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New York Times
January 30, 2005

There Goes the Old Neighborhood, to Revitalization

Correction Appended

NEW LONDON, Conn., Jan. 17 - On a good day, Matt Dery can see Fishers Island, off the tip of Long Island, from his kitchen window here at the mouth of the Thames River. The view is one thing he loves about his home, and one reason he wants to stay.

But what Mr. Dery, his aged parents in the house next door, or the handful of other owners who still live nearby, cannot see is how long they will be able to stay here. Legally, their properties have belonged to the City of New London for four years. The city used its power of eminent domain to take their homes and some 90 other nearby properties in the hope of attracting new development, including improved housing and wealthier people.

"I think they don't want to have to look at us," said Mr. Dery's neighbor, Susette Kelo, a nurse who lives in a little pink cottage.

There are nine holdouts in the city's Fort Trumbull section, dozens of cases in the New York region and dozens more around the country in which property owners are fighting local governments to hang on to their homes and businesses. The municipalities want the land for new developments that will revitalize communities and bring in higher taxes. But it is the case in New London that is scheduled to be heard next month, when the United States Supreme Court hears arguments in Kelo vs. New London.

In Highland Park, N.J., the owners of a photography studio fear that a plan to redevelop Raritan Avenue, the main street in town, will force them out of a location they have occupied for 25 years. In Port Chester, N.Y., a small furniture plant is fighting a state development agency that wants its site for a Home Depot parking lot. And in town after town, people of modest means, often members of minority groups, complain that they are being moved to make way for people who either have more money or, in some cases, lighter skin.

The issue that binds them - whether a municipality can take someone's property through eminent domain and hand it over to developers in the name of economic development - will be aired on Feb. 22, when lawyers for Mr. Dery, Ms. Kelo and other New London holdouts have their day before the United States Supreme Court.

The issue is particularly fraught in the Northeast, where two trends have intersected to sharpen the struggle between the deeply held values of individual property rights and the public benefits of bringing aging neighborhoods back to life. One is the scarcity of suburban land available for development, as local communities and state governments organize to prevent sprawl and developers turn their eyes to the cities.

The other is the need for the region's aging small towns and cities to rebuild their tax bases, lest they sink deeper into poverty and abandonment.

"With eminent domain we can now get a large tract of land and bring back to the urban centers the retail, the shopping centers, the office parks," said Thomas Londregan, New London's city attorney. "Or do we have to wait for our urban areas to deteriorate and decay into blight before we get the blessing to try to help ourselves? I hope not."

The courts, including the Supreme Court, have generally supported Mr. Londregan's argument that economic growth amounts to an overriding public benefit. But now an odd alliance of conservative and libertarian property rights campaigners and civil rights advocates are hoping that the Supreme Court's decision to hear the New London case could signal a shift. The case is an appeal by the New London residents of a unanimous decision last year by s the Connecticut Supreme Court upholding the city's condemnation rights.

Dana Berliner, a lawyer with the Institute for Justice, a libertarian group, and perhaps the country's leading opponent of the use of eminent domain for economic development, has counted nearly 40 cases of private land condemned or slated for condemnation for private development in Connecticut. There are more than 60 each in New York and New Jersey, and many more across the rest of the country, she said.

Ms. Berliner notes that the Fifth Amendment prohibits the taking of private property for public use without just compensation; this, she argues, does not mean that property may be taken for economic development.

"The Constitution says public use, not public welfare, not public benefits," she said in an interview. "And for many years eminent domain was used for exactly the kinds of thing you would think, like roads and irrigation."

But in the 1950's the power of eminent domain was used for slum clearance. Ms. Berliner said she believed that that opened the door to its widespread use as an economic development tool. Since the logic of economic development anywhere is to lift property from a low-economic use to a higher economic use, the trend favors the well-to-do, she said.

"It is usually an effort to go from lower to middle class, and from middle to upper class," Ms. Berliner went on. "It is almost always an attempt to replace poorer people with richer people and middle income businesses with upscale businesses."

In New York City, the Empire State Development Corporation used its powers of eminent domain to assemble a portion of the property at Eighth Avenue and West 40th Street for construction of a new headquarters for The New York Times Company.

In New Jersey, Ken Goldman, a lawyer with the South Jersey Legal Aid Society, is trying to rebuff an effort to displace families in Ventnor from a multiblock section of the city to build multifamily homes, arguing that the civil rights of its largely Latino residents are being violated. City officials say they will use eminent domain only as a last resort.

"In New Jersey," Mr. Goldman said, "because of the scarcity of land and restrictions of growth, more and more municipalities are turning inward for redevelopment, and the people being affected most are in the lower-income sections. Redevelopment for them means a ticket out of town."

In the Northeast, the pressure to condemn for redevelopment appears to be particularly advanced along rivers or ocean shoreline, whether here on the banks of the Thames, or along the Delaware in the Cramer Hill section of Camden, N.J., where 1,200 families are facing the condemnation of their homes for economic development. This affinity of developers for projects with views like Mr. Dery's strikes Ms. Berliner as particularly unfair.

"If you live near water or if you have a good view, you are really going to be under pressure to move," Ms. Berliner said. "It's like the poor don't deserve to have a nice view."

The officials leading the fight in New London are frank, saying they hope to attract higher-income professionals to the Fort Trumbull area where Mr. Dery, who is the home delivery manager for The New London Day, and his remaining neighbors live.

The city is a blighted area by state designation and half of its property is tax-exempt; much of its old frame housing dates from the early 20th century and is second rate; and an already high unemployment rate worsened in 1996 when the Naval Undersea Warfare Center moved to another town, taking 1,400 jobs with it.

The city saw a chance to rebound shortly after that, when the Pfizer pharmaceutical company built a $350 million research center along the Thames below Fort Trumbull, a mid-19th century installation used by troops during the Civil War. The city and state governments have since created a new park around the fort, opened the riverfront to public access for the first time in years, filled in a flood plain and cleaned up the Navy's asbestos-riddled site. Now it wants new homes for new people to fill the riverfront blocks around the fort.

And not just any housing, and not just any people either.

"We need to get housing at the upper end, for people like the Pfizer employees," said Ed O'Connell, the lawyer for the New London Development Corporation, the city's redevelopment arm. "They are the professionals, they are the ones with the expertise and the leadership qualities to remake the city - the young urban professionals who will invest in New London, put their kids in school, and think of this as a place to stay for 20 or 30 years."

The nondescript frame and brick buildings of the holdouts look all the more forlorn among the empty lots where their neighbors once stood. One by one, residents have been moving out and their homes have been razed. Mr. Dery, Ms. Kelo and the other holdouts say they would be delighted to have an affluent new world grow up around their old houses, as long as they can stay.

But developers want open space, Mr. O'Connell said, not a checkerboard of old and new to work around, and particularly not the few old houses that remain in Fort Trumbull.

"You're not going to get a developer to put a $10 million development next to some of these houses," he said on a tour of the area recently.

For Mr. Dery's parents, the prospect of moving is particularly burdensome. The family owns four properties and the city has told them it will pay them half a million dollars for them. But Wilhelmina Dery, 87, was born in the house she lives in with her husband, Charles, who is 85. The offer is no consolation to her, said her son, Matt Dery.

"We get this all the time," he said:" 'How much did they offer? What will it take?' My parents don't want to wake up rich tomorrow, they just want to wake up in their own house."

Mr. Londregan, the city's lawyer, realizes that it is hard for New London to make a generalized case for citywide improvement in the face of specific hardships for the people caught in the path of progress.

"You look around the urban centers in this country, and you read about how they need help," he said. "But you may have to take somebody's home, and then what do you say to that little old lady, who's 87 years old, when it's time to move? That there is a greater good? That's a tough issue."

Correction: February 25, 2005, Friday:

An article on Jan. 30 about a legal challenge by property owners in New London, Conn., to the city's seizure of their land under its power of eminent domain misstated the proposed use for a site in Port Chester, N.Y., now occupied by a furniture plant. The plan is for a Costco store, not a Home Depot parking lot. The article also referred incorrectly to the government body behind the plan. It is a local development agency, not a state one.

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