New York-based developer Bryan Bowers is asking the U.S. Supreme Court to overturn the infamous 2005 Kelo v. New London ruling, which allowed the city of New London to seize private property for private developers.
In Kelo, a 5-4 Supreme Court majority upheld the Connecticut Supreme Court’s finding that New London’s seizure of land in the city’s Fort Trumbull neighborhood to give to Pfizer, Inc. as part of an economic development project was an acceptable “public use” under the Constitution’s Fifth Amendment.
The ruling was met with widespread outrage from groups across the political spectrum and resulted in various reforms limiting eminent domain in 47 states and even resulted in an executive order from former president George W. Bush limiting how the federal government could use eminent domain. But New York was not among the states that placed limitations on the practice in the wake of the Kelo decision.
In a newly filed petition, Bowers is asking the Supreme Court to review a ruling from the Supreme Court of New York that found the city of Utica was within its right to take land on which he had a contract to build and give it to a different private corporation for a separate construction project. As in the Kelo case, the decision focused primarily on the economic benefits associated with the “taking.”
According to the petition, Bowers’ development company was “under contract to buy a lot in Utica, NY, near a newly built private hospital, which it thought would be a good site for a new medical-office building.” However, Central Utica Building, LLC, the respondent in the petition, had plans to build a medical office building on an adjoining property. Central Utica asked the Oneida County Industrial Development Agency (OCIDA) to take Bower’s property and transfer it to Central Utica so they could “build a parking lot for Central Utica’s building.”
“Central Utica claimed that without more land, it would not have enough parking to support its proposed private office building.” the petition states. OCIDA agreed on the grounds the office building “would be an economic boon to the area.” also according to the petition.
“At the public hearing on the proposed condemnation, OCIDA recited asserted (sic) “public purposes” for the taking, which focused almost entirely on the economic benefits of Central Utica’s proposed private office building.” the petition notes.
Bowers appealed the decision in New York’s court system and while a trial court found that the decision was outside OCIDA’s statutory authority to take property for commercial purposes, the appellate court reversed that decision. According to Bowers’ petition, the New York Court of Appeals found “the condemnation was statutorily authorized because “a parking facility used by the customers of a profit-making business plainly has a ‘commercial’ purpose.”
The appellate court also remanded a question about whether a parking facility used by customers of a for-profit business was a public use under the Fifth Amendment. The lower court found that it was, writing “[w]hat qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage.” They further found a parking lot served a public purpose by “mitigating parking and traffic congestion.”
To reach this conclusion, the court applied a rational-basis review, which is the lowest level of scrutiny a court can apply when deciding whether a law is constitutional. It requires a court only to find that a law is rationally related to a legitimate government interest.
There are two higher levels of scrutiny: intermediate scrutiny, which requires the government to show a law furthers an important government interest and do so in a way that is substantially related to interest in order to be constitutional, and strict scrutiny. Strict scrutiny starts from the premise that a law is unconstitutional and requires government officials to show their actions further a compelling government interest, are narrowly tailored, and are the least restrictive means available in order to prove a law is constitutional. Strict scrutiny is often applied to restrictions on speech.
Browers’ petition asks whether the Constitution’s public use clause requires a higher level of scrutiny than the rational-basis test and also asks the court to consider whether it should overturn its decision in Kelo.
Browers’ is represented by the Institute for Justice (IJ), who also represented Suzette Kelo, whose house was among those taken by the city of New London, in the original Kelo case.
Today, the land New London seized for development mostly sits empty and undeveloped. Corcoran Jennison Cos., which has development rights for much of the land, was unable to secure financing for the project. Their rights expired in June 2008. Pfizer also abandoned the project in 2010, choosing instead to retain a facility in Groton after it merged with Wyeth.
Beginning in 2010, the city and the Yale Urban Design Workshop began plans to develop a “New Urbanism village” adjacent to Fort Trumbull State Park, which Benedict Arnold burned down during the American Revolution. The project was later scrapped for being impractical and a plan to build a communicy center is now in the works. Smaller plots of land have been sold off for development purposes, but the $1.2 million a year in tax revenue and thousands of new jobs the city was promised never materialized. The cost of purchasing and clearing the land was $78 million.
In the aftermath of the case, Connecticut was one of the last states to adopt eminent domain reform, waiting to pass a law in 2007 that IJ has said was “not worth the wait.” The law purported to ban the taking of property for eminent domain “for the primary purpose of local tax revenue” but does not stop private property from being taken for commercial development.
The law also stipulated that, if property seized through eminent domain is not used “for the purpose for which it was acquired or for some other public use,” government officials must first wait six months before trying to sell it back to the person from whom it was taken or their heirs before offering it to a third-party.
“Unfortunately, SB 167 offers no substantive property rights protections because when cities are determined to see a project approved, they can easily assert an alternative “primary purpose” for a condemnation and are usually of one mind when it comes to voting.” IJ wrote of the law.
A number of stronger bills that would prohibit the use of eminent domain or would otherwise limit or abolish the practice have appeared regularly in the legislature since the Kelo decision, but have never made it out of committee.
Correction: An earlier version of this story stated plans to develop a New Urbanism village were in Fort Trumbull State Park.
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