Inside the Courtroom: Eminent Domain Abuse On Trial

January 2002

Inside the Courtroom: Eminent Domain Abuse On Trial

By Dana Berliner

The New London, Connecticut, trial challenging the abuse of eminent domain in that city has been our longest yet. Witness testimony consumed seven days in court, and on December 14, 2001, we had a final three-hour hearing on the myriad legal issues in the case. We argued, among other claims, that the condemnations were not for “public use;” that power has been unconstitutionally delegated to the New London Development Corporation (NLDC)–a private party; that the condemnations are not necessary; and that the condemnations violate equal protection because the NLDC decided to spare a more politically connected occupant of the area while condemning the properties of our less-connected plaintiffs.

For all our readers who couldn’t be there, here are just a few of the highlights from our trial in New London.

July 23, 2001 We arrived at the courthouse early. People from New London and all over Connecticut gathered for a rally and press conference to voice their opposition to the abuse of eminent domain. One determined citizen stood outside with a “honk if you oppose eminent domain” sign for the course of the trial.

The trial opened with testimony from all seven of the property owners, each of whom explained their attachment to their homes and their firm desire to stay. Matt Dery’s parents have lived there the longest:

Q. How long has your father lived in that house? A. He’s lived there since he married my mother; 56 years. Q. And how long has your mother lived in the house on Walbach Street? A. She was born in that house in 1918. She lives there currently, and she’s never lived anywhere else; it’s 83 years.

Anthony Christofaro described how his family has already been through one condemnation of their home. As happens all too often, that first condemned property was not even used for the claimed purpose of the condemnation. Finally, Susette Kelo summed up for every owner when she said, “I just want to be left alone, be able to come home and relax and just be left alone.”

July 24, 2001 IJ called David Goebel, the head of the NLDC, who testified that about half of the homes will be taken for parking for planned privately owned office buildings. The other half will be replaced by “park support,” which might be parking, retail, or a Coast Guard museum–they don’t know yet. He also confirmed that the NLDC is in fact a private organization, not a government agency. IJ is arguing that the condemnations are performed by a private party; meaning the properties are taken by one private party–the NLDC–and are then leased to yet another private party–the developer. Thus there is no “public use,” because this project is controlled and owned by private parties. John Mullin, a professor at the University of Massachusetts, Amherst, and an experienced development planner, testified for the homeowners that it was not reasonably necessary to take the homes in order to achieve New London’s development goals. In fact, Mr. Mullin illustrated how it was possible to construct the exact same amount of office space and the same amount of parking without removing the homes.

July 25, 2001 One of IJ’s major contentions is that the development project is controlled by the NLDC, a private party. That kind of control is an unconstitutional delegation of power. Richard Brown, city manager for New London, supported our claims by explaining that all decisions regarding these condemnations are being made not by the City, but by the NLDC, a private party. The NLDC decides when to condemn property, whether to condemn or spare property, and whether or not to modify the redevelopment plan.

The NLDC decided to spare the Italian Dramatic Club, a well-connected social club for persons of Italian descent. The club sits right next to one of the houses being taken and near several others. Although the NLDC and City claimed there was no bias in this decision, and thus no constitutional equal protection problem, James Dunn, the director of real estate acquisition for the NLDC, admitted that condemnation of the Italian Dramatic Club would have been “politically sensitive.”

July 26, 2001 The NLDC needed to counter Professor Mullin’s testimony that the condemnations were not necessary. To do this, it called Jimmy Hicks, a planner involved in the project. Unfortunately for the NLDC, it became apparent during the testimony that Mr. Hicks had misread the relevant documents and was therefore prepared to testify only about the wrong block in the project area.

July 27, 2001 The supposed purpose of the condemnation of many of the homes is the construction of office buildings. However, New London’s development director agreed that the market for office space is “very soft” and that at least one office site in New London has remained empty for more than 15 years.

August 13, 2001 This project began with an effort to convince Pfizer to open facilities in New London. IJ called a representative from Pfizer to the stand in order to introduce documents showing Pfizer’s “requirements” for the development of the Fort Trumbull area, where plaintiffs’ homes are located, as well as the key components it wanted to see in future development. Pfizer wanted a hotel, upscale housing, and office space, and each of those–surprise–became part of the plan.

August 14, 2001 IJ called Donald Aubrey, a road engineering expert, about the supposed need to take our clients’ homes to widen roads. According to Mr. Aubrey, however, the NLDC road plans have some remarkable inconsistencies. If having six feet of grass strip would necessitate tearing down a home, then that grass is absolutely necessary. On the other hand, less grass is included when it is more convenient for the NLDC and has no impact on homes. Mr. Aubrey’s observations support our assertion that the supposed road plans are simply a pretext for taking the property. We have urged the Court to ignore them.

December 14, 2001 In a courtroom filled with property owners and their supporters, we made our final arguments to the Court. During October and November, we submitted more than 200 pages of briefing, integrating the evidence and the law. Now, we had an opportunity to answer the Judge’s questions and stress our most important point–that these condemnations violate the Constitution and exemplify the worst of eminent domain abuse. We expect a decision in the next few months. Stay tuned.

Dana Berliner is a senior attorney with the Institute for Justice.Clint Bolick is IJ’s vice president and director of state chapter development.