=20

High court backs seizure of land for development

By Peter S. Canellos, Globe Staff=20 | June 24, = 2005

WASHINGTON -- The Supreme Court yesterday granted cities and = towns the=20 right to force the sale of private property to make way for = economic=20 development projects, ending a closely watched battle between = homeowners=20 and the City of New London, Conn., over a plan for a sprawling = waterfront=20 complex of private housing, stores, restaurants, and = businesses.

The owners of nine houses charged that the city was abusing its = power=20 to take private property for public purposes with a plan that = would enrich=20 businesses and real estate developers, not the public at large. = The city=20 maintained that the public would benefit with the creation of = 1,000 new=20 jobs and higher tax receipts.

Over five years, the case drew progressively greater scrutiny = in the=20 real estate world as a David-and-Goliath battle, with many = believing a=20 conservative-dominated Supreme Court would impose new restrictions = on the=20 forced sale of private property.

It did not. In a 5-to-4 decision that cut mostly along the = court's=20 liberal-conservative fault line, with moderate Justice Anthony = Kennedy=20 siding with the four most liberal justices, the court expanded the = power=20 of cities to order the taking of homes or businesses.

It declared that economic development is a reasonable use of a = city's=20 power of eminent domain.

New London's ''determination that the area was sufficiently = distressed=20 to justify a program of economic rejuvenation is entitled to our=20 deference," wrote Justice John Paul Stevens for the majority, = which also=20 included justices Ruth Bader Ginsburg, David Souter, and Stephen = Breyer.=20 ''The city has carefully formulated an economic development plan = that it=20 believes will provide appreciable benefits to the community, = including --=20 but by no means limited to -- jobs and increased tax = revenues."

Cities have long used their property-taking power to clear the = way for=20 roads, bridges, sewers, and other public improvements. They have = also=20 forced the cleanup of blighted neighborhoods and made room for = sports=20 stadiums, conference centers, and railroads -- all of which, even = if=20 privately owned, are used by the general public.

Any owner whose home or business is taken for such a purpose is = to=20 receive a fair price.

But the bulldozing of homes and businesses has often brought a=20 passionate backlash -- such as with the still-lamented destruction = of=20 Boston's West End in the 1960s -- and courts have struggled to = determine=20 what is a constitutionally permissible justification for taking=20 property.

Some states have refused to use eminent domain to help = employers build=20 larger offices and expanded research facilities. Other states have = insisted that economic development has clear public benefits.

Yesterday, city planners across the country cheered the Supreme = Court=20 ruling, saying it preserves an important tool in assuring the = economic=20 competitiveness of cities at a time when employers can be enticed = to=20 cheaper suburban and rural locations.

Economic development is ''an essential public purpose of cities = and=20 towns," Boston Redevelopment Authority spokeswoman Susan Elsbree = said.

''While the BRA does not utilize eminent domain in the same = manner as=20 New London, we do believe that this ruling affirms the importance = of=20 maintaining a strong planning and economic development agency to = help=20 create and implement the public vision for growth," Elsbree said = in a=20 statement.

But Justice Sandra Day O'Connor, in a sharply written dissent, = declared=20 that the decision will ''wash out" any distinction between public = and=20 private uses of property, leaving homeowners vulnerable to the = whims of=20 unelected planning agencies.

''Any property may now be taken for the benefit of another = private=20 party, but the fallout from this decision will not be random," = wrote=20 O'Connor, joined by Chief Justice William Rehnquist and justices = Antonin=20 Scalia and Clarence Thomas. ''The beneficiaries are likely to be = those=20 citizens with disproportionate influence and power in the = political=20 process, including large corporations and development firms."

New London's development agency devised its plan for the Fort = Trumbull=20 neighborhood along the Thames River after the pharmaceutical = company Pfizer agreed to build a huge = research=20 facility on an abutting piece of land.

The city hoped to use Pfizer's commitment to attract new = companies,=20 stores, restaurants, a museum, a marina, and more homes to the = area.

The plan encompassed public land and 115 private properties, = most of=20 which were purchased at a negotiated price.

But nine property owners refused to sell, and brought suit = against the=20 city in 2000.

The named plaintiff in the case, Susette Kelo, said she had = made=20 significant improvements in her house and prized its water = view.

Another plaintiff, Wilhelmina Dery, was born in her home in = 1918 and=20 did not want to give up a house that had been in her family for = about a=20 century.

The owners won an injunction against the city from a state = judge, but=20 it was overturned by the Connecticut Supreme Court last year. The = US=20 Supreme Court heard arguments in February.

Yesterday, the homeowners expressed bitter disappointment.

''It's unbelievable that the court would do this," said Bill = Von=20 Winkle, who owns rental property as well as a home in the = development=20 area. ''After this ruling, no home in the country will be = safe."

But in New London's City Hall, still reeling from the = announcement=20 earlier this year of the planned closure of the city's naval base, = city=20 attorney Tom Londregan expressed relief.

''It is the urban cities of this country that provide for the = poor, the=20 disadvantaged," he said. ''Cities need to be given the tools to = develop=20 the economic base to carry their urban agenda."

The court majority drew heavily on past cases in which cities = and=20 states obtained permission to use eminent domain power for new=20 purposes.

The Supreme Court in the past has given strong deference to a = state's=20 or city's own determination of what constitutes a public benefit, = Stevens=20 wrote in the majority opinion.

He noted that the Supreme Court had upheld a massive = redevelopment plan=20 for a depressed Washington, D.C., neighborhood, and a plan by the = State of=20 Hawaii to break up the landholdings of a small group of owners = whose=20 influence was deemed harmful to the state.

O'Connor, writing for the dissenting justices, argued in favor = of=20 overruling recent precedent and allowing cities to take property = only if=20 they are going to use it themselves or open it to the public.

Eugene Volokh, a law school professor at the University of = California=20 at Los Angeles, said the decision was consistent with a = century-long=20 string of decisions granting more power to governments to force = the sale=20 of property.

The greater legal jolt would have come if O'Connor's opinion = had=20 prevailed, he said.

''There are real money and real lives at issue here," Volokh = said.=20 ''But it's not much of a change. It's long been understood that = the=20 government has broad powers to order the sale of property."

Globe correspondent = Kaitlin=20 Bell contributed to this report. 3D""=20

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