Connecticut Homeowners Fight to Prevent City Taking Their Homes for Redevelopment Emminent domain

http://dailysignal.com/2015/09/16/connecticut-homeowners-fight-to-prevent-city-from-taking-their-homes-for-redevelopment/

Energy News Connecticut Homeowners Fight to Prevent City From Taking Their Homes for Redevelopment

Janet Rodriguez's house on First Avenue in West Haven, Conn., is one of the homes the city is approved the use eminent domain on to make way for a $200 million high-end mall. (Photo: Janet Rodriguez)

Every day, Janet Rodriguez sits at her home in West Haven, Conn., and she waits.

She waits for a knock at her front door, a knock she fears will bring news that Rodriguez and her family will be forced to leave the home they’ve lived in for nearly a decade. A knock that means the city has exhausted its efforts to negotiate with Rodriguez and her family and is moving to condemn their house to make way for a $200-million high-end mall.

Rodriguez, along with her neighbors on First Avenue, is fighting the city of West Haven to keep her home. But still, every day, she waits.

In 2005, a pregnant Rodriguez; her husband, Fernando; and their young son decided to leave New York for West Haven in search of more room for their growing family. The young mother had previously visited relatives who lived in the area, and the Connecticut town appealed to the family as a good place to raise their children.

They fell in love with a house on the east side of First Avenue, and for the last 10 years, it’s what the Rodriguez family have called home.

“Moving is hard for people,” Rodriguez said in an interview with The Daily Signal. “It’s very stressful, and to find another place to live and call your home—your home is memories. We’ve endured so many things in this house. Bad things have happened to us, but this is our house.”

In January, Rodriguez learned that the city and two developers were interested in her property, along with other homes and businesses along First Avenue, after a surveyor knocked on Rodriguez’s door and asked to take measurements of her property.

The city, Rodriguez later found out, was working with a developer to build a $200-million, 425,000-square-foot waterfront project called The Haven, a high-end mall that includes 100 outlet stores and six restaurants.

For months, Rodriguez never heard anything from the city regarding what land would be redeveloped for The Haven. Then, in May, a realtor knocked on her door and told Rodriguez the home was included in the redevelopment plan.

One month later, the West Haven City Council approved a plan giving the city and its development authority, the West Haven Development Authority, the ability to exercise its eminent domain powers and condemn Rodriguez and her neighbors’ properties to build The Haven.

“We pay taxes. This is our home,” Rodriguez said. “[Developers] don’t even know West Haven. They just look at the map and say we’re going to make a mall. They don’t even look at the people in the middle.”

Under the Fifth Amendment’s Takings Clause, the government can exercise its eminent domain power to take property from private residents if it satisfies two conditions: it’s for public use, and just compensation is provided.

However, over the last few decades, the definition of public use has broadened from what was traditionally thought of as the transfer of property for a school, bridge, or road to the transfer of property from one private party to another.

That change occurred in 2005, after Susette Kelo, a mother of five boys, led a years-long battle against the city of New London, Conn., in an effort to save her little pink house.

Officials in New London, located just 50 miles east of West Haven, exercised their eminent domain power to condemn Kelo’s home, along with property belonging to six other families, to make way for a hotel, restaurants, shops, and a renovated marina.

The redevelopment was intended to complement an adjacent Pfizer facility, but after the pharmaceutical giant left New London, the city’s redevelopment plans never panned out. Kelo’s pink house, which became a symbol of the fight, and her neighbors’ homes were demolished, but today, all that sits on the property is an empty field overgrown with weeds.

Kelo’s case against New London went all the way to the U.S. Supreme Court, which ruled in 2005 that the city was well within its rights under the Takings Clause to seize property under eminent domain for the purpose of transferring it to another private entity.

The ruling became one of the most despised in the high court’s history, and it sparked backlash from the public and state legislatures. After the Supreme Court’s decision was handed down in 2005, more than 40 states passed laws limiting the use of eminent domain for transfers of property from one private party to another. In 11 of those states, legislatures passed constitutional amendments.

In an interview with The Daily Signal, Brooke Fallon, activism manager for the Institute for Justice, pointed to the Kelo case as an example of how redevelopment plans can fall through. The Institute for Justice represented Kelo.

“In this situation, we have a town that’s 50 miles down the road from Kelo,” she said. “There’s an example down the street of how using eminent domain for private use can fall apart. All they have to do is see what’s going on there and that it’s a risky move for them. They should allow the property owners to stay.”

Next door to Rodriguez’s home sits property owned by Bob McGinnity, who has lived in West Haven for nearly 50 years.

A lifelong Connecticut resident and retired railroad conductor, McGinnity thought his family “upgraded” when they moved from nearby New Haven to West Haven when he was just a little kid.

Like Rodriguez, McGinnity didn’t know his home on First Avenue was going to be included in the redevelopment plan for The Haven, and like Rodriguez, he doesn’t plan to move.

“They say they’ll use eminent domain as a last resort,” he said in an interview with The Daily Signal. “I don’t know what that means. That means nothing. I don’t care if you say the very last resort; you’re taking my home.”

The developers, two “cowboys from Texas,” McGinnity said, have offered what he calls “fear-market value” for his home. However, he has no plans to accept the developers’ offers.

“What they want to give me compared to what they’re going to make from my property is quite wide of a difference,” he said, “and I also believe if you’re taking my house, you can’t tell me how much you want to give me.” The city council in West Haven, Conn., approved the use of eminent domain for properties in the city. The city plans to build a high-end mall on than 450,000 acres located along the water. (Photo: Bill Shettle/ZUMA Press/Newscom)

The city council in West Haven, Conn., approved the use of eminent domain for properties in the city. The city plans to build a high-end mall on more than 450,000 acres located along the water. (Photo: Bill Shettle/ZUMA Press/Newscom)

In the two months since the West Haven City Council approved the use of eminent domain for the properties where The Haven will be built, Rodriguez has received several offers from the developer to purchase her home.

However, after paying off the current mortgage on her First Avenue home, Rodriguez said she wouldn’t have enough money to make a down payment on a new home.

“To buy another house wouldn’t be like buying your first house,” she said. “It’s going to be harder to get another mortgage and good interest rate. We don’t want to start from the bottom again. It’s not being greedy. I have two kids. We’ve been here for almost 10 years.”

Rodriguez last heard from the developer on August 29, when the realtor working with the developers left her a voicemail saying they wanted to work with the family and help them get to “yes.” Rodriguez never called the realtor back.

According to the city, of the 56 parcels located on the land for The Haven, 48 are currently under contract.

In an email to The Daily Signal, Joe Riccio, the commissioner of Planning and Development for West Haven, said the city will negotiate with property owners if the developer’s negotiations fail.

“The city hopes that the Haven will provide much needed tax revenues and jobs for its citizens,” he said in the email. “Of equal importance is what The Haven will mean to the city of West Haven. This will be the largest investment in the city of West Haven in its history.

“It will make West Haven a destination, stimulate other development (it already has), and it will buoy the spirit of its citizens.”

While Rodriguez doesn’t blame the city for wanting good things for West Haven, she doesn’t see why the city has to take her home to accomplish its goals of bringing more revenue and jobs to the city. And she plans on fighting to keep her home.

“[My youngest son] said, ‘Mommy, why are you letting these people take our home?’ I said it’s not up to me. It’s up to the people who have the power and the money,” Rodriguez said. “I want him to see me fighting. I will fight to the end.”

"Under the Fifth Amendment’s Takings Clause, the government can exercise its eminent domain power to take property from private residents if it satisfies two conditions: it’s for public use, and just compensation is provided."

Note that the Founding States had originally decided that the personal privileges and immunities that the states had amended the Constitution to expressly protect, most of these protections listed in the Bill of Rights, did not apply to the states. In fact, the justices who had clarified the state eminent domain case of Barron v. Baltimore had clarified that, unless the states were specified, general prohibitions on government power in the Constitution applied only to the federal government, not to the states. “

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.”
…
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. ” —Barron v. Baltimore, 1833.

So before the 14th Amendment (14A) was ratified, the states arguably didn’t need an excuse to seize land.

It wasn’t until the states ratified the 14A (that amendment ratified under very questionable conditions (imo) that the states required themselves to respect the Constitutiion’s personal privileges and immunities as well.

BUT THERE’S A CATCH !!!

The congressional record shows that John Bingham, the main author of Section 1 of the 14th Amendment, had clarified that the 14th Amendment took away no state’s rights.

“The adoption of the proposed amendment will take from the States no rights [emphasis added] that belong to the States.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of first column)
“No right [emphasis added] reserved by the Constitution to the States should be impaired…” —John Bingham, Appendix to the Congressional Globe. (See top half of 1st column)
“Do gentlemen say that by so legislating we would strike down the rights of the State [emphasis added]? God forbid. I believe our dual system of government essential to our national existance.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of third column)

In other words, rights expressed in the Constitution as a prohibition of power on the feds, such as 1st Amendment prohibitions on certain powers of Congress to make laws, did not get applied to the states.

So let’s get back to prohibitions on government power versus constitutionally express rights in the context of the 5th Amendment’s imminent domain protections since that is a two-pronged right expressed in terms of a prohibition on government power as well as an express personal right.

While the 14th Amendment applied the “just compensation” aspect of the eminent domain clause to the states, as evidenced by Bingham’s clarification concerning states’s rights, that amendment did not apply the “public use" aspect of the eminent domain clause to the states imo.

This is why the Supreme Court’s opinion in Kelo v. New London was the constitutionally correct interpretation of the 5th Amendment in conjunction with the 14th Amendment where state power issues are concerned imo.

It remains that since the low-information citizens probably understand the Constitution based on the gossip and hearsay that they are fed that, until citizens work with their local and state government representatives to make state eminent domain laws that are more friendly to homeowners, the eminent domain aspect of the 5th Amendment is probably going to continue to be a “loose canon” for many citizens.

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