town supports or objects to eminent domain, the RTM should take action in order to ensure protection of the town's residents. "We say it's never going to happen, but let's back it up with action by having a protection zone to never let this happen," Steele said. "The ordinance is in place by other towns, and there's no reason why we can't have it here. Let's be on the leading edge of protecting our town."

At that point, Robert Greenberger, D-8, addressed the RTM, stating that he would like to see the document be referred back to the Legislation and Administration Committee so that the language could be revised. "If we're going to do this, let's do it right," Greenberger said, adding that "the language might need to be tightened up."

Millington then spoke again, explaining that prior to his distribution of the proposed ordinance, he had thoroughly researched the matter and compared the document to neighboring towns that had adopted similar eminent domain ordinances. "Basically, this ordinance is a mirror image of the one that passed in the city of Milford," Millington said.

Millington then explained that the proposed ordinance had been distributed to the RTM in July, giving the members adequate time to review the document and make their suggestions for revising it. "We had a lot of time to look at this, and this ordinance as written came under a great deal of scrutiny and debate in Milford," Millington said. "I don't think this needs further interpretation. Taking this back to the subcommittee will just delay adoption of this."

Several other members agreed with Greenberger's motion to send the proposed ordinance back to the committee, but a motion to do so failed by a vote of 15-27; two members abstained.

Several members, including Martha Brooks, D-8, and Heather Dean, D-4, also told the RTM that Assistant Town Attorney Eileen Kennelly was in the process of researching the ordinance as proposed in order to answer questions members may have.

Kennelly said yesterday that she is in the process of compiling "as much input as possible" in relation to the ordinance, which will be presented to members during their next scheduled committee meetings in November.

When asked whether adoption of the ordinance was an urgent matter, Kennelly replied that it was not since the town "has no plans whatsoever" to become involved in an issue regarding eminent domain.

Members are scheduled to discuss and possibly vote on the proposed ordinance at their next scheduled meeting at Osborn Hill School on Nov. 27 at 8 p.m.

Fairfield CT Citizen-News: http://www.fairfieldcitizen-news.com