4/15/2007

Eminent domain issue in mall case: Bristol CT Press, 4/2/07

By Jackie Majerus

Attorneys for the city and for Ocean State Job Lot argued before the Connecticut Supreme Court Thursday over whether Bristol can evict the Rhode Island-based retailer from the downtown mall.

The case seems to rest on whether the city's purchase of the property amounted to the same thing as use of eminent domain.

In Ocean State Job Lot's lease, it says that if a certain amount of the mall property "shall be acquired or condemned by right of eminent domain for any public or quasi public use or purpose," the landlord may terminate the lease.

The city's position is that the lease allows it to terminate the lease because the city acquired the property for a public use.

But Ocean State Job Lot's argument is that the city did not use eminent domain to buy the mall property and so cannot simply terminate the store's lease.

"This is a contract interpretation case," said attorney Houston Putnam Lowry, who represents the city.

Bridget Gallagher, the lawyer representing Ocean State Job Lot, said the city never used its power of eminent domain when it bought the mall two years ago - and couldn't have at the time, because there was no redevelopment plan for the property.

She said no city board ever passed a resolution to use eminent domain and that no official ever testified that the city intended to use that power.

"No such evidence was ever introduced," Gallagher told the panel of five justices.

The city wouldn't have been able to continue to use Lowry, Gallagher said, if it intended to use eminent domain to take the property, because Lowry also worked for the former mall owners and would have had a conflict of interest.

"The city did not want to use eminent domain," Gallagher said.

At one point during Lowry's argument, Lowry had a somewhat contentious exchange with Senior Associate Justice David Borden.

"Of course the city has the power of eminent domain, once it goes through the formal statutory requirements," said Borden.

Lowry said the city was en route to using eminent domain, having taken the first step, which he said is negotiating for the property. According to Lowry, there isn't any difference between the city buying a piece of property and taking it by eminent domain.

"A vote to purchase is synonymous with a vote to condemn," said Lowry.

Ocean State officials have repeatedly said they want to keep their downtown Bristol location, and John Conforti, the company's chief financial officer, said that is still true.

The store's lease runs until 2014, Gallagher said.

Conforti, who attended the arguments before the Supreme Court, said he was impressed by the session.

"The justices came across as very astute," said Conforti. "This is such a higher level."

Conforti said that Lowry's argument was "fluff" to Gallagher's "fact."

City corporation counsel Edward Krawiecki Jr., who also attended the Supreme Court arguments, said the burden was on Ocean State Job Lot to show why the appellate court ruled in favor of the city.

"The city's case is very strong," said Krawiecki.

But Krawiecki acknowledged that it is "possible" that the Supreme Court will overturn the lower court's ruling.

"It's hard to predict what the Supreme Court will or will not do," said Krawiecki.
It may be many months before there's an answer.

Krawiecki said if the justices do not deliver their ruling by mid-June, it will be at least September before they do.

The city could condemn Ocean State Job Lot's lease instead of pursuing an eviction, Krawiecki said, but he said this route was chosen instead.

"The last administration did not want to condemn," said Krawiecki. When Mayor William Stortz took office, Krawiecki said, the case against Ocean State was already under way.


Bristol CT Press: http://www.bristolpress.com