M. JODI RELL – Would limit seizures

In the 18 months since the Supreme Court ruling in Kelo v. City of New London, more than two dozen states have enacted some form of eminent-domain reform. Connecticut could be next.

Gov. M. Jodi Rell planned this week to introduce some ideas for limiting property seizures. Key components of the revisions include emphasizing local control, making sure the “public benefit” component extends beyond increased tax revenue and providing 125 percent of fair-market value to property owners whose land is taken.

In Kelo v. City of New London, the Supreme Court ruled that municipalities, such as New London, had the right to use eminent domain to seize private property for economic development projects. The court’s vote was 5-4.

At the time of the ruling, then Justice Sandra Day O’Connor expressed concern about the broad interpretation of a given project’s “public benefit.”

In her dissenting opinion, she wrote that “nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side effects are enough to render transfer from one private party to another constitutional, then the words ‘for public use’ do not realistically exclude any takings, and thus do not exert any constraint on the eminent-domain power.”

That was the fear that prompted other states across the country to reform their eminent-domain rules. Since the Supreme Court ruling, 25 governors have signed eminent-domain reform legislation, according to the Institute for Justice, the civil liberties law firm that represented homeowner Susette Kelo. Last November, voters in 10 states approved constitutional amendments that put stricter controls on eminent domain.

Rell’s proposed legislation would require that the municipality’s legislative body approve the seizure by a two-thirds majority vote. In addition, there is a two-part test in making sure the seizure fits with the local conservation and development plan. One, the current use must be determined to be incompatible with the local development plan, and, likewise, the proposed use must be consistent with the plan.

‘More Credence’

Jim Gibbons, a land-use specialist at the University of Connecticut Cooperative Extension System, said he likes the local control elements of the reform. In particular, he appreciates the emphasis on the locally developed conservation and development plans, which are basically the municipalities’ own visions for local growth.

“Pieces of legislation like this are giving it more and more credence,” Gibbons noted. And from the legislators’ perspective, he added, the proposal says that “if we’re going to send money into this town, we know it has the support of the people.”

Matthew Keifer, an attorney specializing in land-use issues at Goulston & Storrs in Boston, said he agrees that eminent domain’s use should be consistent with the local development plan. He also supports the idea of requiring the public benefit to go beyond an increase in tax revenue.

But getting a local legislative body to approve a seizure by a two-thirds vote could become a major obstacle, he said, as could requiring the property owner to receive 125 percent of the fair-market value.

Speaking of Rell’s proposals for reform, Keifer said, “Each one by itself doesn’t seem to be insurmountable. But the combined effect of having to meet all four could mean eminent domain for economic development comes to a halt.”

But before that happens, the bill will have to get through the General Assembly.

Asked about the likelihood of that happening, state Sen. Andrew McDonald, D-Stamford, said, “It’s an issue that needs to be addressed. But it’s not the most pressing issue affecting hundreds of thousands of people on a daily basis.”

Some of the top priorities now include energy costs, health care costs and property tax issues, he said.

McDonald, who is co-chairman on the Judiciary Committee, said the time to tackle eminent-domain reform came last year, when his committee and the Planning and Development Committee had held numerous hearings on the matter.

That process culminated in a bill amendment containing the same reform proposals Rell is now putting forward, McDonald said.

“She lifted all the concepts from that amendment,” he said. A copy of that amendment, drafted in a legislative session in February 2006, is posted on the General Assembly’s Web site and supports McDonald’s claim.

The amendment, however, failed to get enough support to move out of the Senate.

“This was an issue where people had widely divergent viewpoints,” McDonald said.

Asked if this latest round of proposed reform will gain any traction, he replied, “It’s possible. I wish the governor was as engaged in 2006 as she appears to be now.”