The Tweed Airport Expansion: Can Connecticut & SCOTUS Redeem Themselves On Eminent Domain?
There are certain cases that every law student should read during law school and file away in the back of their minds in case they ever get the chance to relitigate the issues. Kelo v. New London – a 2005 U.S. Supreme Court case – is one of those cases. The Kelo Court issued a ruling allowing the town of New London, Connecticut to use eminent domain to take Susan Kelo’s waterfront home away and gave it to a commercial developer who planned to allow Pfizer and other companies to build facilities there. The developer couldn’t obtain financing, and her property lay dormant for five years. In 2011, the city of New London turned it into a dump for storm debris.
Justices Sandra Day O’Connor and Clarence Thomas’s Kelo dissents are two of the strongest dissents that I read during law school. In particular, Justice O’Connor summed up the consequences of Kelo as follows: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”
In other words, Kelo was one of the worst decisions that the U.S. Supreme Court has made in its history.
The city of New Haven – operating under the auspices of Kelo – is poised to follow New London’s example and strip some of Connecticut’s hardest-working families of their homes in the name of development. The development at issue? New Haven has struck a deal with Avports, a Goldman Sachs company, to expand Tweed Airport into an nationwide hub. The terms of the deal are particularly telling. Avports will replace Tweed’s quasi-public authority as the supreme managing authority for the airport, and it will get a 43 year lease on the airport. In exchange, it will invest $70 million into expanding the airport and approximately another $30 million on maintaining it, thus relieving taxpayers of their responsibility to fund the airport.
The Tweed Airport expansion is likely to require eminent domain to accomplish, and there will be residents who will refuse to sell their homes, forcing the city to use eminent domain to evict them and give their property to Goldman Sachs for the development.
There is something fundamentally offensive about the proposition that a government can play reverse Robin Hood. Our country has endured on a basic principle for centuries – what is yours is yours, and it is sacred. To that end, we prohibit the government from entering your home without a search warrant or your consent. Court cases that hold that the government can take your house at will are fundamentally offensive to both what the law is and the founding principles of our country.
As Justice Thomas explained in his Kelo dissent, the Fifth Amendment does not authorize the government to seize your property. It prohibits it from seizing your property unless it is for a public use and it pays you just compensation. Taking your property and giving it to another private party is not taking it for a public use. It’s heavy-handed government robbery.
There will different aspects to a case regarding the Tweed expansion, most notably that a common carrier appears to be at play here. Those different aspects could complicate a potential case, but it is a case that needs to be brought.
I didn’t go to law school to litigate the easy cases though. When the City of New Haven comes to kick those people out of their homes, I hope that they call me. I have promised myself to do everything in my power to reverse Kelo. With a reconstituted U.S. Supreme Court, I have solid hopes that it will overrule Kelo, thus allowing Connecticut to redeem itself.
In looking at the Tweed Master Plan, I am
unclear if eminent domain is a part of it. How would a person confirm?
The Tweed lease agreement has a section allowing the City of New Haven to use eminent domain to acquire property that the parties involved in the Tweed expansion can’t buy because the owners refuse to sell. Because the Tweed expansion was planned, it necessarily required specific planning as to the properties or area that would need to be acquired. Because of the backlash in Connecticut over New London’s use of eminent domain for Susan Kelo’s house – a case that went to the US Supreme Court, no one will publicly hint that eminent domain is in the plans. Instead, the property owner will be served with civil process for the eminent domain, and they will be evicted by a state marshal if necessary.
The Tweed New Haven Airport Master Plan – Runway Protection Zone, includes entire neighborhoods located in East Haven, CT. Do the homes and land area fall under the phasing plan from 2022-2040 Land Acquisition/Obstruction Removal? Does the FAA require all planned airport elements including Runway Protection Zones to be on airport property. If the proposed RPZ is not owned by the airport, even if the airport may or may not have an air rights easement – does it equate to land acquisition? Are neighborhoods considered incompatible land use?
Table 1-3 Capital Improvement Program Phasing Plan
AC 150/5300-13 Airport Design
I have not given it that detailed of a look, and I certainly am reluctant to get into a detailed analysis of it without being retained first. Generally speaking though, my understanding is that they will need to acquire land to expand the runways as well as provide a buffer zone. That land is currently residential land. Practically speaking, they have two options: Buy any resistant landowners out at a price well above market value or utilize eminent domain.
Given the noise problems, I believe that most people will agree to be bought out. There will be one or two holdouts who won’t budge no matter what they’re offered. Those people will have their land taken by eminent domain in the end, and those are the people that I would love to represent.
I appreciate your response. The matter is getting stickier and stickier. The EA is out now and public comment open. https://www.tweedmasterplan.com/nepa-documents