Eminent domain debate rejoined

Nearly 19 years since Susette Kelo and her fellow neighbors in the city’s Fort Trumbull section of New London began receiving orders that they would have to sell their properties, the debate over the legality and morality of using eminent domain for redevelopment remains the same.

That debate is once again engaged because a bill, introduced by Rep. Tami Zawistowski, R-Suffield, which would effectively end the use of eminent domain as an economic redevelopment tool, received enough Democratic support in the Planning and Development Committee to move forward in the state legislature. Local lawmakers provided the votes to move the proposal out of committee.

But its prospects for approval, or even getting to a vote in the General Assembly, appear much in doubt.

Republicans see it as a property rights issue. The bill would prohibit state and municipal redevelopment agencies from using eminent domain to seize property for use in a private redevelopment effort.

Many Democrats, on the other hand, fear it would inhibit the ability of struggling cities to reinvent themselves. It could allow, for example, the owner of an abandoned mill to hold out for an inflated payment by the city, in the process blocking a project that could renew a neighborhood.

These are the same issues that confronted the U.S. Supreme Court in 2005.

Kelo was a particularly sympathetic plaintiff. She had fixed up her little home, painting it an adorable pink. This was not the case of a blighted property that was blocking efforts to fix up a neighborhood. Instead, that home and 14 residential properties were simply in the way of the New London Development Corporation’s plans, aided by the state, to completely remake the peninsula with high-end development and in the process boost the city’s tax base

In its landmark 5-4 ruling in Kelo v. City of New London, the majority found that the potential redevelopment of the area for the benefit of the city constituted a “public use” under the Takings Clause of the Fifth Amendment.

It was a decision that outraged citizens across the country, with good reason. It was quite the stretch of constitutional logic to rule that seizing the property of one individual, with plans to eventually turn that property over to another more rich and powerful private interest, constituted a “public use.” A public benefit, arguably, but not a public use. It did not make sense.

In reaction to the Kelo decision, 45 states enacted new restrictions on the use of eminent domain, some with strong prohibitions against the seizing of property for any private development, others with restrictions but not outright bans. The law approved in Connecticut was among the weakest. It forbids the condemnation of property and its seizing through eminent domain for the “primary purpose of increasing local tax revenue.”

It is a close to meaningless law. Property can still be seized for blight elimination or to drive economic development. So, if a city or state redevelopment agency wants to bring the hammer of eminent domain, it will attribute its motivation to those factors, not driving new tax revenue. Of course, if a project is successful, an increase in tax revenue will result.

On the Planning and Development Committee, five local lawmakers, four Republicans and one Democrat, voted in favor of the new bill banning property condemnations and seizures for economic development. They are Sen. Heather Somers, R-Groton; Rep. Doug Dubitsky, R-Chaplin; Rep. Mike France, R-Ledyard; Rep. Devin Carney, R-Westbrook; and Rep. Chris Conley, D-Groton. Dubitsky’s 47th District includes a section of Norwich, while Carney’s 23rd District includes the southeastern Connecticut towns of Lyme, Old Lyme and Old Saybrook.

If their five votes went the other way the bill, approved 15-6, would have died in committee. No local legislators voted against the measure.

Where does Gov. Ned Lamont stand on the matter? He doesn't like the current bill.

"As presently drafted, the bill could place significant limitations on the ability of cities and towns to acquire property for economic development projects," read a statement from the governor's office, issued in response to my question about Lamont's position.

But according to the statement from spokesman Rob Blanchard, the governor is keeping the door open to compromise.

"He will monitor this proposal carefully to ensure an appropriate balance is struck between protecting private property and enabling local governments to leverage private capital to foster economic growth and the revitalization of our cities and towns," read the statement.

What might compromise look like? Rather than an absolute ban, the bill could be amended to prohibit taking active residential or commercial properties by way of eminent domain for economic development purposes, but allow its use to take long-abandoned, vacant properties or empty lots.

The great irony of Kelo is that no new development has taken place on the property since the Supreme Court approved its seizure. Perhaps if the legislature were to approve a law to prevent such a taking again it would lift the curse of Kelo. Then, maybe something will finally happen in Fort Trumbull.

Paul Choiniere is the editorial page editor.

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