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Published: Tuesday, 2/22/2005

High court to hear land-seizure issue

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - When the U.S. Supreme Court returns to the bench today, it will hear arguments in a case that could lead to new rules on when government can seize private property from one owner and turn it over to another in the hopes of creating jobs and increasing tax revenue.

In the audience for the argument will be a man for whom this is a landmark case in more ways than one.

Bill Von Winkle owns three buildings in the Fort Trumbull area of New London, Conn., which the city and a development agency have sought to acquire by eminent domain for a redevelopment plan anchored by a research center for the Pfizer pharmaceutical company.

Mr. Von Winkle, who closed a delicatessen he operated in one of his buildings but continues to rent apartments on his property, is confident that he and eight other property owners will prevail in the Supreme Court.

"How could we possibly lose this?" he said in an interview. "You can't do what they're doing. If Pfizer wants property, they've got to buy it, not steal it." Actually, Mr. Von Winkle and the other property owners would receive payment for their property under Connecticut law and the Fifth Amendment to the U.S. Constitution, which says that private property may not be "taken for public use without just compensation."

The question before the Supreme Court today is whether the redevelopment of Fort Trumbull, which the city believes will invigorate the economy of New London, is a "public use" that overrides the owners' right to hold on to their land if they choose.

For Scott Bullock, attorney for the New London property owners, the answer is obvious: "This is a clear abuse of eminent domain. If they can take these properties, any neighborhood is up for grabs."

In interviews and in the brief to the Supreme Court, Mr. Bullock argued the New London case should be an easy one for the high court because - as is not the case with other uses of eminent domain - New London did not assert that the neighborhoods it seeks to condemn are "blighted." The redevelopment took place under a state law designed to revitalize older commercial and industrial areas.

Another controversial eminent domain case that has made it to the U.S. Supreme Court is out of Toledo.

But unlike New London, the court hasn't decided yet to hear the appeal of Kim's Auto & Truck Service, which the city condemned in 1999 to pave the way for DaimlerChrysler AG's Toledo North Assembly plant and for future projects.

Toledo Law Director Barb Herring said Toledo was justified because the move retained jobs and cured urban blight. Because Toledo already had an established urban renewal plan, Toledo acted properly, she said.

"Our case is distinguishable from theirs," said city attorney Adam Loukx. "City Council after several hearings said the area was blighted."

In its brief in the New London case, the clients' plight was described in these terms: "To petitioners, like most Americans, their homes are their castles. In this case, they face the loss of the homes and neighbors they cherish through the use of eminent domain not for a traditional public use, such as a road or public building, nor even for the removal of blight. Rather, respondents - a local government and a private development corporation - seek to take petitioners' 15 homes to turn them over to other private parties in the hope that the city may benefit from whatever trickle-down effects those new businesses produce."

Supported by city governments and environmental organizations, New London argues in its brief that "employing the power of eminent domain to revitalize a municipality's economy satisfies the public use requirement. This is especially true in urban settings, in which the problem of land assembly often acts as a barrier to economic revitalization."

Who's right? In a 1954, the high court upheld the use of eminent domain by Congress for an urban renewal program in the District of Columbia.

Writing for the court, Justice William O. Douglas said: "We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive."

New London also cites a 1984 case in which the court upheld Hawaii's use of eminent domain to condemn of large tracts of leased residential property as a way of breaking up an "oligopolistic pattern of landownership" left over from Hawaii's days as a monarchy.

New London and its allies insist that, under these precedents, Connecticut has the discretion to decide what a public purpose is without a federal judge second-guessing that decision. Not surprisingly, the plaintiffs read the two Supreme Court precedents differently. Both, they said, limited the definition of "public use" to "the elimination of the undesirable conditions, not the land's subsequent use."

However the Supreme Court rules, experts on property law see this as a significant case, though one in which the court is unlikely to revoke the discretion it has given local governments to use eminent domain in "blighted" areas.

"Unless the Supreme Court uses this as a vehicle for revisiting [its 1954 ruling], the practical effect of a decision for the property owners would be small," said Paul Rosenzweig, senior legal research fellow at the Heritage Foundation's Center for Legal & Judicial Studies. "But I wouldn't underestimate the practical effect of a decision in their favor. City councils will hesitate before ascribing blight to situations in which it didn't apply."

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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