As the clock winds down on the current legislative session, Connecticut has yet to join the 40 other states enacting eminent domain reform in the two years since the U.S. Supreme Court’s Kelo v. City of New London ruling.

The Supreme Court’s 5-4 decision – asserting municipalities’ right to use eminent domain to seize private property for economic development projects – created a wave of state reform bills and state constitutional amendments that restricted, to varying degrees, the powers of eminent domain.

In early February, Gov. M. Jodi Rell made a proposal for eminent domain reform in Connecticut. At that time, 25 other governors had already signed eminent domain reform legislation as a result of the Kelo ruling, according to the Institute for Justice, the Virginia-based civil liberties law firm that represented homeowner Susette Kelo. While state Senate bills echoing Rell’s February proposal still await legislative action, another 15 governors already have added their signatures to eminent domain reform bills, according to Scott Bullock, a senior attorney with the Institute for Justice who served as lead counsel for Kelo.

“It’s outrageous,” Bullock said. “Forty states have now passed eminent domain reform legislation and Connecticut has done nothing except [name an] ombudsman.”

But not even the ombudsman is in place yet.

The new position of property rights ombudsman is designed to protect the constitutional rights of property owners in eminent domain cases and other disputes. Earlier this month, Rell nominated Robert S. Poliner of the Middletown law firm Poliner, Poliner, Antin & Cienava Rocco as the first person to serve in that role.

His nomination is subject to confirmation by the Legislature and “we’re waiting for the executive nominations to [be scheduled],” said Rell spokesman Rich Harris. With the legislative session slated to end June 6, the governor’s office would like to see Poliner in place before then.

“That’s certainly our hope,” Harris noted.

Rell’s reform proposal includes changes such as paying owners of seized property 125 percent of its fair market value, requiring a two-thirds majority vote of the local legislative body to approve a property seizure, enabling property owners to buy back their seized property if the new use is not realized, requiring that the seizure is necessary for the municipality’s overall development plan and denying municipalities from using increased tax revenue alone as the “public benefit” from the seizure.

‘Slight Improvements’

Sen. Andrew McDonald, D-Stamford and co-chairman of the Senate Judiciary Committee, has said the governor’s proposal mirrors a bill amendment that his committee and the Senate Planning and Development Committee tried to pass last year. That reform effort failed to gain enough support to move out of the Senate.

Of the two state Senate bills awaiting legislative approval now, one focuses on giving property owners the right to buy back seized property. Specifically, if the project the property was seized for is not completed within 15 years, the bill would allow the former owner to buy it back. The other bill has similar language without the time limit. It also includes other key points in Rell’s proposal.

But Bullock is not impressed.

“These are slight improvements, but still fall short of the mark,” he said.

Because Connecticut’s eminent domain law has such a broad range, he noted, merely eliminating an increased tax base as the “public benefit” criterion will not have much of an effect.

“It is a charade to think that that would provide any protection to home- and small-business owners,” Bullock said.

The state’s current interpretation of “public benefit,” upheld by the Supreme Court’s decision two years ago, had concerned then Justice Sandra Day O’Connor because of its broad nature.

In her dissenting opinion, O’Connor 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.”

The Connecticut statute governing eminent domain, Chapter 132, begins by stating that “the economic welfare of the state depends upon the continued growth of industry and business within the state.” The statute mandates that property seizures should be done in accordance with local, regional and state planning objectives, and that permitting and assisting municipalities “to acquire and improve unified land” areas to meet those objectives represent “public uses and purposes for which public moneys may be expended.”

Bullock agrees with O’Connor that the interpretation is far too vague.

“The Legislature needs to remove Chapter 132,” he said. “That would solve the Kelo problem. Connecticut is in desperate need of real eminent domain reform.”