You asked for a summary of LCO No. 33, “An Act Limiting the Use of Eminent Domain By Municipalities and Municipal Development Agencies and Establishing an Office of Property Rights Ombudsman.” This bill is scheduled for a Public Hearing before the Judiciary Committee on October 6, 2005.

SUMMARY

This bill prohibits political subdivisions and other parties with eminent domain power from beginning or pursuing condemnation or eviction under a redevelopment or development plan until the General Assembly (1) enacts substantive changes to the use of eminent domain or (2) repeals this provision. This also applies to pending condemnation or eviction proceedings (§ 3).

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 (§ 1). The bill also prohibits a municipality from condemning real or personal property for a municipal development project (§ 2).

The bill creates an Office of Property Rights Ombudsman to develop expertise in the law regarding taking private property, assist agencies that have eminent domain powers, advise property owners, identify government actions with potential takings implications and advise agencies, inform the public, mediate or conduct or arrange for arbitration in disputes if requested by a private property owner, and recommend changes to the legislature. The bill includes other provisions regarding the office, staff, and the property rights ombudsman who directs the office (§§ 4-9).

The municipal powers statute generally authorizes towns to acquire property for the purposes of the municipality and public uses or purposes. The bill eliminates the encouragement of private commercial development as one of the examples of a public use or purpose (§ 2).

EFFECTIVE DATE: Upon passage except the ombudsman provisions are effective July 1, 2006.

OFFICE OF PROPERTY RIGHTS OMBUDSMAN (§§ 4-9)

Duties

The bill creates an Office of Property Rights Ombudsman, within the Office of Policy and Management for administrative purposes only. The office, headed by the property rights ombudsman, must:

1. develop and maintain expertise in and understanding of (a) federal and state constitutional provisions governing taking private property, (b) statutory provisions allowing state or local agencies to take private property, and (c) case law interpreting these provisions;

2. assist state and local agencies that have eminent domain powers in applying the constitutional and statutory taking provisions;

3. assist state or local agencies with the power of eminent domain, at their request, in analyzing actions with potential takings implications;

4. advise private property owners who have a legitimate potential or actual takings claim against a state or local agency that has the power of eminent domain;

5. identify state or local government actions that have potential takings implications and advise the agency about them, if appropriate;

6. provide information to private citizens, civic groups, and other interested parties about takings law and their rights;

7. mediate or conduct or arrange arbitration of disputes between private property owners and government agencies, if requested by a private property owner; and

8. recommend to the legislature changes that the ombudsman believes should be made to the takings laws.

The bill requires public agencies and other entities with eminent domain powers to comply with the office’s reasonable requests for information and assistance.

The ombudsman can adopt regulations to implement the bill’s provisions.

Property Rights Ombudsman and Staff

Under the bill, the property rights ombudsman is appointed by the governor with the consent of either house of the General Assembly. The ombudsman is designated a department head and serves at the governor’s pleasure for up to four years, unless reappointed. The ombudsman must be an elector and either an attorney or someone with expertise and experience in real estate sales, real estate appraisals, or land use regulation. The ombudsman must not have been employed or serving in an official capacity with respect to an eminent domain procedure within one year of appointment.

The bill authorizes the office, within appropriations, to hire up to three staff but more can be added as the office’s requirements and resources permit.

Prohibitions. The bill prohibits the ombudsman and office employees from:

1. being employed or holding a position in a public agency or entity with eminent domain powers;

2. receiving or having the right to receive, directly or indirectly, remuneration under a compensation arrangement with respect to an eminent domain procedure; and

3. knowingly accepting employment with a public agency or entity with eminent domain powers for one year after terminating services with the office.

Office Account in the General Fund

The bill allows the office to apply for and accept grants, gifts, and bequests of funds from states, federal and interstate agencies and independent authorities, private firms, individuals, and foundations in order to carry out its responsibilities. It creates a property rights ombudsman account as a separate nonlapsing account in the General Fund and any funds received are credited to that account for the office’s use in performing its duties.

BACKGROUND

Eminent Domain Statutes

A number of statutes authorize the use of eminent domain (see OLR Reports 2005-R-0578 and 2005-R-0583).

Kelo v. City of New London

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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