Shoreline Properties; Mean High Water Line.  The United States Supreme Court has agreed to hear arguments on a property rights case (Stop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al) that may have an adverse effect on privately owned shoreline property in Connecticut.  The Florida legislature enacted the Beach and Shore Preservation Act in 2003.  Using the law the city of Destin and Walton County applied and received from Florida DEP a permit to use “sovereign submerged lands” to create a “fixed erosion control line.”  The net effect of the law was to eliminate private ownership rights known as “littoral rights” to natural accretions that may occur over time beyond the existing location of the mean high water line.

The statute requires the recordation of a survey showing the erosion control line and states that upon recording “title to all lands seaward of the erosion control line shall be deemed to be vested in the state by right of its sovereignty and title to all lands landward of such line shall be vested in the riparian upland owners whose lands abut the erosion control line or would have abutted the line if it had been located directly on the line of mean high water on the date the survey was recorded.”  No payment of compensation was provided for in the legislation.

Private owners of shoreline properties who brought the suit claim that they have been divested of their rights to exclusive access and accretion and other littoral rights.  They also claim that the state is using a beach restoration project to unconstitutionally take protected littoral property rights without using its power of eminent domain which would have entitled these owners to just compensation.  Lastly, they claim that the Florida Supreme Court’s majority decision to uphold the statute was itself a violation of the U.S. Constitution.

If the Florida decision is upheld and similar legislation were enacted in Connecticut, one can imagine the number of suits appealing real property tax assessments claiming a reduction in assessed value on the basis that what was formerly assessed as waterfront no longer deserves that designation.  Under existing Connecticut law those owners whose property is bounded by Long Island Sound might also claim that their rights to exclusive access to the beach in front of their homes has been eliminated and that the state now owns the property separating their property from the water’s edge.

Urban Blight.  Much has been written about how legislatures define blight so generally that municipalities and other public agencies are able to use blight as a means to include areas and properties in plans that call for acquisition and demolition of private homes and commercial properties that are not blighted.  From state to state the laws differ.  The National Association of Realtors engaged the services of a well respected Connecticut law firm, Robinson & Cole to prepare an analysis of state blight statutes and their implications for eminent domain reform.  Click to read the report in its entirety and an addendum analyzing state economic development statutes.

The report provides a short history of blight statutes and a comprehensive survey assigning statutes to separate categories based on the manner in which property is selected for review as blighted property, the conditions which cause blight, conditions which are the effect of blight and numerical criteria to declare an area blighted.

The origin of blight statutes are slum clearance laws of the early 1900s.  These gave rise to urban renewal and the use of the term “blight.”  Blight was considered a disease or at the very least a symptom of a very serious disease that could spread across a city unless treated.  Thus, according to the report, a slum was the end result of an area becoming infested with crime and other social ills including decrepit, unsanitary, unsafe housing and other structures.  A blighted area was run down but did not yet meet the definition of a slum.  Slowly but surely both federal and state legislation incorporated the power of eminent domain to provide municipalities and other public agencies the ability to manage the rebuilding of neighborhoods especially for housing.

These statutes raised legal questions such as: could eminent domain be used to condemn areas not yet considered slum or properties not considered blighted and does the transfer of condemned property to private owners meet the constitutional requirement of a public use under the Fifth Amendment.  We know the U.S. Supreme Court answered yes to all of these questions but left unanswered the question, just how far could a legislature go in defining what constituted a public use.  The Kelo decision in 2005 confirmed that a state legislature could permit the use of eminent domain where the purpose of the taking is economic development, notwithstanding that condemned parcels were not determined to be blighted or slum and would be transferred to a private party for that party’s use and benefit.  The court deferred to the legislature’s statement of intent as to what constituted a public use and held that New London’s plan contained sufficient public benefits.

United States Supreme Court Justice Kennedy emphasized in his concurring opinion that a taking for the benefit of a particular private party with only incidental or pretextual public benefits is still forbidden under the United States Constitution.  So there is a line over which no government agency should step but to date the court has not clearly defined what or where that line is.  That lack of clarity is one of the most important reasons why over 40 states have revised their eminent domain and blight statutes and/or amended their constitutions to limit the use of eminent domain or more clearly define the term “blight.”

The Fort Trumbull, New London plan was not approved as a redevelopment plan under CGS Chapter 130.  It was a plan approved under CGS Chapter 132, Municipal Development Projects.  The major difference being blight was not the basis for the determination to adopt the development project.  The addendum to the report shows that Connecticut was as late as 2007 the only state permitting the use of eminent domain “for economic development purposes without any resort to blight statutes.”

Municipal Powers.  CGS Sec. 7-148 et seq. enables municipalities to create ordinances and regulations to deal with blight.  These are important provisions because proper enforcement of blight ordinances can go a long way to reducing the size and number of areas or properties that might otherwise become the subject of eminent domain.  A municipality can create reasonable rules for maintenance, cleanliness and safety of properties.  In cities with a high number of residential rental properties, our Supreme Court has upheld the right of a municipality to require reasonable inspections of interiors of properties and licenses to operate multi family housing of three or more units. 

Smaller towns that are not as apt to enact blight ordinances or regulations should remember that state building, health and fire codes give local officials the ability to deal with problem properties.  Local planning and zoning regulations allow for enforcement against unauthorized uses and all cities and towns have the right to stop what they determine to be a public nuisance.  To date approximately 60 cities and towns have adopted blight ordinances and regulations.

Conclusion.  The general statutes, codes, regulations and ordinances provide many ways for municipalities to maintain public order and maintenance of properties and neighborhoods without the use of eminent domain.  Statutory alternatives to eminent domain should be tried before engaging in projects that require removal of people from their homes and businesses from their familiar locations.  In too many instances the failure to enact or enforce one or more of these statutory alternatives has resulted in municipalities risking and/or losing millions of dollars of public funds.