A Value Proposition: Hartford CT Business, 9/10/07


The theory of eminent domain is a laudable one: governments must have the ability to acquire private property for a greater public good. Unfortunately, government actors can’t seem to stop behaving like Snidely Whiplash, egotistically running around trying to snatch land with little more justification than an evil chortle.

Connecticut Superior Court Judge William T. Cremins just put the kibosh on a particularly insidious bit of socialism in Branford. Back in 2001, Thomas Barbara and Frank Perotti Jr. owned a 76-acre undeveloped parcel on Tabor Road. More than a decade before, the site had been approved for 298 residential condos, but they were never built. With approval in hand, however, the pair put the land up for sale, and a development company bit. New England Estates ponied up a $10,000 a month option, in order to eventually buy the property for $4.75 million.

In spring of 2003, New England Estates proposed building affordable housing at the site. But the town now claimed environmental contamination, issued a notice of condemnation in December of 2003, and took the property by eminent domain in January of 2004. Its plan was to keep the land vacant.

But since the town had already approved one big development there, the owners’ appraiser estimated the fair market value of the site at a little more than $6 million, using the “highest and best use” method, which assumes property will be put to its most productive purpose. Branford’s appraiser didn’t see the same thing. He saw vacant land that was going to stay that way. He valued the acreage at $770,000.

Even if Barbara and Perotti’s appraiser was too high, the pair had a credible buyer willing to pay $4.75 million. The town’s sudden, surprising and swift taking was a high-handed attack on development.

In order to stave off revolution, we must believe that our government intends us no harm. That’s not to say that the end result of government action doesn’t ever inflict damage. But the final action, good or bad, should be the end result of good intentions. Yet in the Branford case, town fathers set out to knowingly take this property by means that certainly smell fraudulent.

Branford needed a big gun. It fabricated one in the claim that the land was environmentally impaired — a health hazard, in other words — that needed to be acquired by eminent domain to protect town residents. Once in the municipality’s hands, the land would be left to remain open space.

There was another reason: the property abutted the former town landfill. Not really knowing the extent, if any, of any leeching from the landfill to the ground nearby, the town didn’t want to risk future liability claims — nor did it want to live up to its responsibility and do what was necessary to prevent any future contamination.

But the rightful owners of the Tabor Drive property wouldn’t let the falsity stand — nor were they keen on having their pockets picked in the process. They turned to the courts for help.

They’ve won Round 1. Judge Cremins ruled that there is no basis for the town’s appraisal, and he awarded the property owners $4.6 million, plus interest. He also found no credible evidence of contamination, and even opined that the site would be good for housing development. That bodes well for his impending ruling on the legality of the taking at all. New England Estates wants damages for being robbed of its ability to develop the land it thought it was buying.

Eminent domain remains a tool for towns and cities. But it should be a fine scalpel, used sparingly and surgically only where necessary. In Branford, it became a chainsaw, leaving everyone in its path injured.

Hartford CT Business: http://hartfordbusiness.com