Op-Ed: Connecticut’s misuse of eminent domain must end [CT Mirror]

March 12, 2015

Op-Ed as it appeared in the Connecticut Mirror

By State Senator Joe Markley

Even before our nation’s founding, Americans held dear the right to be secure in our possessions. John Locke, philosophical father of the framers, listed life, liberty, and property as fundamental rights; Thomas Jefferson famously wrote that formulation into our Declaration of Independence, with a slightly less materialistic twist.

Eminent domain is a tool the state may use to seize private property for public use—usually land for a highway or public project—and then compensate the owner. Since it encroaches on personal liberty, eminent domain is a dangerous governmental power which must be strictly bound.

Op-ed submit bugPerhaps the most notorious misuse of eminent domain in living memory occurred here in Connecticut, just a decade ago. In Kelo v New London, the U.S. Supreme Court decided that property could be taken from one private party and granted to another, if it was seen to serve the public interest. In fact, no one’s interest was served by the seizure, which transformed a proud neighborhood into a vacant lot used to dump snow and storm debris.

Now our state government has launched another attack on our property rights. The Connecticut Department of Transportation (DOT) recently sequestered through eminent domain licenses long-ago purchased by four private bus companies to operate on a particular route (which, seemingly by chance, parallels the New Britain to Hartford busway). In so doing, the DOT for the first time expanded the power of eminent domain to include intangible property.

Connecticut’s statue allows the state to use eminent domain to seize “land, buildings, equipment, and facilities.” The bus companies rightly challenged the DOT in court, but the judge referee ruled that the licenses were “facilities,” since they facilitated business, and therefore subject to eminent domain.

Common sense dictates that in this instance, the word “facilities” refers to tangible, physical property. (A manufacturing plant in that context would constitute a facility.) If the license to operate a bus route is a facility, what else might the term cover? Every contract, and any intellectual property—including a patent—would be subject to seizure for facilitating business.

Could anything be more alarming to firms considering a move to Connecticut?

In response to the DOT’s overreach and the referee’s unfortunate ruling, I submitted a bill to limit the state’s eminent domain law explicitly to tangible property. Though my bill died in committee, a similar proposal was raised by the Planning and Development committee: SB 881, An Act Concerning the Taking of Intangible Property by the Commissioner of Transportation. Although this bill does not go as far as my proposal, I found committee members understood my concerns and seemed willing to address the threat.

I encourage those who share my regard for our property rights to contact their legislators and ask that they support this important legislation. I also invite you to visit my website, senatormarkley.com, where you can find updates on our progress this session.