Burgesses Seek To Limit Power Of Eminent Domain

By Andrew Gorosko

The Borough Board of Burgesses is proposing an ordinance that would limit the power of eminent domain, by putting some controls over potential governmental taking of private property in the borough.

Borough Warden James Gaston told the burgesses on March 11 that he would distribute copies of the proposed borough ordinance to town and borough commissions in seeking their members’ views on the matter, after which the burgesses would again address the ordinance proposal for possible action.

“This is like the first pitch of the ballgame,” Mr Gaston said, noting that approving a borough ordinance would be a lengthy process.

The burgesses held a public hearing March 11 on the proposed eminent domain ordinance, but no members of the public attended the session.

Eminent domain is the right of a government to take, or to authorize the taking of, private property for public use, with just compensation being given to the property’s owner. Generally, the power of eminent domain has been exercised by governments to create locations for public facilities, such as roads, schools, and parks.

The burgesses’ intent is to create a law to protect private property from being taken by a government and then provided to a private land developer for the purpose of economic development, according to Mr Gaston.

That was the prime issue in the case of Kelo v. City of New London. In 2005, the US Supreme Court ruled that New London could legally use its power of eminent domain to transfer land from private owners to another private owner for the purpose of economic development.

In that case, New London had condemned some private real estate in the Fort Trumbull neighborhood, including homes, so that it could be transferred to a private developer to become part of a major economic redevelopment project. The US Supreme Court ruled that the city’s transfer of property from private owners to the private developer was permissible for economic growth. That court ruling drew widespread public criticism as being a violation of private property rights.

The burgesses’ ordinance proposal specifies that a governmental taking of privately owned real estate should not be done for economic development purposes, if the resulting economic development project would be privately owned or privately controlled.

In their proposed ordinance, the burgesses state that “the exercise of eminent domain is a harsh proceeding which has the effect of bringing into question the ownership security of all private citizens.”

In the proposed law, the burgesses state that “the right to enjoyment of private property is a sacred and historic American guarantee,” adding that “a primary responsibility of government is to protect private real property and home ownership.”

Additionally, the burgesses state their deep concern over the Kelo v. City of New London case, and the prospect for a potential expansion of private property takings by governments.

The proposed restrictions and requirements on eminent domain takings within the borough would by apply to property takings by the borough, by the town, or by any other government.

Under the proposed ordinance, in order for a government to take private property, a two-thirds vote of the burgesses would be required to find that:

*The taking of private real estate has a significant and logical connection to the safety, health, and welfare of borough citizens.

*The taking is permitted by applicable state law.

*The government that is taking the property would pay for two independent appraisals of the property, of which one appraiser would be chosen by the private real estate owner.

*The government taking the property would pay up to $10,000 in costs and legal fees incurred by the property owner in connection with the property acquisition.

*The government taking the property engages in “good faith” negotiations to acquire it from the property owner.

*The property’s owner would receive a payment reflecting 125 percent of the property’s value.

 

New London Case

Mr Gaston, who is a lawyer, explained to the burgesses that the Connecticut Supreme Court had upheld New London’s decision to take the private residential property for a private development project considered to be a way to expand the local property tax base.

In the plaintiffs’ appeal of that Connecticut Supreme Court decision, the US Supreme Court ruled 5-to-4 that the exercise of eminent domain was legal, constituting a “valid public use” of the land, Mr Gaston added.

“There was quite a stir,” he said, referring to public criticism of the US Supreme Court decision.

The state legislature then became involved in the issue and formulated a proposed state law which was not approved by Governor M. Jodi Rell, Mr Gaston said. The issue may again be addressed by the state legislature, he said.

Mr Gaston said that more than six municipalities in the state have laws that address limiting the power of eminent domain. He noted that the state now has an ombudsman who reviews eminent domain issues.

Mr Gaston said copies of the borough’s proposed eminent domain ordinance would be sent for review by other borough agencies and by town agencies including the Economic Development Commission, Planning and Zoning Commission, Legislative Council, Board of Selectmen, and Board of Finance.

In 2005, Economic Development Commission members recommended that the town government observe a self-imposed moratorium on using the power of eminent domain to transfer property from one private owner to another private owner.