2005 Connecticut Commercial Real Estate Conference

1. 2005 Connecticut Commercial Real Estate Conference Kelo v. New London Dwight Merriam, FAICP, CRE

34. Susette Kelo • Registered nurse; bought in 1997 with husband, Tim

35. Kelo can see Montauk from her house

36. Bill Von Winkle • Ft. Trumbull deli with 6 apartments above • Operated deli since 1986 • All apartments occupied

37. Michael Christafaro and his father • Brother Anthony’s children live here • Family forced out of prior home for seawall never built (private development was)

38. Matt and Suzanne Dery • Family has lived in Ft. Trumbull area since 1895 • Matt’s mother and father next door; mother born there 1918

39. The Decision • Kelo et al. v. City of New London et al., (U.S. Sup. Ct., No. 04-108, June 23, 2005) • 5-4 vote

40. Majority Opinion • Per precedent, “public use” = “public purpose” which includes economic development • Economic development plan is “carefully formulated” and “comprehensive”-- serves a “public purpose” • Does not confer “private benefit on a particular private party” or have only “mere pretext of a public purpose”

41. Majority opinion (cont’d) • Deference to legislative judgments re: • Likelihood of success of the plan • What land is needed for the project

42. Majority opinion (cont’d) • “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”

43. Thomas dissent • “Public purpose” ≠ “public use”, and cannot be applied in a principled way • Precedent cited by majority are either misconstrued, or “misguided” and not to be followed • Should not defer to legislature on core legal issue • “These losses will fall disproportionately on poor communities.”

44. O’Connor dissent • Would allow “public purpose” takings for private use, if “direct” public benefit and other conditions • Here, only “incidental” public benefits (increased tax revenue, jobs, and possibly aesthetics) -- any project can be said to provide these

45. O’Connor dissent (cont’d) • Supposed safeguards in majority opinion (careful process; must improve the property) are illusory • “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.”

50. To protect private property rights. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Private Property Rights Protection Act of 2005'.