You asked for a summary of LCO No. 34, “An Act Limiting the Use of Eminent Domain for Private Business Development. ” This bill is scheduled for a Public Hearing before the Judiciary Committee on October 6, 2005.

This bill prohibits use of eminent domain to acquire private property for private commercial development without the owner’s consent, except in certain circumstances. These rules apply regardless of any other law and they apply to the state, political subdivisions, and any other condemning entities (§ 1).

The bill eliminates the ability of a development agency to acquire property within a municipal development project area by eminent domain. Under current law, an agency can do so if approved by the municipality’s legislative body. Under the bill and current law, a development agency could still acquire property by purchase, lease, exchange, or gift (§§ 8-9).

The bill prohibits an implementing agency from condemning property for a development plan under the Economic Development and Manufacturing Assistance Act without the owner’s consent (§ 10). Under the bill and current law, the municipality’s legislative body must authorize the use of condemnation and the property must be necessary or appropriate for the project.

The bill changes the definition of a redevelopment area and appears to eliminate the authority to designate a redevelopment area solely because the area is deteriorating or detrimental to the welfare of the community. The bill also adds a requirement that a majority of the structures in the redevelopment area be deteriorated, substandard, or detrimental (§ 3).

The bill changes provisions on urban renewal projects and a town’s plan under the urban renewal provisions and appears to eliminate urban renewal projects and town plan provisions solely regarding deteriorating areas (§§ 5-6).

The bill also eliminates references to deteriorating areas and conditions and the impact on the welfare of residents in the declaration of purpose for redevelopment projects, urban renewal projects, and state aid (§§ 2, 4, 7).

EFFECTIVE DATE: Upon passage and applicable to actions in which a final judgment was rendered beginning January 1, 2005.

The bill prohibits use of eminent domain to acquire private property for private commercial development without the owner’s consent, except in certain circumstances. These rules apply regardless of any other law and they apply to the state, political subdivisions, and any other condemning entities.

The prohibition does not apply to acquiring property to transfer or lease to private entities that (1) are public utilities or common carriers or (2) occupy an incidental area within a publicly-owned project. It also does not apply to property that poses a threat to public health and safety when the:

1. premises is a public or attractive nuisance because of its physical condition, use, or occupancy;

2. dwelling is unfit for human habitation because it is dilapidated, unsanitary, unsafe, vermin-infested, or lacking in facilities and equipment required by the municipal housing code;

3. structure is a fire hazard or dangerous to the safety of people or property;

4. structure is unfit for its intended use because the utilities, plumbing, heating, sewerage, or other facilities have been disconnected, destroyed, removed, or rendered ineffective;

5. lot or parcel is vacant or unimproved, is in a predominantly built-up neighborhood, and has accumulated trash and debris or is a haven for rodents or vermin due to neglect or lack of maintenance;

6. property has tax delinquencies exceeding its value;

7. property has code violations affecting health or safety that have not been substantially rehabilitated within a year of receiving notice to rehabilitate;

8. property poses a threat to public health or safety because of environmental contamination; or

9. property is abandoned.

Current law defines a redevelopment area as an area that is deteriorated, deteriorating, substandard, or detrimental to the safety, health, morals, or welfare of the community. Current law allows a redevelopment area to consist partly or wholly of vacant or unimproved land or land with structures and improvements and may include structures that are not substandard or insanitary that are essential to complete an adequate unit of development if the redevelopment area is deteriorated, deteriorating, substandard, or detrimental.

The bill changes this definition by deleting reference to deteriorating areas and the welfare of the community. Thus it appears to eliminate the authority to designate a redevelopment area solely because the area is deteriorating or detrimental to the welfare of the community. The bill also adds a requirement that a majority of the structures in the redevelopment area be deteriorated, substandard, or detrimental.

The bill also eliminates references to deteriorating areas and conditions and the impact on the welfare of residents in the declaration of purpose for the redevelopment chapter.

URBAN RENEWAL PROJECTS (§§ 4-6)

Current law authorizes (1) an urban renewal project to include undertakings and activities to eliminate and prevent the development or spread of slums or substandard, insanitary, blighted, deteriorated, or deteriorating areas and (2) a municipality’s legislative body or designated public officer or public body to prepare a workable program to, among other things, deal with urban slums and blighted, deteriorated, deteriorating areas.

The bill changes these provisions by eliminating reference to deteriorating areas. Thus it appears to eliminate urban renewal projects and town plan provisions solely regarding deteriorating areas.

The urban renewal project statutes contain a declaration of purpose. The bill also eliminates reference to deteriorating areas in this declaration.

Current law contains a declaration of policy that substandard, insanitary, deteriorated, deteriorating, or blighted areas exist; they impair the growth and development of towns; are adverse to the public health, safety, morals, and welfare of inhabitants; and towns cannot rehabilitate the areas without state financial assistance and that assistance is a public use.

The bill eliminates references to deteriorating areas and the impact on the welfare of residents.

A number of statutes authorize the use of eminent domain (see OLR Reports 2005-R-0578 and 2005-R-0583). The bill’s provisions on the use of eminent domain for private commercial enterprise appear to apply to the following statutes.

1. Under the urban sites remedial action program, the Department of Economic and Community Development commissioner in consultation with the Department of Environmental Protection commissioner can condemn polluted commercial or industrial property to remediate the pollution and lease or sell the property to promote business growth or expansion through the reuse or redevelopment of the property (CGS §§ 22a-133m, 48-9).

2. The Office of Policy and Management secretary can take certain property related to the Adriaen’s Landing project (CGS §§ 32-655 and -658).

3. A municipal corporation can take property located within a neighborhood revitalization zone that is identified in a strategic plan, to deal with substandard, insanitary, and blighted neighborhoods (CGS § 7-600 et seq. and 48-6).

4. Under the redevelopment statutes, a redevelopment agency can acquire property by eminent domain with approval of the municipality’s legislative body. The stated statutory purpose of these provisions is to deal with substandard, insanitary, deteriorated, deteriorating, slum, or blighted areas and acquiring property to eliminate those conditions, prevent their recurrence, remove structures, improve the sites, and dispose of the property for redevelopment (CGS § 8-124 et seq. , also see §§ 2-3 of the bill).

5. A redevelopment agency has the powers necessary or convenient to carry out urban renewal plans and projects, including powers conferred on redevelopment agencies for redevelopment projects. This includes eminent domain (CGS § 8-143, also see §§ 4-6 of the bill).

6. If a municipality’s legislative body finds that acquiring non-contiguous single parcels designated in a community development plan is necessary to prevent the spread of slum or blight, the municipality or the community development agency acting in its name can acquire the property. The land can be acquired as under the redevelopment statutes, which includes eminent domain (CGS § 8-169e).

7. A development agency can, with approval of the legislative body and in the municipality’s name, acquire property by eminent domain within the area of a development plan (CGS § 8-193, also see §§ 8-9 of the bill).

8. An urban rehabilitation agency can recommend to the municipality’s legislative body that abandoned industrial and commercial property be taken by eminent domain (CGS § 8-293).

9. Under the economic development and manufacturing assistance act, an agency implementing a develop plan can, with approval of the municipality’s legislative body and in the name of the municipality, condemn property that is necessary or appropriate for the project as identified in the plan (CGS § 32-224, also see § 10 of the bill).

10. The Capital City Economic Development Authority can acquire property by condemnation (a) in connection with the convention center facilities, hotel, on-site related private development, and related infrastructure improvements or (b) that is necessary or desirable to effectuate the purposes of the authority for the convention center project and hotel (CGS §32-602).

In Kelo v. City of New London the U. S. Supreme Court ruled that New London could take privately owned properties for private development under its economic revitalization plan (125 S. Ct. 2655, June 23, 2005, http: //www. supremecourtus. gov/opinions/04slipopinion. html). The Court held that since the plan served a public purpose, it satisfied the U. S. Constitution’s public use requirement, which bans government from taking land for public use without just compensation. Relying on prior decisions, the Court interpreted public use as being the equivalent of “public purpose. ” OLR Report 2005-R-0560 analyzes that opinion.

The decision upheld the Connecticut Supreme Court’s 2004 Kelo decision (268 Conn. 1), which found that New London’s actions did not violate either the Connecticut or the U. S. constitutional bans against taking property for public uses without just compensation. OLR Reports 2004-R-0394 and 2004-R-0401 analyze that opinion.

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