Connecticut College Magazine · Winter 2006


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The Battle of Eminent Domain

The Battle of Eminent Domain
The home of Susette Kelo in the Ft. Trumbull neighborhood of New London. Kelo is the main plaintiff in the controversial eminent domain case, Kelo vs. New London. Photo by Gail Zucker.

A 2005 Supreme Court ruling continues to spark debate in the College´s backyard.

By Stan DeCoster

There is, in New London, a sense that a great battle has been fought, and that years — perhaps decades — will pass before the emotional scars have healed. In fact, William Frasure, for 32 years a government professor at Connecticut College, reaches back to Revolutionary War days when making comparisons to the significance of the U.S. Supreme Court’s highly controversial decision in a property rights case known as Kelo v. New London.

“I tell my students that this is the most important thing that’s happened in New London since the British burned it,” Frasure says.

The Supreme Court voted 5-4 last June 23 that economic development is a legitimate “public use” under the Fifth Amendment of the Constitution. It is, therefore, proper for government to seize homes and other private property through eminent domain and then make that same land available for private development, according to the court. The decision, regarding a part of New London known as the Fort Trumbull neighborhood, has ignited a vigorous national debate.

As debate raged in New London for more than five years, men and women with Connecticut College connections fought along opposite battle lines.
Those who support the ruling argue that struggling, poverty-stricken urban centers such as New London need such power to increase tax revenue and spark economic revitalization. There is, in short, a “greater good” to be served and some citizens should be willing to make a sacrifice if they are fairly compensated.

Critics say the high court overstepped its bounds. Justice Sandra Day O’Connor, in a blistering dissent, summed up the minority viewpoint: “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Among those who argued on the city’s side is former CC President Claire L. Gaudiani ’66, who served from 1997 to 2002 as president of the New London Development Corporation (NLDC), the quasi-public agency that was in charge of the Fort Trumbull project, and former New London mayor and state representative Jay Levin ’73, a lawyer and state lobbyist.

On the side of the homeowners is New London attorney Scott Sawyer ’88, who represents Susette Kelo and five other Fort Trumbull property owners whose properties still stand and who were involved in the legal challenge, and Fred Paxton, a city resident and activist who is CC’s Brigida Pacchiani Ardenghi Professor of History.

Passionate debate often placed CC faculty, administration and some alumni at loggerheads. As legal experts on the national scene explained it, this was a close call, as evidenced by the 5-4 vote.

Gaudiani — author of The Greater Good, a book that deals with the importance of philanthropy in American culture — applauds the decision.

“America’s citizens need the right to build community resources for all its citizens, especially those whose children need better schools,” she says. “Property taxes support the schools. In communities like New London, asking some citizens for well-remunerated sacrifices is in the context of our great history. Justices saw this.”

She adds, “New London needed the generosity of a small set of people who were offered fair and significant money for their homes and almost all of them agreed and made the sacrifice to move. Those who didn’t were led to use the court system to frustrate the will of the majority who chose the greater good — that is the larger benefit of the larger number of New Londoners.”

This was their right, she acknowledges, but asks the public to imagine what would happen if all the money spent on legal bills, media and other expenses had been invested in educating New London’s children.

Sawyer, meanwhile, stresses that the average person, from a common sense viewpoint, understands that the majority decision runs contrary to the American way.

“People thought there was protection from government intrusion in their lives, and they felt that property ownership is the one right or liberty that most people just assumed,” he says. “Everybody across the board understands property, and that is why this case is such a lightning rod.”

Sawyer points out that no one (at least as of December) seems to be knocking on Fort Trumbull’s door to invest tens of millions of dollars in the 90 acres of land set aside there for development. Sawyer also sees a “benign arrogance” embraced by policymakers at the city and state levels. “They really don’t know what’s best and they’ve completely muddled the thing up,” he says.

History provides the backdrop for the drama that unfolded on Fort Trumbull.

In the mid-1990s, New London officials continued their decades-old quest to breathe life into the city’s impressive but under-utilized waterfront. Virtually all efforts fell flat.

When Gov. John G. Rowland was elected in 1994, he embarked on an urban development initiative throughout Connecticut. New London would not be ignored. In fact, $63 million went toward rebuilding State Pier, just north of downtown.

Then in 1996, Levin, a lobbyist at the state Capitol but with roots in New London, was commissioned to prepare a plan for the waterfront. His conclusion: the city shouldn’t restrict itself to the pier and downtown. Instead, planning should extend all the way to the former New London Mills site on Pequot Avenue, on the south side of town.

Levin also recommended resurrecting the moribund NLDC, an organization that the city council had created decades earlier to help stimulate development, but which, in fact, had accomplished precious little.

Levin approached Gaudiani on the CC campus in 1998. “I told her, ‘If you’re ready to take on a bigger challenge, I have something in mind.’”

She agreed to become president of the NLDC, and shortly thereafter met with Peter Ellef, who would become co-chief of staff for Gov. Rowland, but at the time was commissioner of the state’s Department of Economic and Community Development. Gaudiani and Ellef hit it off immediately, according to Levin, and things were off and running.

To Levin’s great surprise, Pfizer Inc., the giant pharmaceutical company with research headquarters in Groton, agreed to build its international center for Global Research and Development on the former New London Mills site. The price tag was $300 million, and it created 1,500 high-paying jobs. There is no doubt that Gaudiani, along with former trustee and then-Pfizer executive George M. Milne P’99, played a strong role in bringing Pfizer to New London.

“It really took the vision and persuasion that Claire had, that George Milne and his board had, and that Rowland had, to look at the site as a real possibility and to put together a deal that was attractive and competitive,” says Levin in a recent article in The Day newspaper.

With the Pfizer coup completed, conversation in government circles turned to, “What’s next?”

The answer was Fort Trumbull. The state and the city concluded that the isolated peninsula was the next logical area to be developed, providing a complement to the new, nearby Pfizer campus and creating a link, of sorts, to the downtown area.

The city already had access to 32 acres of waterfront on the peninsula because the federal government in the mid-1990s had abandoned the Naval Undersea Warfare Center. The state also created Fort Trumbull State Park at the site of a Revolutionary War landmark that, when the warfare center was operating, wasn’t readily available to public access.

In the eyes of state and local officials, however, there was more to be accomplished. And this is where, the critics argue, the state and city over-reached to increase their total holdings in the Fort Trumbull area to about 90 acres. It’s where they started to take land from homeowners and make it available for the possibility of private, commercial development.

“Why they had to go after the adjacent neighborhood, tear it down, and kick people out of their homes is beyond me,” says Sawyer. “They already had the former warfare center — right there on the water — and that should have been sufficient.”

There were more than 110 parcels at issue, and the city, with a $70 million contribution from the state, demolished most of them — only a handful remain — after government paid homeowners for their properties. State and local officials say that the vast majority of homeowners left quietly and willingly, and relocated after they received fair payments for their properties.

Sawyer takes issue.

“They were mostly elderly, and they were scared to death,” Sawyer says of the residents. One elderly man, a long-time resident of the Fort, told Sawyer: “I don’t have the fight in me. Scott, just get me whatever money you can, and I’ll be on my way.”

Kelo and the few remaining Fort Trumbull residents enlisted the support of a national organization known as the Institute for Justice. A group dedicated to individual property rights, it provided most of the legal and financial wherewithal for Kelo and company to take their case to the Supreme Court.

Fred Paxton, the history professor, became co-chairman of the Coalition to Save the Fort Trumbull Neighborhood, a position that placed him in direct conflict with Gaudiani. He said he became incensed after viewing the city’s municipal development plan.

“I went to the NLDC offices ... and was shocked to see that it entailed wiping everything in the area clean, something I thought New London would never do again after the disasters of urban renewal,” he says. “I visited the neighborhood and New London Landmarks only to find that everyone who had spoke out in favor of incorporating the existing homes and businesses were deeply discouraged.

“They felt there was too much power and money behind what was happening to stop it and that there had never really been any question of how the final plan would look.”

Sarah Hansen ’01 wrote a thesis on the subject and also became an activist, advocating for the homeowners.

“This plan echoes back to the days of urban renewal of the 1960s,” she says. “The idea was, ‘If we just clear it, they [developers] will come.’ Well, that’s not what happened.”

Sawyer and Levin sum up the contrasting views of what economic benefits, if any, the Fort Trumbull experience will have in years to come.

“People think I’m running from this,” says Levin. “I’m not. I’m proud of it. I’d do any of these things again. I think the city deserves it, and I think the people of the city deserve an opportunity to expand their tax base.”

Levin says cities “need a tool in their tool box and this [eminent domain] is the only one they have.”

He minimizes the effect of the property owners’ land being taken off the tax rolls in Fort Trumbull. Among other things, he argues that many of the properties were dilapidated and didn’t generate a great amount of tax revenue.

Sawyer, on the other hand, says New London already has lost considerable property tax revenue, and there is no promise that substantial development will come anytime soon.

“If this plan was meant to create a benefit for the city of New London, it’s had the absolute opposite effect,” he says. “It’s caused a downward spiral economically and emotionally for the city at an exponential rate. The city isn’t going to recover from this, certainly in our lifetimes, from the point of view that money has been lost and the amount of opportunity that has been lost.”

Adrianne Capaldi, a CC senior, is writing her thesis on the controversy. She agrees that state and local officials lacked a solid plan of development, despite continuing discussions of a possible hotel and other construction there. It would be one thing, she says, if a sure-fire plan had been in place before the homes were demolished.

“You actually have two sides of an argument then,” she says. “Now you only have the side of the homeowners. The Supreme Court was deciding on the larger principles. They said it was for the local government to decide. They weren’t considering the history of New London or anything else.”

Tony Sheridan ’74, who is president of the Chamber of Commerce of Eastern Connecticut, says Connecticut cities such as New London somehow need to have a way to pay the bills, especially since so much of the land is tax exempt and urban centers are where most of the poor people live.

“You need one of two things,” he says. “You need either massive tax reform at the state level that depends far less on the local property tax or you need to give the cities the tools they need to generate tax revenue.”

Though he generally favors the majority in the Kelo decision, he believes some things could have been done differently in New London. For one thing, he thinks the system should have required a citywide referendum on the eminent domain issue — which it didn’t.

“In New London, we’ve got to deal with what we’ve got,” he says. “Some mistakes were made, sure, but we’ve got to look ahead.”

In November Grover Norquist, a conservative and White House advisor, was invited to Connecticut College by the student group CC Republicans to discuss the significance of the Kelo decision. He told a forum that the Kelo case will have the impact in the property rights issue nationally that Roe v.Wade has had in the fight over abortion rights.

He predicted, however, there will be a massive backlash against giving government the power to seize private property for larger-scale private property development. He said history will show the Kelo decision actually strengthened individual property rights throughout the United States.

Traditionally, it has been considered acceptable for government to seize land for a strictly public purpose, such as building a highway, bridge or sewer plant. The Kelo ruling now extends the definition of “public use” to work being done by private developers.

Already, some state legislatures, in reaction to Kelo, have made it difficult, if not impossible, for governments to take private property for a more expansive private use. Congress also is considering pulling in the reins. Connecticut, as of December, had placed a moratorium on such land-taking, and action against Kelo and the other five Fort Trumbull property owners had been placed on hold. Sawyer and others were arguing that developers should be able to do their work around the homes of the six contested properties.

Frasure, the government professor, notes that conservatives — traditionally interested in limiting government’s power — have tended to line up on the Kelo side. Liberals are more likely to take the side of government. That, in essence, is how justices lined up in the U.S. Supreme Court split.

But on the Connecticut College campus, he says, a majority of faculty and students seem to have favored Kelo. He considers that surprising, in a way, because colleges generally are liberal institutions, especially among the faculty.

“What’s happening here seems to stand conventional wisdom on its head,” he says. “Among the students, I don’t see a whole lot of sympathy for the city of New London in this. So there is a lot of support for the property owner, the little guy, up against the city.”

Art Ferrari, a sociology professor, is like Frasure in that he hasn’t been an activist in the case. He sees sympathy for the Kelo faction, both nationally and in New London, as coming from a loss of a sense of community throughout America. He says average people in their everyday lives are feeling increasingly threatened by outside forces.

“They’re thinking that they (at Fort Trumbull) are little people, just like me, who could be laid off tomorrow, and who should be protected from the bigger forces,” Ferrari says. “It’s the big, bad government joining the big, bad developers and they’re kicking around the little guys. A lot of people are feeling overwhelmed, and that’s come to a head in this case.”

Ferrari personally would like to see what he calls a step to the middle.

“Make developers stand on their head to prove the greater good,” he says. “If they can’t do that, well, it may not be worth it. My position in general is that I don’t like to see the little guy getting screwed. That’s balanced by the feeling that there is such a thing as the greater good.”

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