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Sunday, June 13, 2010

FROM WALLINGFORD - Politics’ third rail

This week’s FROM WALLINGFORD is written by my counterpart on the column – Stephen Knight.

Eminent domain is the third rail of politics in Wallingford. There is no more thankless task for the public official here than to request a rational discussion of its use, for he has thus waded into a political swamp that is almost impossible to navigate. Within minutes, any sought-after calm, methodical discussion of the subject quickly disintegrates.

Which is why you saw otherwise lucid and articulate elected officials rhetorically head for the exits when asked about the use of eminent domain to force a conclusion of negotiations over the 10.3-acre Chichowski parcel they voted to purchase some months back. Never mind that the discussion took place in executive session. Their real reluctance to speak to this issue springs from their honest fear that no matter what is said, how articulately it is stated, or how logically the argument is made, they will be accused of being insensitive, power-hungry, rights-stealing political thugs that would steal bread from the mouths of babies if given half a chance.

This predicament is the result of two factors, one uniting and the other divisive: 1) the Kelo vs. City of New London decision having aroused the inherent skepticism Americans have of governmental power that is part of our political DNA and 2) a bit of recent history here in town when the subject last arose.

First of all, the Supreme Court decision in Kelo vs. City of New London sent a shockwave through the national political psyche. To most Americans, the decision legitimized the notion that government power may be used to seize the property of one private party and turn it over to another private party. The concept of “public purpose” was absurdly expanded at the expense of our Constitutionally-guaranteed right of due process, giving rise to a legitimate hypersensitivity to and skepticism of government and its use of power over the individual.

It is worth noting that is was a 5-4 decision, with the conservative, originalist justices decrying the decision of the liberal, Constitution-as-an-evolving-document majority. The positive we can take from this decision is that many states, including ours, have rewritten their eminent domain statutes in such a way as to prevent a recurrence of this travesty.

Secondly, the last time that eminent domain was raised here as an issue was a few years ago when the mayor, in an effort to do some long term land use planning for the town, sought to survey property in the northeast corner of the town. It was thought that possibly, in the distant future, expansion of the I-5 zone allowing industrial parks might take place assuming [note carefully] that this outcome might be the desire of the property owners at that time. At the mere mention of this request, the mayor’s primary political opponent at the time, to further his own narrow political career interests, weighed in, accusing the mayor of attempting to condemn their property. Through blatant distortion of the real issue at hand, he shamelessly manipulated the property owners into believing that they were in danger of having their property taken from them. The discussions in the Town Council were a sad three-ring circus, with the frightened, lied-to, trusting property owners railing against the innocuous survey request while he stood in the back of the auditorium smugly viewing his handiwork. It was politics at its worst, and it has poisoned the well of discussion of land use in that area to this day.

So this is the table that has been set for any discussion of eminent domain in Wallingford. Somewhere there is a balance between our individual rights as property owners and the responsibility of the community to plan its future. We can find this balance, but only if we are willing to approach it as the sophisticated, complex topic that it is. Those who will be living in our town fifty years from now are depending on our ability to do so.


  1. Those of us who have faced the threat of eminent domain know two things: It is a sobering experience and property owners do not stand on a level playing field politically, legally or economically.

    Kelo was about economic development "takings." Many states have and will see more natural resource development taking. For example, more “taking” is on its way in New York and Pennsylvania, thanks to the rising interest in natural gas drilling in the gas-rich Marcellus Shale.

    With more drilling comes more pipelines and more underground gas storage fields — and that (pipelines & storage fields) always means eminent domain.

    Alexandra Klass, Associate Professor of Law at the University of Minnesota Law School, wrote an article in 2008 titled, “The Frontier of Eminent Domain.” She raises the question: “Why aren’t Kelo activists also incensed over natural resource development takings?”

    Indeed. The excellent Institute for Justice of Kelo fame declines to intervene in energy/utility “takings” because, they told me, of the “public good” premise. The Institute should reconsider what support it can offer in this expanding “market” for eminent domain abuse.

    The stories are horrendous; energy companies and utilities are no better than Bruce Ratner.

    But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. If you want to understand the adverse effects of this type of eminent domain, read this post:

    Spectra Energy’s facility has had operational problems from the start, has received two Notice of Violations for “unlawful conduct” related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

    Learn from our experience: Spectra Energy

    The ripple effects of eminent domain are never over.

  2. You are right that CT's legislature made some changes to state statutes but incorrect that those changes stop municipalities from taking property from one person to transfer it to another for economic development purposes.

    CT remains the only state where eminent domain for economic development is permitted without reference to blight. That was the law when Kelo was decided and still is. CT municipalities can no longer state that the primary reason for taking property is to increase tax revenues as was done by New London. Any other reason that has a public purpose not necessarily a public use makes the taking legal.

    The worst thing about the Kelo decision was neither the CT or U.S. Supreme Court would give Kelo or the other property owners the same type of judicial scrutiny that is routinely given anyone else who claims deprivation of an individual right or liberty protected by the Bill of Rights.