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WASHINGTON — The plight of Connecticut homeowners whose homes may be condemned to make way for commercial development pulled at the heartstrings of Supreme Court justices on Tuesday. But it was less certain that the justices’ sympathies would translate into enough votes for the homeowners to win in the case of Kelo v. City of New London . The closely watched property rights case was argued before a packed court chamber, but before only seven justices. Chief Justice William Rehnquist was absent because of his continuing battle with thyroid cancer, and Justice John Paul Stevens was out because of an apparent delay in his flight to D.C. from out of town. Justice Sandra Day O’Connor presided over the court in their absence and said that the two “reserve the right” to participate based on reviewing written briefs and transcripts. The Connecticut case does not challenge the typical “public use” eminent domain power allowed by the Fifth Amendment that enables cities and states to condemn property for highways, fire stations and the like. But New London resident Susette Kelo and others say it would be an abuse of that power for the city to take their homes for commercial uses that will complement a new Pfizer company facility nearby. “Every home, church or corner store” is vulnerable, said Kelo’s lawyer Scott Bullock, if such takings can be justified because the new use will generate more tax revenue than the original use. “There have to be limits,” he said. Bullock, a lawyer with the Institute for Justice, which has challenged alleged eminent domain “abuse” nationwide, said the ultimate public benefit of the takings in New London and elsewhere is dubious and depends on the economic success of the private owner. In New London, the city plans to lease the condemned property to private developers for $1 a year. Justice David Souter said, “It bothers a lot of us” that unblighted homes could be condemned for the benefit of another private owner. “You’re taking the home of someone who doesn’t want to sell,” Justice Antonin Scalia said to Wesley Horton, the lawyer for New London, at another point. “That counts for nothing?” And Justice Sandra Day O’Connor pointedly asked Horton whether a city could condemn a Motel 6 just to make way for a Ritz-Carlton Hotel. “Is that OK?” she queried. Horton replied yes. That prompted O’Connor to wonder aloud why cities shouldn’t be forced to buy properties on the open market when there is no “public use” rationale for using eminent domain. Such a rule would create “severe assembly problems,” Horton replied, referring to the need for cities to aggregate several properties for large developments without confronting “holdouts” and other problems that could arise if government bought property on the open market. “Some plaintiffs won’t sell at any price,” he said. That reply and others seemed to give justices pause, reflecting concern about whether courts should second-guess the land use decisions of city and state governments. In New London, Justice Ruth Bader Ginsburg said, the “pitiful fact” is that the entire city was depressed economically, even if the specific properties to be taken were not blighted. “More than tax revenue was at stake,” she said. Justices Souter and Anthony Kennedy also noted that the “public use” benefit flowing from the condemnations that made it possible to build railroad lines to the West depended on the economic success of the railroads. “There isn’t another practical way to do it,” said Souter. Justices also seemed concerned that to support the homeowners, they would have to overturn two precedents: Berman v. Parker from 1954, and Hawaii Housing Authority v. Midkiff, from 1984. In these rulings and others, the court gave deference to local governments to determine the “public use” benefits of the takings. Kennedy at one point offered up what seemed to be a compromise by focusing on the “just compensation” requirement when government takes private property. He said that when homes are taken for private development rather than for obvious public uses, homeowners could be paid a “premium” above the ordinary price. Justice Stephen Breyer picked up on the idea, too. Horton’s only reply was that in the New London development, homeowners have been offered relocation loans to assist them in moving to comparable properties. As the hour of arguments wound down, Horton, a partner at Horton, Shields & Knox in Hartford, Conn. said he would conclude his argument with “four words the court should consider.” But his red light went on before he could state the four words, and he sat down silently. As his adversary Bullock rose to deliver a rebuttal, a smiling Justice Anthony Kennedy asked him if he knew the four words Horton was about to utter. Bullock said no, but at a press conference outside the court afterward, Horton revealed them: federalism, boundaries (as in, “not for the court to decide where boundaries ought to be”) discretion (“deferring to legislative discretion), and precedent. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected] Legal Times intern Marya Lucas contributed to this report.

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