Experts agree: Luster is off eminent domain after U.S. Supreme Court ruling on Kelo
Hartford - Legal experts attending a conference Friday titled "Kelo: A Decade Later" concluded that eminent domain is being used less frequently today than it was when the famous U.S. Supreme Court case involving the Fort Trumbull neighborhood in New London was decided.
"We definitely lost in the court of public opinion," said David Parkhurst, who at the time of the Kelo case filed a brief in favor of the City of New London's eminent domain taking on behalf of the National League of Cities. "We were hammered … and it took us by surprise."
Clark Neily, a senior attorney at the libertarian-leaning Institute for Justice who argued on behalf of lead plaintiff Susette Kelo during the Supreme Court case, agreed during a Friday panel discussion at the University of Connecticut School of Law's William F. Starr reading room that the tide turned against using eminent domain to take property for private development soon after the June 23, 2005, decision.
Neily, who lost the court case, called the 5-4 Supreme Court decision in favor of taking property to spur economic development "one of the most reviled decisions" in the history of the top U.S. judicial body. He said several states, including Florida, have passed very strong laws restricting municipalities' power of eminent domain. The change of heart occurred after several Florida cases in which eminent domain laws had been "disgracefully abused," he added.
After losing the Supreme Court case, Neily said his organization decided to focus on state laws, having been given an opening by the high court to fight eminent domain case by case on a grass-roots level. Funded with $3 million in donations by the Castle Coalition, the Institute for Justice combined its legal acumen with a public relations campaign that won over a majority of U.S. citizens and many state legislatures, he said.
'It hurts every time'
"With the exception of New York, every single state … to look at the issue … has resoundingly rejected the U.S. Supreme Court's reasoning," Neily said.
Sitting at a table near the back of the room, Michael Cristofaro, one of the Kelo case litigants, had earlier challenged former New London Law Director Thomas J. Londregan, who argued in favor of eminent domain before the state Supreme Court, on a minor point involving the case. Cristofaro said he came to Hartford to find out if anything had changed in eminent domain law in the past 10 years as a result of the Kelo case.
"It hurts every time I go into that neighborhood now," said Cristofaro, referring to Fort Trumbull. "It hurts to remember what was there."
The New London Development Corp., with the blessing of the City Council, decided to pursue eminent domain in Fort Trumbull when recalcitrant homeowners, led by Kelo, refused to sell their homes to clear the way for an expected hotel and conference center a stone's throw from the Pfizer Global Research & Development headquarters overlooking the Thames River. But after years of fighting homeowners and eventually demolishing many of their homes, the NLDC was never able to put together a development deal for the property.
Property rights important
Today, the barren landscape at Fort Trumbull currently sits as mute testimony to an eminent domain policy that never delivered on its promise.
"All rights are important, and property rights are not a second-class set of rights," Neily said in summarizing his passion for the case.
But not everyone agreed on a blanket policy against eminent domain when hurting cities need an economic infusion.
Debbie Becher, an assistant professor of sociology at Columbia University's Barnard College, said a study she did of property takings for economic development in Philadelphia showed disadvantaged communities earned benefits from eminent domain when abandoned and valueless properties are targeted. It's properties that members of the community are invested in, whether emotionally or economically, that cities need to consider carefully before using eminent domain, she argued.
The Kelo situation is atypical, Becher said, in that it involved a white woman in a well-cared-for home fighting for her right to have the government leave her alone. In most cases, eminent domain is used in down-and-out neighborhoods inhabited by poor minorities, who often do not receive the money they are entitled to, she said.
"Kelo is an outlier case when it comes to the history of eminent domain," agreed Thomas W. Mitchell, a professor at the University of Wisconsin Law School.
He cited a case in Louisiana involving more than 200 buildings that did not garner nearly the attention of Kelo, perhaps because it was in a largely minority neighborhood.
In Connecticut, according to Hartford-based attorney Tim Hollister, eminent domain can be fought on several fronts, including the possibility that a municipality is taking more than it needs or that the use is not for a public purpose. Appeals can be heard on the basis of a property owner not receiving just compensation, he added.
Hollister said a state law passed in 2007 also made the eminent domain process more onerous on cities, because of complex notification requirements and the necessity of paying 125 percent of fair market value to owners of some businesses and homes. The law also states that the primary purpose of a taking for economic development must not be to increase municipal tax revenue or to boost employment.
One of the few attempts to use eminent domain for economic development, Hollister said, occurred in Middletown when a health center in need of more parking attempted a land grab with the city's help. But the city eventually backed down, he said, because new eminent domain law had created a minefield Middletown could not successfully negotiate.
"Eminent domain is a political third rail that is only to be used as a last resort," he said.
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