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Public use, property rights and the courts

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The precise issue the Supreme Court justices must decide is whether a privately owned development project amounts to a "public use."

The most common and accepted public use of private property occurs when the government takes land for government facilities like a public highway, public school, or military base. Public use also includes the taking of property for privately owned businesses such as railroads, power companies, and other firms that need contiguous land to offer regulated services to the public. Public-use takings have also occurred to eliminate urban blight.

But the New London case implicates the most controversial application of the public-use rationale.

Lawyers for the city of New London say it is up to elected representatives to decide land use and economic development issues. Judges must show deference to the sometimes tough economic decisions made by legislative and municipal officials, they say.

State supreme courts are divided on the issue. Eight state supreme courts have ruled that private economic development does not amount to a public use and have barred condemnations in such cases. They are Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, South Carolina, and Washington.

Six state high courts have ruled that private economic development projects are a public use. Those states are Kansas, Maryland, Minnesota, New York, North Dakota, and Connecticut.

In March 2004, the Connecticut Supreme Court ruled that the New London project was a public use because it promises to bring higher tax revenues and jobs to the economically depressed city. The state high court offered an expansive reading of the term: Public use can mean "public usefulness, utility, or advantage, or what is productive of general benefit."

Daniel Krisch of Hartford is a member of New London's legal team. He says in the debate over the project, the benefits of economic development have often been overshadowed by the plight of targeted homeowners.

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