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Taking New London

Monday, February 28, 2005; Page A16

THE SUPREME COURT heard arguments last week in a property-rights dispute in which almost all of the justice is arrayed on one side, yet the law must come down on the other. The city of New London, Conn., is seeking to expropriate the property of the residents of Fort Trumbull, a struggling neighborhood, for an urban redevelopment project that would build a hotel, offices and other features in the waterfront area. Most of the neighbors sold their houses voluntarily, but a few refused, including an elderly woman who has lived in her house her entire life. So the city, acting through a private, nonprofit corporation, asserted the power of eminent domain to force them to sell. The Constitution's Fifth Amendment requires the government to pay "just compensation" for any seizures of private property, and it requires that such "takings" be for "public use." The Fort Trumbull residents argue that their land is being taken not for public benefit but for the use of businesses that will pay more taxes than they do -- a kind of private use the Constitution does not allow.

New London's project attracts little sympathy. The city's plans for some of the land are sketchy; some houses, for example, will be torn down so that the land can be used for "park support" -- whatever that may be. While cherished homes will have to go, somehow planners found a way to preserve a private social outfit called the Italian Dramatic Club, which at first was slated for demolition as well.

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But how should a court distinguish in principle between unworthy uses of eminent domain and ones that are essential for many local governments? Attorneys for the Fort Trumbull residents argue that private economic development that leads to jobs and higher tax revenue is not a legitimate "public use," but railroads, stadiums and successful inner-city redevelopments have often relied on eminent domain to take land from one owner for the apparent benefit of another private entity. Traditionally, the courts have shown great deference to legislatures as to what constitutes a public use. Letting the courts make those judgments case by case would greatly encumber many legitimate projects.

The takings clause was meant less to restrain government than to ensure that it pays fairly when it infringes upon private property. And while the public-use requirements forbid land seizures where no conceivable public purpose exists, that is not the case here. New London may have proceeded in a bullheaded fashion, and ideally voters can evict officeholders who behave that way. But New London is unquestionably a distressed city in need of economic development, and federal courts shouldn't be second-guessing the city's determination of how best to accomplish that very public goal.

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