West Haven Eminent Domain

Stopping Kelo From Happening Again

West Haven, Connecticut has always been home for Bob McGinnity. He grew up there and his childhood home remained his base during his time in the U.S. Navy and his career as a conductor for Metro North Railroad. He lives in that home today, enjoying his long-awaited retirement. Bob remodeled the home and his uncle, Michael Perrone, lives in the unit below him. Living so close has been invaluable since his uncle’s recent stroke and heart attack. It allows Bob to help care for his uncle, who gets to stay in his home to recover.

This ideal arrangement, however, is under threat from Bob’s own government. The city of West Haven has teamed up with a private company—The Haven Group, LLC—to build a strip mall along the West Haven waterfront, which would include both Bob’s and Michael’s homes. Bob and Michael do not want to sell and building around them would require the developer to rearrange only six small stores in the overall complex.

Except there is one problem.

West Haven is in Connecticut, home of Kelo v. New London, the much-reviled 2005 U.S. Supreme Court case that allowed government officials to condemn property based on nothing more than a promise to generate more tax revenue. That decision sparked outrage and a nationwide backlash—44 states have passed laws reforming their eminent domain laws to make Kelo-style takings harder and nine state supreme courts have rejected the Kelo decision.

The Kelo case is also notable for what it did not spark: development. Twelve years later, the neighborhood destroyed by New London is a vacant lot populated only by grass, weeds and feral cats.

The lesson of Kelo is clear: Eminent domain abuse hurts property owners, destroys communities and fails to generate the kind of development its proponents promise.

But West Haven officials have taken the opposite lesson from the case. They apparently believe the case means they can take anyone’s property, anytime they want, for any reason. That is not true. The West Haven condemnations are worse than Kelo. Government officials in Kelo wanted to take private property in the hope of realizing their (wrong-headed and fantastical) plans for redevelopment.

But government officials in West Haven did not decide their town needed a strip mall and go looking for someone to build it for them. A private developer decided to build a strip mall and has enlisted the city government to take property on its behalf. Simply put, West Haven is not condemning Bob’s property for a public purpose; it is condemning Bob’s property because a private developer told it to. This is exactly the kind of taking that even the Supreme Court’s Kelo decision singled out as unconstitutional.

That is why Bob and his family have teamed up with the Institute for Justice to file a lawsuit against the city of West Haven and its redevelopment arm, the West Haven Redevelopment Agency, to put an end to this abuse of public power for private gain.

West Haven Eminent Domain

Date Filed

September 28, 2016

Original Court

Ansonia-Milford Judicial District

Current Court

Ansonia-Milford Judicial District

Case Status

Open

Attorneys

Media Contact

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Case Team

Timeline and Case Documents

In The News

West Haven Can Build a Shopping Mall Without Bob’s Property—It Just Doesn’t Want To

Bob McGinnity is not against development in West Haven—in fact, he has offered to sell his large backyard to the city for use in the shopping center, provided he and his uncle get to stay in their homes. City officials have refused to even consider his offer. Building around Bob and his uncle would require the relocation of a few small stores, at the most—a small price to pay to avoid destroying a retiree’s childhood home and throwing his elderly uncle out of his last remaining refuge.

In other words, this case does not present a choice between letting retirees stay in their homes and having economic development in West Haven. This case presents a choice between letting retirees stay in their homes and building this specific strip mall design. Faced with both choices, West Haven has decided that the retirees must go.

Bob and Michael do not know where they will go if they lose their homes. But they do know they have a right to stay and to keep what they have worked all their lives for.

Like Kelo, But Worse—Much Worse

Under the power of eminent domain, the government can take private property. For years, the Fifth Amendment to the U.S. Constitution and similar provisions in state constitutions greatly restricted this power. Under the Constitution, eminent domain must be for a “public use” and provide “just compensation” to the property owner. Traditionally, these “public uses” have been understood as public projects such as schools, roads, infrastructure and public utilities.

Unfortunately, the U.S. Supreme Court dramatically expanded this power and gave the green light for local and state governments to abuse eminent domain in the now infamous Kelo v. New London decision.

IJ represented Susette Kelo and other homeowners in New London, Connecticut to save their homes from being demolished. But in a narrow 5-4 decision, the Supreme Court instead upheld the taking of their homes under the guise of “economic development.”

That decision led to immediate public outcry. It is no exaggeration to say that the Kelo case represents the most reviled Supreme Court decision in modern history. And that outcry led to real results: 44 states have changed their laws to make Kelo-style takings more difficult and nine state high courts have either rejected the Kelo rule under their own constitutions or otherwise strengthened protections for property owners in the wake of the decision.

Kelo was wrong when it was decided and it remains wrong today. But this case is dramatically worse than Kelo. In Kelo, the Connecticut courts and the U.S. Supreme Court agreed with the age-old proposition that the government cannot take private property from Person A merely to give it to Person B. The Kelo courts upheld the takings there because the city of New London came up with its redevelopment plans first on its own. The takings could not be characterized as merely a transfer from A to B because the city had not identified a developer before drafting its plans.

Here, though, the process happened in reverse. Rather than West Haven coming up with its own plan, as in Kelo, The  Haven Group, LLC, a private company run by Greenwich developer Sheldon Gordon and Dallas real estate investor Ty Miller, proposed building a strip mall for its own private benefit on land that the company did not own. Gordon and Miller told the city to condemn and the city eagerly complied.

Simply put, Kelo said the government could use private developers as part of a broader scheme for redevelopment, but this case is about a private developer using the government for its own ends. Because of this key difference, Bob and his family have filed a state-court lawsuit against the city of West Haven and its redevelopment agency to establish that the proposed condemnations violate both the Fifth Amendment to the U.S. Constitution and Article I, section 8, of the Connecticut Constitution. The courts should take this opportunity either to repudiate the excesses of the Kelo decision or, at minimum, verify that the limits outlined in Kelo have real teeth. Bob’s childhood home, along with the constitutional rights of millions of Americans, hangs in the balance.

Eminent Domain on the Rise

Eminent domain abuse has been at a standstill for nearly a decade as a result of two overlapping factors. First, the public backlash against the Kelo decision made eminent domain toxic and local government officials responded accordingly. Attempts to use public power for private gain led to long court fights, public outrage, and ultimately, an enormous waste of public resources. Those basic facts have caused sensible officials to steer far clear of fights like this. At the same time, the 2008 economic crisis resulted in a massive crash in property values across the country. In that economic environment, the temptation to use government power to engage in real estate speculation was substantially diminished.

As a result, the overall appetite for eminent domain abuse waned. Indeed, California actually amended its state code to eliminate redevelopment agencies, the government entities that had been responsible for most eminent domain abuse in that state. To be sure, there were a number of high-profile eminent domain fights during this time in places like National City, California and Atlantic City, New Jersey, but nothing like the volume of eminent domain abuse documented in the early 2000s.

Today, that is starting to change. With a recovering real estate market, a new generation of municipal officials is starting to make the same mistakes. Projects using eminent domain for private development have sprung up in Connecticut, Massachusetts, New Jersey, Georgia and elsewhere. Just last year, California passed a law effectively reviving its redevelopment agencies, paving the way for the return of abusive takings.

As this new wave of eminent domain abusers rise, the Institute for Justice stands ready to teach them the same lessons the last wave learned: Abusing public power for private gain is illegal, unconstitutional, and unpopular. And it will be stopped.

The Litigation Team

This case is being litigated by IJ Attorneys Robert McNamara and Renée Flaherty. Serving as local counsel will be Dwight Merriam, Brian Smith and Evan Seeman of Robinson & Cole, LLP.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. IJ has spent 25 years fighting against eminent domain abuse nationwide. IJ’s victories  have saved homes and businesses, including: the home of an Atlantic City widow; a small repair shop in Arizona; 17 homes and business in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California.  Currently, IJ is fighting on behalf of Charlie Birnbaum, a piano turner in Atlantic City, whose childhood home is under threat of being taken by the Casino Reinvestment Development Authority. In August 2016, the New Jersey Superior court called this a “manifest abuse of the eminent domain power” and dismissed the condemnation, saving Charlie’s home. The CRDA is appealing the decision.

For more information, contact:

Shira Rawlinson
Assistant Director of Communications
(703) 682-9320
srawlinson@ij.org

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