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Connecticut's Eminent Domain Laws and Property Rights

Connecticut is the home of the landmark — some would say “notorious” — decision by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), upholding the government’s power to forcibly take land from one private owner and then convey it to a private developer for the purpose of redeveloping the land,…maybe. New London’s local redevelopment agency seized dozens of single-family homes and businesses in a much-loved, solid-as-a-rock, working class neighborhood without any real assurance that the developer’s private project would actually be built. A decade and half later, proof positive of the failure of the courts in that litigation can be seen at the site that is still lying fallow. Nothing built. All the homes and businesses destroyed. All the families gone.

The Kelo case arose under Connecticut’s unusual, permissive provisions regarding redevelopment, but the balance of the eminent domain law remains typical. While 43 states changed their laws in one way or another after Kelo, Connecticut of all places did practically nothing, enacting only the watered-down Public Act 07-141, adding a little more procedure and not much else. Unlike several other states, Connecticut does not provide for the recovery of a landowner’s attorneys’ fees in defending against an eminent domain action and seeking just compensation, except in the rare case when the government abandons the eminent domain proceeding or a court makes a final judgment that the eminent domain may not be used. In some instances, the property owner may recover expert witness fees and costs.

The Castle Coalition, a project of the Institute for Justice, a nonprofit legal organization, gives Connecticut’s eminent domain laws a grade of “D”. Consequently, in Connecticut, it is essential to focus on the pre-acquisition negotiation and bargaining process, and to marshal the best of the experts to “win” a case short of trial.

For Connecticut’s eminent domain statutes, go to Title 835, Sections 48-1 through 48-30 and for the authority to use eminent domain in redevelopment, the statutes applied in the Kelo case, go to Chapter 130 and Chapter 132

Meet OCA's Connecticut Attorney

Dwight H. Merriam, CRE

Dwight H. Merriam, CRE

Dwight H. Merriam counsels landowners, developers, corporations and individuals in land use, real estate and condemnation litigation matters.

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A Summary of Connecticut's Eminent Domain Laws

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    An extraordinarily wide variety of state and local entities in Connecticut, and even corporations, have the power to take private property by eminent domain. The State and its departments have that power, including the: Department of Transportation (DOT), Department of Energy and Environmental Protection, Department of Public Works (DPW), Department of Economic and Community Development (DECD), Office of Policy and Management (OPM), and the Connecticut State University System.

    Municipalities, and municipal and regional authorities, can also take by eminent domain. In addition to the cities and towns themselves, the eminent domain power vests in water pollution control authorities; housing authorities; parking authorities; redevelopment agencies; municipal and regional resource recovery authorities; school districts in towns, cities, and boroughs; and corporations authorized to supply inhabitants with water.

    Even quasi-public agencies have the power to take your land by eminent domain, among them: New York's Metropolitan Transportation Authority; Connecticut's Public Transportation Authority; the Connecticut Resources Recovery Authority (CRRA); the Lower Fairfield County Convention Center Authority; and the Capital City Economic Development Authority.

    Still other entities are authorized under Connecticut law to take property, including a municipal electric energy cooperative; a transit district; a port authority; railroads; a corporation that constructs or operates a natural gas pipeline; cemetery associations; non-profit hospitals; and a cooperative under the electric cooperative act.

  • What are the Legal Pre-requisites to Exercising the Power?

    A public use or purpose is a condition precedent for acquisition by eminent domain. The redevelopment statutes make clear that redevelopment, including taking from a private property owner and then immediately transferring the property to a private developer, is a public purpose. Just compensation must be paid.

  • What Limitations or Defenses Exist?

    There must be a public purpose and thus a public use for a taking by eminent domain. It is for courts to decide if the use is a public use and the courts almost always side with the government. In an older Connecticut case, the Connecticut Supreme Court said that “[a] public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation.” Barnes v. New Haven, 140 Conn. 8, 98 A.2d 523 (1953). And 52 years later, the Connecticut Supreme Court in Kelo cited with approval a leading U.S. Supreme Court decision: “The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one." Kelo v. City of New London, 268 Conn. 1 (2004). (emphasis added, quoting Berman v. Parker, 348 U.S. 26 (1954).

  • What Constitutes a Public Purpose?

    A public purpose in Connecticut may be found even where a private person have been given the power of eminent domain, so long as “the benefit of the property taken is considered to be available to the general public. Connecticut College v. Calvert, 87 Conn. 421 (1913).

  • How is Just Compensation Determined?

    Just compensation is the fair market value based on the highest and best use at the time of the taking. Highest and best use is the use which will most likely produce the highest market value, greatest financial return, or the most profit.

  • How is Fair Market Value Defined?

    Fair market value is what a willing buyer would pay a willing seller.

  • What About Recovering Damages to Remaining Property?

    Yes. The Connecticut courts have been clear that a property owner can recover for damages to the remaining property: “The rationale behind looking not just to the value of the part of the condemnee's property taken, but also to consequential damages caused to the remaining property not taken, is that it is unjust to expect the condemnee to bear damages for which the public should stand.” Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 776 A.2d 1068 (2001).

  • Is the Landowners Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Generally, attorney’s fees are not recoverable, as noted above. Expert witness fees, such as those of appraisers, and other costs, may be recoverable if the judgment of the court exceeds the offer made by the condemning authority.

  • Can the Government Take Possession of the Landowner's Property Before Final Compensation is Paid?

    Yes, Connecticut is a so-called “quick-take” state. The condemning authority makes an offer, some negotiation then takes place, and if a value cannot be agreed upon, the condemning authority deposits into the court the amount it is willing to pay and then essentially conveys the property to itself. The property owner can withdraw the money from the court, is allowed to stay for a short time, and must decide whether to sue in court for more compensation.

REFERENCES AND LINKS

Connecticut

Attorney at Law
80 Latimer Lane
Weatogue, CT 06089
Tel:(860) 651-7077 | Mobile: 860-463-7233
dwightmerriam@gmail.com

www.linkedin.com
www.dwightmerriam.com
twitter.com

Throughout his extensive career, Dwight Merriam has held a number of leadership positions in some of the most prestigious national and international real estate and legal associations. He is designated member of the Counselors of Real Estate®, a member of the Anglo-American Real Property Institute, a Fellow of the American College of Real Estate Lawyers, a Fellow of the Royal Institution of Chartered Surveyors and a member of the Rocky Mountain Land Use Institute National Advisory Board. He is also Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the American Bar Foundation, and a Fellow of the Connecticut Bar Foundation.

In addition to his legal career, Dwight served in the Navy, including three tours in Vietnam. He left active duty after 7 years to attend law school but continued for 24 years as a reserve naval warfare officer. He was the senior advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill, where he taught both undergraduate and graduate courses in defense administration and military management. After 31 years of service, Captain Merriam retired from military service in 1999.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • In 2012, Dwight and a team of Robinson & Cole lawyers secured a $167,501,656 just compensation award for Gyrodyne Company of America, Inc. against the State of New York for the condemnation of 245.5 acres of property in a planned residential community in upstate New York.
  • Dwight also co-authored an amici curiae brief in the United State Supreme Court on behalf of the Rent Stabilization Association of New York, Inc. and Small Property Owners of New York, Inc. in favor of the property owner in the rent control case, Harmon v. Kimmel, No. 11-496, (cert. denied April 23, 2012).

Speaking Engagements

Dwight is often invited to speak at legal seminars, has been cited by the press and has appeared on national and public television discussing land use and property rights issues:

  • Radio Interview of Dwight Merriam regarding President Trump’s Border wall which was broadcast over several stations in Connecticut  on March 1, 2019. Click here to listen.
  • University of Connecticut, School of Law: 20th Thomas R. Gallivan Jr. Conference – Kelo: A Decade Later, “Eminent Domain and Economic Development,” March 20, 2015, Hartford, Connecticut.
  • International Academic Association on Planning Law and Property Rights (PLPR) Annual Conference, “The Global Spread of Private Communities,” February 27, 2015, Volos, Greece.
  • American law Institute: Eminent Domain and Land Valuation Litigation, “Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory Takings,” February 6, 2015, San Francisco, California.
  • International Municipal Lawyers Association teleconference, “2013 Land Use – The Year in Review,” co-presented with Professor Daniel Mandelker, Washington University School of Law, a national teleconference conducted on January 14, 2014.
  • National Business Institute: Eminent Domain from Start to Finish, “Challenging the Right to Take: Case Law and Recent Issues,” December 5, 2013, Cromwell, Connecticut.
  • National Business Institute: Eminent Domain from Start to Finish, “Ethics of Condemnation,” December 5, 2013, Cromwell, Connecticut.
  • Southern New England American Planning Association Conference: Planning at the Crossroads, “Land Use Law: What You Don’t Know WILL Hurt You – The Most Important Land Use Law Developments of the Last Year,” September 2012.
  • University of North Carolina, 2011 Commencement Speaker, Chapel Hill, North Carolina.
  • Connecticut Bar Association’s Fifth Annual Property Rights Seminar, “Recent National Developments,” December 2010.

Published Articles and Papers

Mr. Merriam has published hundreds of articles and eight books including The Takings Issue and Eminent Domain Use and Abuse: Kelo in Context. He has also written chapters in the seminal treatise on condemnation law, Nichols on Eminent Domain. Most recently, Mr. Merriam published an article on the taking of property for President Trump’s Border wall, entitled “Emergency Declaration To Blow Up President Trump’s Wall, which can be read here.

Professional Affiliations

  • Designated Member, The Counselors of Real Estate®, www.cre.org, an international organization of real estate professionals recognized as the leading advisors in complex real property matters. Dwight is among the fewer than 50 practicing attorneys who hold a CRE® designation.
  • Immediate Past Chair, American Bar Association’s Section of State and Local Government Law
  • Chair, Institute of Local Government Studies at the Center for American and International Law
  • Fellow, American Bar Foundation
  • Fellow, Connecticut Bar Foundation
  • Fellow, American College of Real Estate Lawyers
  • Fellow and Past President, American Institute of Certified Planners
  • Fellow, Royal Institution of Chartered Surveyors
  • Former Director, American Planning Association and Former Chair, APA’s Planning and Law Division
  • Member, Anglo-American Real Property Institute
  • Member, Rocky Mountain Land Use Institute National Advisory Board
  • Adjunct Professor, University of Connecticut School of Law and Vermont Law School
  • Board of Directors, Owners’ Counsel of America (2016-2019)

Education

  • University of Massachusetts, B.A., cum laude
  • University of North Carolina, Masters of Regional Planning
  • Yale University, J.D.

Bar Memberships and Admissions

  • Connecticut
  • Massachusetts
  • Connecticut Bar Association
  • American Bar Association

Honors and Awards

  • Recognized with the Professional Excellence Award by the Connecticut Law Tribune for his substantial contributions to the practice of law (2015)
  • Connecticut Super Lawyers, in the area of Land Use Law since 2006
  • Recognized as one of the Top 50 Super Lawyers in Connecticut, and as one of the Top 100 New England Super Lawyers
  • Recognized continuously since 1991 in The Best Lawyers in America® in the practice areas of Land Use & Zoning Law and Real Estate Law
  • Hartford Lawyer of the Year as recognized by The Best Lawyers in America® for Litigation – Real Estate (2014), Litigation – Land Use & Zoning (2013), Land Use & Zoning Law (2012), and Real Estate Law (2010)

Throughout his extensive career, Dwight Merriam has held a number of leadership positions in some of the most prestigious national and international real estate and legal associations. He is designated member of the Counselors of Real Estate®, a member of the Anglo-American Real Property Institute, a Fellow of the American College of Real Estate Lawyers, a Fellow of the Royal Institution of Chartered Surveyors and a member of the Rocky Mountain Land Use Institute National Advisory Board. He is also Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the American Bar Foundation, and a Fellow of the Connecticut Bar Foundation.

In addition to his legal career, Dwight served in the Navy, including three tours in Vietnam. He left active duty after 7 years to attend law school but continued for 24 years as a reserve naval warfare officer. He was the senior advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill, where he taught both undergraduate and graduate courses in defense administration and military management. After 31 years of service, Captain Merriam retired from military service in 1999.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • In 2012, Dwight and a team of Robinson & Cole lawyers secured a $167,501,656 just compensation award for Gyrodyne Company of America, Inc. against the State of New York for the condemnation of 245.5 acres of property in a planned residential community in upstate New York.
  • Dwight also co-authored an amici curiae brief in the United State Supreme Court on behalf of the Rent Stabilization Association of New York, Inc. and Small Property Owners of New York, Inc. in favor of the property owner in the rent control case, Harmon v. Kimmel, No. 11-496, (cert. denied April 23, 2012).

Speaking Engagements

Dwight is often invited to speak at legal seminars, has been cited by the press and has appeared on national and public television discussing land use and property rights issues:

  • Radio Interview of Dwight Merriam regarding President Trump’s Border wall which was broadcast over several stations in Connecticut  on March 1, 2019. Click here to listen.
  • University of Connecticut, School of Law: 20th Thomas R. Gallivan Jr. Conference – Kelo: A Decade Later, “Eminent Domain and Economic Development,” March 20, 2015, Hartford, Connecticut.
  • International Academic Association on Planning Law and Property Rights (PLPR) Annual Conference, “The Global Spread of Private Communities,” February 27, 2015, Volos, Greece.
  • American law Institute: Eminent Domain and Land Valuation Litigation, “Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory Takings,” February 6, 2015, San Francisco, California.
  • International Municipal Lawyers Association teleconference, “2013 Land Use – The Year in Review,” co-presented with Professor Daniel Mandelker, Washington University School of Law, a national teleconference conducted on January 14, 2014.
  • National Business Institute: Eminent Domain from Start to Finish, “Challenging the Right to Take: Case Law and Recent Issues,” December 5, 2013, Cromwell, Connecticut.
  • National Business Institute: Eminent Domain from Start to Finish, “Ethics of Condemnation,” December 5, 2013, Cromwell, Connecticut.
  • Southern New England American Planning Association Conference: Planning at the Crossroads, “Land Use Law: What You Don’t Know WILL Hurt You – The Most Important Land Use Law Developments of the Last Year,” September 2012.
  • University of North Carolina, 2011 Commencement Speaker, Chapel Hill, North Carolina.
  • Connecticut Bar Association’s Fifth Annual Property Rights Seminar, “Recent National Developments,” December 2010.

Published Articles and Papers

Mr. Merriam has published hundreds of articles and eight books including The Takings Issue and Eminent Domain Use and Abuse: Kelo in Context. He has also written chapters in the seminal treatise on condemnation law, Nichols on Eminent Domain. Most recently, Mr. Merriam published an article on the taking of property for President Trump’s Border wall, entitled “Emergency Declaration To Blow Up President Trump’s Wall, which can be read here.

Professional Affiliations

  • Designated Member, The Counselors of Real Estate®, www.cre.org, an international organization of real estate professionals recognized as the leading advisors in complex real property matters. Dwight is among the fewer than 50 practicing attorneys who hold a CRE® designation.
  • Immediate Past Chair, American Bar Association’s Section of State and Local Government Law
  • Chair, Institute of Local Government Studies at the Center for American and International Law
  • Fellow, American Bar Foundation
  • Fellow, Connecticut Bar Foundation
  • Fellow, American College of Real Estate Lawyers
  • Fellow and Past President, American Institute of Certified Planners
  • Fellow, Royal Institution of Chartered Surveyors
  • Former Director, American Planning Association and Former Chair, APA’s Planning and Law Division
  • Member, Anglo-American Real Property Institute
  • Member, Rocky Mountain Land Use Institute National Advisory Board
  • Adjunct Professor, University of Connecticut School of Law and Vermont Law School
  • Board of Directors, Owners’ Counsel of America (2016-2019)
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