6/18/2007

Eminently Inadequate - Legislature Fails To Prohibit Private Gain In Public Takings: Hartford CT Courant, 6/17/07

Commentary

By David R Cameron

The Connecticut General Assembly has finally gotten around to dealing with eminent domain. It's been three years since the state Supreme Court allowed New London to take 15 residential properties in the Fort Trumbull neighborhood for private development and two years since the U.S. Supreme Court upheld the Connecticut court's decision, setting off a political firestorm across the country.

It was hardly worth the wait. The Democratic-dominated General Assembly finessed the issue. Not surprising, given, on the one hand, the public uproar over what happened in New London and, on the other, the opposition of the Democrat-controlled big cities to any restrictions on their use of eminent domain.

The legislation allows lawmakers to claim they've addressed the public's concerns about eminent domain while leaving intact the ability of municipalities to use it. No wonder it passed with huge majorities in both the House and Senate.

The legislation does include several procedural safeguards in the use of eminent domain. It prohibits the taking of properties primarily to increase local tax revenue (the rationale in New London). It requires a development plan that details the public benefit of the project. It requires local government approval by a two-thirds majority for any taking. And it provides a compensation bonus for properties taken by eminent domain amounting to at least 25 percent more than the average of two appraisals.

But it fails to do what many had hoped - prohibit the taking of owner-occupied homes in projects involving private entities and generating private benefits. Instead, it requires only that the development agency and legislative body of the municipality determine that the public benefits of a project outweigh any private benefits.

The Fifth Amendment of the U.S. Constitution says, in part: "nor shall private property be taken for public use, without just compensation." Justice John Paul Stevens, writing for the majority in the Kelo decision, noted that the Supreme Court long ago moved away from a literal interpretation of "public use" to a "broader and more natural interpretation of public use as `public purpose.'"

He concluded that the New London takings were justified because the city "carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including - but by no means limited to - new jobs and increased revenue. ... that plan unquestionably serves a public purpose ... "

Stevens and the other justices in the majority were naive to assume that, simply because the development plan envisioned public benefits, the project would in fact produce such benefits. As Justices Joette Katz and Peter Zarella and former Chief Justice William J. Sullivan argued in their partial dissent from the state Supreme Court decision, there was no "clear and convincing evidence" the properties actually would be developed to achieve a public purpose.

The new legislation fails to require the development agency and municipality to provide clear and convincing evidence or, indeed, any evidence at all that the public benefits of a project would be realized.

The second flaw in Stevens' decision was its interpretation of "public purpose." By approving the New London takings despite the fact that the hoped-for public purpose would be achieved by private developers reaping private benefits, the court in effect allowed eminent domain to be used for a private purpose, provided only that it also serve a public purpose.

Following that flawed logic, the state's new legislation extends the use of eminent domain beyond projects that have an exclusively public purpose to those that include private purposes and benefits.

In concluding, Stevens noted that nothing prevents states from placing additional restrictions on the exercise of eminent domain. He pointed out that many states had already imposed "public use" requirements stricter than those in federal law.

The Conneticut legislature could have done that. It didn't. Instead, it finessed the issue and left the power of municipalities to use eminent domain intact.


Hartford CT Courant: http://www.courant.com

David Cameron teaches political science at Yale: david.r.cameron@yale.edu