Part 23 (2/2)

Londregan and O'Connell didn't like the pounding they were taking from the press. They resented the Inst.i.tute for Justice for choosing to execute a relentless media campaign rather than limiting its efforts to what went on inside the courtroom.

Judge Corradino paid no attention to what the newspapers said. He didn't care about local politics, personalities, or press coverage. He had one thing on his mind: interpreting the law correctly. He knew one thing: no matter which way he ruled, his decision would probably be appealed.

With that in mind, he determined to write an exhaustive decision, leaving no questions about his reasoning. He dispatched his law clerk to compile approximately ninety previous cases with any relevance to the facts in the Kelo Kelo case. He took these cases and all the briefs and trial-testimony transcripts from his case to the law library at the New Haven courthouse, where he studied them. It all seemed to boil down to two questions: Did the taking of private property for economic development qualify as a public use? And if it did, was it reasonably necessary for the city to take the plaintiffs' land to accomplish its development goals? case. He took these cases and all the briefs and trial-testimony transcripts from his case to the law library at the New Haven courthouse, where he studied them. It all seemed to boil down to two questions: Did the taking of private property for economic development qualify as a public use? And if it did, was it reasonably necessary for the city to take the plaintiffs' land to accomplish its development goals?

For the first question, Corradino had to examine the Connecticut law and apply the statute to the facts in this case.

For the second question, he relied on expert-witness testimony. The testimony of one expert, Dr. John Mullin, particularly intrigued Corradino. A professor specializing in economic development and urban planning at the University of Ma.s.sachusetts at Amherst, as well as a Fulbright Scholar and a fellow of the American Inst.i.tute of Certified Planners, Mullin had been retained by the Inst.i.tute for Justice to a.n.a.lyze New London's munic.i.p.al-development plan. Besides publis.h.i.+ng more than one hundred articles on planning and development, Mullin had some specific expertise in the redevelopment of old industrial communities in waterfront areas of New England.

In his testimony, Mullin masterfully cut through the NLDC's c.u.mbersome munic.i.p.al-development plan, reducing it to the essential facts. The plan divided the ninety acres into seven parcels. Only two of the parcels, 3 and 4-A, had homes remaining within them. The plan called for office s.p.a.ce and parking facilities on Parcel 3. The four properties within Parcel 3 that belonged to the plaintiffs amounted to less than one acre.

The rest of the properties in the lawsuit-Susette's, Von Winkle's, and the Dery homes-were in Parcel 4-A. The development plan had no specific plans for Parcel 4-A.

Combined, the plaintiffs' properties amounted to less than 2 percent of the ninety-acre footprint of the NLDC's development area. Yet the agency had consistently insisted that it had to obtain and clear every inch in order for its plan to work.

During the trial, Bullock had asked Mullin, ”Is it common for land to be entirely cleared for new development?”

”It's very uncommon,” Mullin said. ”Over the last ten years in New England, I can only remember one instance where this took place, which was Bridgeport, where there is a large degree of housing that was abandoned and where there was a large degree of chemical contamination that caused this to happen. But other than that I can't point to a single large clearance project anywhere in New England.” Mullin had based his opinion on over one hundred redevelopment projects he had worked on or studied.

Then Bullock asked him, ”Are existing structures, based on your experience with urban waterfront, commonly kept in those areas where new development is undertaken?”

”Increasingly, yes, they are,” Mullin testified.

When Bullock asked him if it was necessary to take the four homes on Parcel 3 in order to achieve the development's objectives for that parcel, he said no; the homes could be easily included in the plan. Regarding Parcel 4-A where Susette's house sat, Mullin said the NLDC's plan called for that parcel to be used for ”park support.” Mullin had never heard that term before, but a.s.sumed it referred to parking s.p.a.ce for the upgraded state park.

When Londregan and O'Connell had their chance to cross-examine Mullin, they could not turn up anything to contradict or undermine what he had said.

Corradino couldn't ignore Mullin's points. But at the same time, he couldn't ignore a point Londregan had made over and over again. Nearly 50 percent of New London's land base was not on the tax rolls. Only one city in New England-Boston-had more tax-exempt land. But Boston was more than ten times bigger than New London. Without the ability to a.s.semble large tracts of land for economic development, New London was doomed.

His research complete, Corradino retired to his home to pen his decision.

35.

SPLITTING THE BABY.

March 13, 2002 It was late in the afternoon when Tom Londregan got a call from the courthouse informing him that Judge Corradino had issued his decision and planned to release it the following morning. The clerk invited Londregan to come in that afternoon to receive an advance copy.

Scott Sawyer got the same message. He immediately telephoned Bullock in Was.h.i.+ngton. Bullock told Sawyer to call him the minute he got his hands on it.

As soon as the courthouse officially closed, Londregan, Sawyer, and Ed O'Connell filed into Judge Martin's chambers. A big cardboard box containing copies of the 249-page decision rested on the desk. ”Judge Corradino has given his decision,” Judge Martin said, inviting the lawyers to take copies.

”How many do you need, Scott?” Martin asked.

Sawyer asked for three.

”Some of the plaintiffs are going to like it; Kelo will like it. Von Winkle will like it,” Martin said. ”But Beyer and a couple of others aren't going to like it.”

The lawyers knew what that meant-a split decision.

”He split the baby?” Londregan blurted out, dumbfounded.

”He found a way to split the baby,” Martin said.

”I gotta read this,” Londregan said, flipping through the pages.

”Can I go now?” Sawyer asked.

Martin nodded, and Sawyer hustled out the door.

Londregan kept reading. Corradino had accepted a major part of Londregan's argument-the city's munic.i.p.al-development plan const.i.tuted a public use. However, Corradino concluded that the NLDC had failed to specify its intended use for any of the properties in Parcel 4-A, where Susette and Von Winkle and Dery had their homes. Without a specific use put forth, those parcels could not be taken by eminent domain.

The fact that part of Susette's house stood in the way of a public road that the city wanted to build didn't matter; nor did the fact that the road would be used to get people to a public park. ”I lost my best argument,” Londregan complained. ”The Kelo house is in the roadbed. Her house is in the fifty-foot right-of-way. How could I lose that argument?”

Corradino ignored the right-of-way issue, concluding the city could make road changes without taking homes. He focused instead on the fact that the city had failed to specify what it planned to do with all the land beneath Susette's house and all the other houses on her block. This went to the heart of the matter for Corradino: was it reasonably necessary for the city to take these homes? Not if the city could accomplish its objectives while leaving the homes intact. In the case of Parcel 4-A, the city had failed to say why it was so vital to have those lots.

But the plaintiffs didn't win every argument. Corradino ruled that the city could, in fact, use eminent domain to take the properties of Rich Beyer, Byron Athenian, and the Cristofaro family on Parcel 3. NLDC's plan for that parcel was quite specific and under Connecticut law was justified, the judge determined.

”Ed,” Londregan said to O'Connell, ”we followed the law. And they haven't said we haven't followed the law. But Judge Corradino found a way to split the baby.”

With his decision, Judge Corradino also ordered a halt on all demolitions pending any appeals. The project, for all intents and purposes, was now at a standstill.

When he was a block from the courthouse, Scott Sawyer pulled his car to the side of the road and called Bullock to tell him he had the decision.

”Read it to me,” Bullock said.

Sawyer cut to the conclusion, reading off the winners and losers. Before Sawyer finished, Bullock had done the numbers: eleven of the fifteen eminent-domain actions had been declared unconst.i.tutional and unlawful, meaning the deeds would revert to the homeowners, who were now ent.i.tled to remain on their properties. Even the property owners who had lost, Rich Beyer (who owned two of the disputed properties), Byron Athenian, and the Cristofaro family, were ent.i.tled to hold on to their properties free from any fear of eviction or demolition until all appeals were exhausted. Any way you looked at it, Bullock figured, the plaintiffs had won.

Bullock called Susette. ”The decision came down,” he told her. ”And it came out favorably for you and Bill and the Derys.”

”You mean we won?” Susette shouted. Unaccustomed to winning, she couldn't believe it was true. ”This means I get to keep my house?”

Bullock chuckled and tried to calm her down. Yes, you can stay in your house, he told her. Then he gave her the bad news. ”The decision was not favorable for Rich and Byron and the Cristofaros.”

Susette didn't get it.

”The East StreetWalbach block won,” he explained. ”Byron's block lost. In other words, you won, and Byron, Cristofaro, and Rich Beyer lost.”

After Susette hung up, she shared the news with Tim LeBlanc, who had just gotten home from work. By now they had been living together in Susette's house for almost three years, wondering the entire time whether they'd get to stay there. Although not married, they might as well have been. They shared expenses; they shared property; and they shared a bed. Time had convinced Susette that LeBlanc was the kind of man she wanted. And now that her home was safe, she felt richer than she'd ever been.

Suddenly, the phone rang. Word had gotten out. All the plaintiffs were calling one another. Everyone was meeting up at Matt Dery's place to celebrate. Susette and LeBlanc threw on wool sweaters and blue jeans and ran up the street.

One by one, the plaintiffs and other neighbors streamed in. The mood was like Christmas in March. With the night-lights from the nearby Pfizer building visible through the windows, Dery broke out beer and wine for his friends.

”Is it really over?” Susette asked enthusiastically. ”I can't believe it. It's over!”

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