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Abstract

A traveler passing through the Fort Trumbull area of New London, Connecticut, in recent years would likely not find it all that noteworthy. The area is not home to shiny skyscrapers or fancy hotels. There are few modern architectural designs at which to marvel. Instead, the area is dotted with seemingly "ordinary" single-family homes, apartments, and other structures. While the area may not be as aesthetically pleasing as wealthier or more modern neighborhoods, it is still home to many residents. Some local residents have lived in the same houses for decades. Others have only recently moved to the area but nonetheless have quickly come to appreciate the scenery and proximity to the water. Still others have owned investment properties in the area for several years and have continuously spent time and money on improvements. As citizens of the State of Connecticut and the United States, these property owners are afforded the constitutional assurance that the government will be precluded from taking their property absent two requirements: the taking is for a "public use" and the owners receive "just compensation" for their property. These constitutional limits imposed upon the government are clearly necessary. Without such restraints, the government could whimsically divest individuals of arguably their most valuable asset. Balanced with this right to freely possess property is the governmental need to acquire land for the purpose of building highways, railroads, and other large-scale public projects. Regardless of the disputes that may erupt concerning the adequacy of monetary compensation for the view enjoyed from one's front porch or from the comfort of a life-long home, the Founders of this country thought it necessary to afford the sovereign with such power as long as the property was being taken for a public use. Because the power of the government to exercise eminent domain is confined to public uses, legislators, courts, and scholars have long debated the appropriate interpretation and meaning of the phrase "public use." Over the course of the twentieth century, interpretation of public use has grown exceedingly broad. The most recent attempt to broaden the meaning of public use has arisen in the context of governmental takings purely for the purpose of economic redevelopment. Illustratively, in January 2000, the City of New London, Connecticut, acting pursuant to Connecticut law, authorized a development corporation to exercise the power of eminent domain in conjunction with its plan to economically rejuvenate the distressed Fort Trumbull area. The power was to be exercised only if negotiations with property owners proved unsuccessful. Upon the refusal of Susette Kelo and a handful of her neighbors [hereinafter property owners] to accept the development corporation's monetary offers, eviction notices were tacked to their doors the day after Thanksgiving in November 2000. The property owners sought to enjoin the development corporation from exercising the city's eminent domain powers, claiming that the use of eminent domain would ultimately benefit private entities. Eventually, the United States Supreme Court found the dispute at its doorstep, granting certiorari to the decision of the Connecticut Supreme Court which ruled wholly in favor of the city. On review, the Court upheld the decision, affording great deference to the determination of the Connecticut General Assembly. This Note illustrates that by affording such a high level of deference to state legislature's determination that economic development is a legitimate public use pursuant to the Takings Clause of the United States Constitution, the Court markedly extended its prior eminent domain precedent and lessened the constitutional rights of individual landowners. These rights have been slowly eroded over the past fifty years, and the Court's decision in Kelo serves as a signal that this erosion will continue indefinitely. As is demonstrated throughout this Note, it is now up to the individual states-either through state constitutional interpretation or legislative action-to counterbalance the Kelo decision and refortify the fundamental right to possess individual property. Part II of this Note provides a general overview of the progression of eminent domain jurisprudence as well as New London's development plan. Part III presents a detailed factual background of the case of Kelo v. City of New London. Particular attention is paid to the statutory and constitutional analysis applied by the Connecticut Supreme Court as well as the United States Supreme Court. Part IV provides a critical analysis of the Court's majority opinion, revealing a subtle, yet significant departure from its prior precedent when faced with the responsibility to review the constitutionality of the proposed use of eminent domain. Finally, this Note presents suggestions for reestablishing the rights of individual property owners. A suggestion for heightened judicial review of economic development takings devised by the Michigan Supreme Court in County of Wayne v. Hathcock is examined as well as state legislative action with a special emphasis on the State of Nebraska and the recent response of the Nebraska Unicameral.

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