Friday, June 24, 2005

5 to 4 in the Supreme Court, THE DAY FREEDOM DIED

A SIGN painted on a Smith Street apartment building in New London opposes the city�s plan to use eminent domain in the Fort Trumbull neighborhood. The sign is addressed to an admiral with the Coast Guard, which had considered using the property. Above the sign, Efrain Caraballo looks out from the window of his second-floor apartment.

Jun. 23, 2005
Copyright 2005, Hartford Courant
Posted by Hello

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WESLEY HORTON, the attorney representing New London and the New London Development Corp., speaks to reporters on the steps of city hall after the high court�s ruling was announced Thursday. Horton said the ruling is vital to economically distressed communities nationwide.

Jun. 23, 2005
Copyright 2005, Hartford Courant
Posted by Hello

BILL VON WINKLE stands in the street in front of two of the properties he owns in the Fort Trumbull section of New London. The U.S. Supreme Court has ruled that certain properties in the Fort Trumbull area could be seized by New London by eminent domain.

Jun. 23, 2005
Copyright 2005 Associated Press
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OUTSIDE HER New London home � which won't be hers much longer � Susette Kelo reacts Thursday to the U.S. Supreme Court's ruling allowing the city to use eminent domain to evict remaining homeowners in the Fort Trumbull neighborhood. The court said the city's economic development plan for the area justifies such action.

Jun. 23, 2005
Copyright 2005, Hartford Courant

Posted by Hello

The Full Text of the Supreme Court Decision PDF download

5-4, For The Takings High Court: City Can Seize Homes To Boost Economy
June 24, 2005 By LYNNE TUOHY, Hartford Courant Staff Writer

A sharply divided U.S. Supreme Court Thursday expanded the power of government agencies to seize homes for economic development, clearing the way for the eviction of seven tenacious families on New London's Fort Trumbull peninsula.

The court ruled 5-4 that a city's quest for increased tax revenue and employment justifies the taking of even non-blighted property and satisfies the "public use" requirement of the Constitution's takings clause, even if the property is turned over to a private developer.

Dissenting justices and critics say the ruling leaves practically every property owner vulnerable to condemnation proceedings and voids the very constitutional provision on which it turns.

Justice Clarence Thomas, in a separate dissent, noted that the court enforces the sanctity of the home in search and seizure cases, then "tells us we are not to `second-guess the city's considered judgments' when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes.

"Something has gone seriously awry with this court's interpretation of the Constitution," Thomas wrote.

Kelo vs. New London is the court's most significant ruling in half a century on eminent domain - the taking of private property for public use.

But its one-vote margin, with 85-year-old Justice John Paul Stevens writing for the majority, makes it among the most fragile - highly vulnerable to reversal with a change in the court's membership.

"I don't think anyone can regard this decision as putting this issue to bed," said Timothy Hollister, a lawyer who specializes in eminent domain cases for the Hartford law firm of Shipman & Goodwin.

"These issues will continue to be in play for years to come."

That is scant comfort to lead plaintiff Susette Kelo, a nurse who has been fighting tooth and nail to keep her home overlooking the Thames River since officials tacked a condemnation notice to her door in November 2000.

Or to Matt and Sue Dery, who have long agonized that every holiday and anniversary in the house they restored with their own hands could be their last.

Or to Matt's mother, Wilhelmina Dery, 87, who was born in the house where she still lives.

"They're going to have to drag me out of here kicking and screaming," Kelo said.

Copyright 2005, Hartford Courant
Posted by Hello

"It's a sad day for us and for regular people everywhere across America, because you better believe if the rich developers can do this to us, they can do it to anybody."

The Kelo case is the first in which the high court wasn't faced with glaring conditions that posed a threat to public welfare and warranted the taking of private property in the first place -such as severe blight in Washington, D.C., or concentrated land ownership in Hawaii.

"Those who govern the city were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference," Stevens wrote.

He was joined by Justices Anthony M. Kennedy, David Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

A jubilant New London Mayor Jane Glover said the ruling would help lift the city out of its economic morass.

"The people who live in New London know we are strapped for money," Glover said.

"We see this as a way to raise revenues for the city."

The homes the New London Development Corp. condemned were targeted because Fort Trumbull sits alongside the site where Pfizer Inc. built its sprawling global research and development facility, which opened several years ago.

The economically distressed city saw a boon in leveling the modest middle-class homes to make way for a hotel and conference center, upscale housing and offices. It designated the quasi-private New London Development Corp. to be its designated development agent.

Although the redevelopment project would not be for "public use" in the literal language of the takings provision of the Fifth Amendment to the U.S. Constitution, the public would benefit through increased tax revenue and jobs, the city argued.

The Connecticut Supreme Court agreed, ruling unanimously 15 months ago that enhancing employment and tax revenue in a poor municipality satisfies the "public use" provision.

But U.S. Supreme Court Justice Sandra Day O'Connor, in her dissent, said the majority's ruling Thursday eviscerates the "public use" requirement of the constitution and places virtually all private property in jeopardy.

"Under the banner of economic development, all private property is now vulnerable to be taken and transferred to another private owner," O'Connor wrote.

"Are economic development takings constitutional? I would hold that they are not."

For who among us can say she already makes the most productive or attractive possible use of her property?" O'Connor wrote.

"The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing a Motel 6 with a Ritz Carlton, any home with a shopping mall, or any farm with a factory."

Joining O'Connor in dissent were Thomas, Chief Justice William H. Rehnquist and Justice Antonin Scalia.

The court rejected the homeowners' suggestion that it establish a "bright-line rule" that economic development does not amount to public use, and refused to rule that the development plan can proceed without the seizure of their few remaining homes - 15 properties scattered across the 90-acre area.

The New London Development Corp. obtained and razed more than 100 homes through negotiated deals.Stevens said the court would not "second-guess" the soundness of the city's development plan or the land it needs to carry it out. That the city had a viable plan suffices.

Another provision of the constitutional clause governing eminent domain is that the government agency seeking to take property offer "just compensation" for the property. That was not a point of contention in the Fort Trumbull case: The NLDC did offer the holdouts compensation for their homes, but on principle they chose to fight the takings.

Connecticut law specifically authorizes the use of eminent domain for economic development, but lawyers who have followed the case believe that had little impact on the high court's ruling.

And the court expressed no skepticism about the city's plan to lease much of the property to Boston-based developer Corcoran Jennison for $1 a year for 99 years.

"Quite simply, the government's pursuit of a public purpose will often benefit individual private parties," Stevens wrote.

Attorney Wesley Horton, who argued on the city's behalf before the U.S. Supreme Court Feb. 22, said the ruling is vital to economically distressed communities nationwide. If blight was a prerequisite to the use of eminent domain for economic development, Horton said, then poor and minority communities would be targeted by definition.

Horton emphasized the Fort Trumbull redevelopment is not designed for private benefit.

"This is a reputable developer from Boston, and it's crucial to know the developer is not going to own the property," he said.

"They are going to build buildings at their own cost on the NLDC land, and if they don't do what they're supposed to do, their property is in jeopardy."

Attorney General Richard Blumenthal lauded the ruling.

"The paramount principle is that local officials - not the courts - should determine whether the taking of property serves a significant public interest," Blumenthal said.

Lawyers at the Institute for Justice in Washington, D.C. - a private, civil liberties law firm that represents the Fort Trumbull homeowners - urged citizens nationwide to lobby local legislators for constitutional amendments and laws to safeguard them against Thursday's ruling and the eminent domain abuse it invites.

"One thing the majority stresses which demonstrates its total disconnect from reality is they emphasize that New London had a plan," said attorney Scott Bullock, who worked on the case for the homeowners.

"In every eminent domain abuse case I've seen, there's a plan. To think that is some type of check on eminent domain abuse is preposterous."

Bullock said the Institute for Justice's representation of the homeowners will not end with Thursday's ruling. He said they will even try to persuade city officials to let them stay.

"These people are heroes," Bullock said.

"Susette Kelo and the others are known throughout the country now for standing up for their rights. To let them stay would be a great boon to the city of New London."

Detroit attorney Alan Ackerman last year secured a reversal of a controversial 1981 case in which the city condemned a working-class immigrant community to acquire the land for General Motors. The Michigan Supreme Court recently ruled that taking property for private development does not constitute public use.

"The risk of abuse of eminent domain is frightening," Ackerman said in response to the high court's ruling.

"Everybody's going to have to fear they're going to lose their homes."

Stevens in the majority ruling stressed that "nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power. Indeed, many states already impose `public use' requirements that are stricter than the federal baseline."

University of Connecticut School of Law Professor Jeremy Paul, a land-use policy expert, scoffed at the dire consequences critics of the ruling predict.

"The average homeowner has about as much chance of having a home taken by eminent domain as you do being struck by lightening on a golf course," Paul said.

"I think the worries for individual homeowners are exaggerated."

It does clarify that when a municipality has an economic development plan it thinks will work, it can go ahead and take the property and not be subject to judicial invalidation."

Courant Staff Writer Penelope Overton contributed to this story.

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Added 10 AM EST, June 26, 2005:

Eminent domain: A big-box bonanza?

Court's ruling OKed land grab for business like Target, Home Depot, CostCo, Bed Bath & Beyond

June 24, 2005: 3:20 PM EDT By Parija Bhatnagar, CNN/Money staff writer

NEW YORK (CNN/Money) - The Supreme Court may have just delivered an early Christmas gift to the nation's biggest retailers by its ruling Thursday allowing governments to take private land for business development.

Retailers such as Target (Research), Home Depot (Research) and Bed, Bath & Beyond (Research) have thus far managed to keep the "eminent domain" issue under the radar -- and sidestep a prickly public relations problem -- even as these companies continue to expand their footprint into more urban residential areas where prime retail space isn't always easily found.

Eminent domain is a legal principle that allows the government to take private property for a "public use," such as a school or roads and bridges, in exchange for just compensation.

Local governments have increasingly expanded the scope of public use to include commercial entities such as shopping malls or independent retail stores. Critics of the process maintain that local governments are too quick to invoke eminent domain on behalf of big retailers because of the potential for tax revenue generation and job creation.

The Supreme Court's decision Thursday clarified that local governments may seize people's homes and businesses -- even against their will -- for private and public economic development.
The ruling would seem to offer new opportunities to retailers. However, some industry watchers caution that with Thursday's decision thrusting the eminent domain issue into the national spotlight, companies using eminent domain risk a very public backlash.

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Anonymous Anonymous said...

All the links no longer go to the posts that were intended.

Tuesday, July 24, 2007 6:55:00 PM  

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