By Elaine Stoll
New London — Two years to the day since the U.S. Supreme Court upheld New London’s use of eminent domain at Fort Trumbull, the neighborhood’s last residents have left and the economic development project that displaced them is moving ahead.
Susette Kelo, lead plaintiff in the lawsuit Kelo v. City of New London, became the last to turn over possession of her former property last week.
But though they have left the peninsula, the eminent-domain plaintiffs have also left a legacy that is overhauling state eminent-domain laws around the country.
On June 23, 2005, the Supreme Court upheld a government’s right to take private property to make way for private economic development promising public benefit.
The ruling settled the legal issue at the peninsula, but not its fate.
Kelo and the plaintiffs who joined her in the lawsuit remained in possession of their former properties long after the decision, and the redevelopment outlined in the municipal development plan stalled despite the city’s court victory.
A settlement agreement signed one year ago gave Kelo until June 15 to leave the Fort, and she spent the day before that with the pink cottage she fought to save.
“We all miss our homes. We all miss living here,” she said, looking at a hilltop house surrounded now by a few vacant buildings and the quiet of a neighborhood razed. “We did what we thought was right. We can walk away with our heads held high.”
The house will be spared demolition and moved to Franklin Street in an effort funded by the Institute for Justice, which represented the Kelo plaintiffs in their lawsuit against the city.
Plans for the relocated building, including its ownership and use, aren’t definite, Institute for Justice Senior Attorney Scott Bullock said. A plaque is certain, a listing on the National Register of Historic Places possible, and any occupancy still to be determined.
Right now, Bullock said, the focus is on preserving the building and removing it from Fort Trumbull, a project for which the NLDC has granted an extension.
The next 12 months will bring several redevelopment project milestones.
The Coast Guard Foundation will commence its public campaign to raise funds for a new national museum on the Fort Trumbull waterfront within a year, and plans for the $50 million building will move toward the planning and zoning approval process.
Developer Corcoran Jennison will begin construction in September on luxury apartments and townhouses, the first new buildings to rise on the peninsula after extensive environmental remediation and infrastructure improvements. Just this month, Chelsea and Walbach streets and sidewalks were completed, and soil was graded onto a parcel designated for future office and research and development uses.
And an announcement is expected soon about negotiations to bring the Coast Guard Research & Development Center from Avery Point in Groton to an existing Fort Trumbull office building leased by Corcoran Jennison.
“The project moved slowly through those years of litigation,” NLDC Chief Operating Officer Gregory Coenen said. “Within the past year we’ve kind of broken free, and we’re genuinely moving forward.”
•••••The Kelo plaintiffs said they look back on their unsuccessful fight to remain at Fort Trumbull knowing they’ve nevertheless made it harder for local governments to seize private homes and businesses elsewhere for economic development purposes.
“It is some comfort knowing across our nation other states are doing something to protect the right to own your own property,” said Michael Cristofaro, son of plaintiff Pasquale Cristofaro. “We’ve accomplished what we set out to do: Make sure this doesn’t happen to anyone else. If one person can stay in their home because of what we did, we won.”
Public outrage met the Supreme Court’s finding two years ago that economic development and the jobs and taxes it brings constitute a public purpose for which a city may constitutionally exercise eminent domain. A wave of state statutes and voter initiatives that followed has imposed limits on condemnation powers that the high court declined to mandate.
Striving to strike their own balance between government authority and the rights of individual private-property owners, states have arrived at a diverse set of solutions.
Some reforms restrict the types of property that can be taken, such as private, single-family houses, said Dwight H. Merriam, partner at Robinson & Cole LLP in Hartford and co-editor of the book “Eminent Domain Use and Abuse: Kelo in Context.”
Other reforms refine the approval procedures for eminent-domain takings, Merriam said. A third category of reforms requires compensation to the owners of properties taken be greater than their fair market value.
According to the Institute for Justice, 41 states have strengthened restrictions on eminent domain in the two years since the Kelo decision. The organization counts Connecticut among the nine states that have not.
The General Assembly passed a bill this session that would revise the process by which a municipality uses eminent domain to take property. A municipality would be required to affirm that public interests in a proposed project outweigh private benefits; to approve of takings with a two-thirds vote of the legislative body; and to provide the owners of land, homes and businesses taken by eminent domain with 125 percent of their market value as compensation. The bill awaits Gov. M. Jodi Rell’s signature.
Even when it takes effect, the legislation — among the most vaguely worded, according to Bullock — would not prevent takings like those at Fort Trumbull, he said.
Jeremy Paul, dean of the University of Connecticut School of Law and the Thomas F. Gallivan Jr. professor of real property law, defended Connecticut’s bill.
“I thought it was quite sensible and well-crafted,” Paul said. “Anything that requires more careful, reasoned decision-making before a redevelopment agency condemns a house — I think that’s a good thing.”
•••••In the aftermath of the Kelo ruling, some states “overreacted” and took a “meat-ax approach to a more subtle problem,” Paul said.
“They passed rules that were intended to be draconian and will in fact be draconian. They will block projects that would have gone forward in the past” by making it more difficult for cities to assemble properties into developable parcels, he said. “Some urban areas are in desperate need of redevelopment, and eminent domain is sometimes a useful tool,” Paul said.
David S. King, associate dean of Quinnipiac University School of Law, said he sees a different problem with the new restrictions: They don’t fix what bothered people most about the Kelo decision.
“The aspect of Kelo that really hit home with people, if you’ll pardon the pun, is that people’s homes were taken by the government. Secondary, I think, is the issue of homes being taken for economic development. It is still possible, in most jurisdictions, for the government to take your home if it’s for a purpose other than economic development,” King said.
“My question is, what about those people? Does it make any difference if the government goes to Ms. Kelo and says, ‘We’re going to take your property for economic development,’ or, ‘We’re going to take your property for a school?’ ”
The public backlash that followed the Supreme Court ruling made a difference not only in state and local laws, but also limited eminent domain in other ways.
“The reaction to Kelo has chilled the will of government to use eminent domain for private economic development,” Merriam said.
Developers, too, have a diminishing interest in urban redevelopments they might have become involved in prior to the Kelo decision and ensuing public outcry, said John D. Echeverria, co-author of the report “Kelo’s Unanswered Questions: The Policy Debate Over the Use of Eminent Domain for Economic Development.”
“There are an awful lot of developers shying away because they don’t want to get involved in a time-consuming, political mess.”
•••••
National interest in the issue of eminent domain remains strong two years after the Supreme Court ruling in Kelo, and debate promises to carry on for years to come in state capitols, city halls and courtrooms around the country.
“This is not good guys and bad guys,” Paul said. “This is everyone trying to figure out the right balance between things we care about very much. We care about the sanctity of people’s property and homes, and we care about sensible planning, bringing jobs to urban areas, preventing sprawl and environmental damage.”
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