A Landmark Eminent Domain Ruling

 

 

The U.S. Supreme Court has recently rendered several important decisions, none of which raised eyebrows as much as a Connecticut case.  The city of New London had formulated an economic development plan which was intended to revitalize the City and which involved the taking of private properties, and the Court ruled in favor of the City’s redevelopment plan.

 

                We are all familiar with the government’s exercise of the power of eminent domain to acquire property for public purposes such as highways, schools, sewer plants, etc.  But in the New London case the waterfront land condemned is to be used by for private purposes (a  hotel,  conference center, luxury apartments, and a research facility for Pfizer, Inc.) in place of the existing modest residences on the land.

 

                The Fifth Amendment to the Constitution permits the taking of private property for “public use,” and the Court found here that New London is in a distressed economic state which should be helped by the proposed development.  Thus, wrote Justice John Paul Stevens, the entire community will benefit (therefore, a “public purpose”).

 

                Condemnation of property for redevelopment purposes is not new.  Post-war Philadelphia under Mayors Richardson Dilworth and Joseph Clark undertook massive redevelopment efforts.  Some worked well (Society Hill) but others were well-intentioned but embarrassing failures on a grand scale (the several high-rise, low income housing projects throughout the City, all of  which have been recently imploded).  New Haven, Connecticut led all cities on a per capita basis in the 1950’s and 60’s in acquiring federal redevelopment funds with some grim results; one of its failures was the taking of 23 homes and businesses in an ethnically diverse neighborhood in the heart of the City and replacing them with a commercial plaza which was abandoned and ultimately torn down.

 

                It seems that the legal community had expected the Court to put the brakes on takings of private land for private users.   And the vigorous dissents (it was a 5 to 4 vote) indicates just how far the pendulum has swung (away from permitting such condemnation) – – and will probably continue to swing.  This is an area where we may see a reversal in the near future as the membership of the Court changes, as inevitably it will in the next couple of years.

 

                Justice Sandra Day O’Connor, recently retired, who has always been one of the less acerbic members, took off the gloves in this one in a ringing and colorful dissent.  She said, “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.”  What bothered her most is that the beneficiaries of such takings “are likely to be those citizens with disproportionate influence and power in the political process.”

 

                Justice O’Connor was joined by Justices Rehnquist, Thomas, and Scalia.

 

                The Court in its majority opinion did say that there are limits in the condemnation process, that a taking might be so egregious that it would not meet the public purpose test.  Justice Stevens’ opinion holds that condemned property may not be transferred to a private company “under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”  He went on to state that the New London economic development plan was well-formulated and had no illegitimate purpose.

 

                The line between “public” and “private” purpose is not an easy one to draw.  Through the years a large number of blocks of modest homes which have been perceived as “blighted” have been condemned even though the communities affected have objected to the disintegration of neighborhoods where the residents are perfectly happy and families have often been there for generations.  New York City’s Robert Moses took pride in the massive dismantling of vast residential areas through the 1930’s, 40’s and 50’s for purportedly public purposes as a tool of social engineering as described in Robert Caro’s The Power Broker.  Many urban planners seem to be changing their position in this respect as they have seen the long-range deleterious effects of the use of condemnation to disrupt intentionally the natural evolution of urban environments. 

 

                Until the U.S. Supreme Court changes its position on the issue, if indeed it does, condemnees may look increasingly to the state courts for relief, some of which have been more sympathetic to landowners on this issue.  It seems that the final chapter is far from written.

                                                                                                                                                                                                     — Ken Butera