Senator Markley Looks to Prevent the State’s Abuse of Eminent Domain [Hartford Courant]

February 4, 2015

Article as it appeared in the Hartford Courant

By Jon Lender

A state senator wants to ban the Connecticut Department of Transportation’s new practice of using its power of eminent domain to seize “intangible property,” such as bus companies’ licenses to carry passengers on specified routes..

Sen. Joe Markley, R-Southington, says he’s “alarmed” that the DOT has expanded the definition of what it can seize through under the state’s eminent domain law beyond the traditional power of condemning of land and buildings to make way for road construction.

He’s introduced a bill “to limit the state’s power of eminent domain to the taking of tangible real property” – and to “specify that such power does not extend to the taking of licenses or permits.”

“This radical expansion of eminent domain threatens every business person and property-holder in Connecticut,” Markley said.

In a phone interview Tuesday, Markley said he was “thunderstruck” when he read a Jan. 4 Government Watch column in The Courant that said the DOT has expanded its use of eminent domain beyond its usual taking of property you can see or touch, such as land and buildings.

The DOT has seized four private bus companies’ long-standing rights to carry passengers over certain routes. The companies hold those rights under licenses – called “certificates of public convenience and necessity” – which were issued by the state decades ago.

One of the routes in question follows the same path between New Britain and Hartford to be served by state’s controversial new “busway” — formally named CTfastrak — slated to begin service in March.

Markley, a leading critic of the $570-million busway, said he believes the project is a reason that the DOT has expanded its use of eminent domain. “The DOT is sequestering the contracts of four private bus companies that own the right to operate bus routes that would compete with the New Britain to Hartford Busway,” he said.

DOT officials say that their condemnation efforts are unrelated to the busway.

State law says that the government can use eminent domain to seize, “land, buildings, equipment and facilities” – and a Superior Court judge found in December that the definition of “facilities” is flexible enough to include “intangible property” such as a private company’s certificate to run buses on a certain route.

On the basis of that definition, the court upheld the DOT’s condemnation of the certificates held by Collins Bus Service Inc., Dattco Inc., Nason Partners Inc. and the New Britain Transportation Co. for routes mostly between Hartford and towns to the east and west.

The four companies are appealing that decision. Markley’s bill would narrow the definition of “facilities” by specifying that it does not include “licenses or permits” such as the bus companies certificates.

The bus companies’ lawyer, Jeffrey J. Mirman, has said that a bus company’s certificate can only be removed under state law “for cause” — and there’s no cause for revocation. The companies continue to argue that, contrary to the judge’s recent ruling, the eminent domain statutes only empower the government to condemn “tangible property” such as land and buildings.

Markley agreed. “The DOT’s action and the ruling set a terrible precedent,” Markley said. “If the license to operate a bus route can be considered a facility, what else qualifies? Any contract might likewise be termed a facility, or any intellectual property, including a patent. No one can say where such an expansion of government might end.

“This ruling has already violated the rights of four private bus companies, but more importantly, it threatens every citizen’s right to be secure in his or her possessions. Every now and then, government does something that really scares me, by opening the door to extensive, long-term unintended consequences. This redefinition of eminent domain is a frightfully bad idea.”

DOT Commissioner James P. Redeker has said that the condemnation of the bus companies’ certificates isn’t related to the busway or its viability. Instead, he said, it’s a continuation of a DOT effort dating back five years to put the companies’ commuter routes out to competitive bidding. He said such bidding wasn’t done decades ago when the companies obtained their certificates under a noncompetitive state regulatory system that he called “ancient.”

Redeker said that the state owns the buses that the companies operate, and it heavily subsidizes the commuter routes. He said the DOT has a good working relationship with the companies under existing contracts, and all he’s trying to do is accomplish what was begun by the DOT during the Rell administration: bring competition to the routes to obtain “the best service at the best cost.”

A DOT spokesman said Tuesday that the agency had nothing to add to Redeker’s previous comments on the issue.

The controversy adds to Connecticut’s eventful history of eminent domain – a history that includes the New London v. Kelo case in which the U.S. Supreme Court in 2005 upheld the use of eminent domain to transfer land from one private owner to another for the sake of economic development. The Kelo decision gained national notoriety and was branded by critics as an abuse of government authority.

Asked what he thinks his bill’s prospects are in the Democrat-controlled General Assembly, Markley said, “the more people that see the story and understand the implications of this decision,” the more they may favor the bill.

“Civil liberties are one of those issues that cut unpredictably. My hope would be that clear- thinking people across the political spectrum might look at this and say that is not the intent of eminent domain,” he said. “It’s almost certain to have consequences we don’t like. Why not address it now before it leads to some terrible mistakes being made?”