October 28, 2016 | by Renée Flaherty Print

The Institute for Justice is defending Bob McGinnity from having his homes seized by the city of West Haven, Conn., to make way for a private redevelopment plan.

More than a decade ago, the U.S. Supreme Court shocked the nation when it upheld the condemnation of an entire neighborhood in New London, Conn., for “economic development.” This infamous instance of eminent domain abuse sparked a nationwide backlash: 44 states reformed their laws to provide greater protection for property owners, and nine state supreme courts made it more difficult for the government to abuse eminent domain. A decade after Kelo v. New London, however, cities and development agencies are trying to regain some of the power that they lost.

The land that New London acquired more than a decade ago after the Kelo case is today a vacant lot full of weeds and feral cats, and the promised development never occurred. Unfortunately, it seems that even Connecticut has forgotten the lessons of Kelo.

The city of West Haven has a redevelopment plan that calls for land to be acquired by the city and then transferred to a Texas developer, and a large chunk of the waterfront (currently devoted to mixed commercial and residential uses) to be turned into an outdoor shopping mall. Like New London, West Haven promises that the plan will create jobs and bring in revenue through property taxes, but it is not clear that the project will even be built. The developer has not secured its zoning permits, and it has no concrete plans to build whatsoever.

The project’s footprint includes the homes of Bob McGinnity and his elderly uncle, who live near the West Haven waterfront. Their properties have been in the family for more than 50 years. McGinnity, a Navy veteran and retired train conductor, owns and lives in the house he grew up in. He cares for his uncle, who recently suffered a debilitating stroke after the family heard news of West Haven’s plans to take their homes. McGinnity and his uncle don’t know where they will go if they lose their homes.

The developer does not even need the McGinnity homes. They are on the edge of the project, and omitting them would only cost the plan a few stores. McGinnity has offered to sell the back portions of his properties so that the project can move forward, but that is not enough for West Haven and the developer.

Handing over property to a private developer is not a public use, a distinction that the U.S. Supreme Court recognized in Kelo. The court drew a line between “carefully considered development plans” and “pretextual” transfers of property from one private party to another. This is exactly what is happening in West Haven. The city did not decide that it needed to build something and then acquire a developer; instead, the entire project was the developer’s idea. That is exactly what the Kelo decision prohibited.

The Institute for Justice (IJ), the nonprofit public interest law firm that litigated Kelo, has been monitoring the recent uptick in eminent domain abuse. In fact, IJ recently won a victory against eminent domain abuse in Atlantic City, N.J. Now, on behalf of the McGinnitys, IJ has sued West Haven and its redevelopment agency to stop them from making the same mistake that New London made a decade ago. This case puts IJ on a path back to the Connecticut Supreme Court — and, if necessary, even to the U.S. Supreme Court — to reconsider the Kelo decision. Although the court does not need to overturn Kelo to hold that what West Haven wants to do is illegal, this case is the perfect opportunity for it to do so.

Kelo was not a blank check for eminent domain abuse, and it is up to the McGinnitys to remind the courts of this.

Renée Flaherty portrait
Renée Flaherty is an attorney at the Institute for Justice. She represents Bob McGinnity and his family in their lawsuit against West Haven and its redevelopment agency. Learn More about Renée Flaherty >