Little Pink House Part 23

"That you only own one building, known as 31 Smith Street. Is that correct?"

"I'm not sure who owns anything."

O'Connell didn't know what to do next. "You're not sure whether you own these buildings at all?"

"Well, I believe I own them. I'm not sure."

"Do you collect the rents?"

"Yes, I do."

"Do you turn the rents over to anyone else?"

"No."

"Yet you're not sure that you own the buildings. Is that correct?"

"I'm not sure how you set things up for me, sir, in your office."

Bullock had to laugh. As much as he didn't want Von Winkle to square off with O'Connell, he took some pleasure in seeing his client turn the tables on his adversary.

"I don't think I have any more questions," O'Connell said.

Londregan knew Von Winkle's reputation well. He had no intention of challenging him. That would be like picking a fight with a porcupine: even if you won you got p.r.i.c.ked. Rather, Londregan planned a more nonconfrontational approach. He simply wanted to make the point that one of Von Winkle's buildings was so close to the street that it didn't conform to current zoning regulations. And any attempts to widen the road to accommodate increased traffic would conflict with the location of his building, therefore justifying its removal.

"Mr. Von Winkle, how are you?"

"Not bad," he said.

"Do you agree with the opening statement of your attorney that you're not opposed to the implementation of the munic.i.p.al-development plan so long as it doesn't take your property?"

"Right, so long as it doesn't take my property."

Londregan directed him to a photograph of his brick building. "Looking at the bottom left-hand corner, am I correct that the foundation of this building comes to the edge of the sidewalk there?"

"Yes, it does," Von Winkle said.

"Do you happen to know about how wide that sidewalk is?"

"Since I paid for it, I should," Von Winkle said, to laughter from the spectators. "Six and a half feet."

"Is it fair to say that the foundation of that building comes right to the edge of the sidewalk?"

"Yes. Six and a half feet to the street."

Londregan had gotten what he wanted.

"Your Honor, I have nothing further."

By the end of the first day, each of the property owners had testified. Bullock and Berliner couldn't have scripted a better start. All of the plaintiffs had said they would not oppose the city's development plan as long as they could keep their homes. And all of them offered compelling testimony about the NLDC's bullying tactics and hostile treatment.

Over the next couple of days, NLDC officials testified that the agency had in fact made changes and modifications to the development plan, including exceptions that allowed some existing buildings to remain, such as the Italian Dramatic Club. The point was clear: although the NLDC wanted a ninety-acre footprint for redevelopment, it wasn't essential for the agency to acquire every parcel of real estate within that footprint to achieve its goals.

Antic.i.p.ating that Claire would be their most difficult witness, Bullock and Berliner scheduled her toward the end of the NLDC's slate. Accompanied by her college-age son, she entered the courtroom and made her way to the witness stand.

Accustomed to a certain degree of deference, Claire got none from Corradino. He seemed to know little if anything about her or her reputation. Earlier in the trial, he had repeatedly referred to her as "this lady," prompting Londregan to eventually point out that Claire was the president of the NLDC, among other things. To Corradino, she was just another witness.

To Berliner and Bullock, she was the worst kind of bully, disguising her heavy-handed tactics as goodwill for the poor. After her experience taking Claire's deposition, Berliner had compiled an array of questions designed to hem Claire in with yes or no answers.

From the start of her testimony, Claire looked and sounded less certain and less ornery than she had in her deposition. Yet she still managed to turn her answers into commentaries about the loftiness of the NLDC's objectives and the complexity of its work. After one particularly long and evasive answer, Berliner zeroed in.

"Was the answer to my question yes?"

Remaining evasive, Claire continued to lecture.

Corradino had heard enough. "Okay," he said, interrupting Claire, "why don't we do this? Realizing that life is short, when you're asked a question, if you can answer a yes or no, answer yes or no."

Berliner repeated her question to Claire. "So the final answer to my question was yes?"

"I did already say that, yes," Claire said. "I just said it at the end instead of the beginning. That's the way French logic goes. I'm sorry. I will try to use Anglo-American logic."

Berliner asked her about a specific date in the process for producing a development plan.

"What's the relevance of the date?" Claire responded.

Corradino looked at Claire. "You can't object on relevance," he informed her. "They're the ones that object. You try to answer the question."

From the gallery, Kathleen Mitch.e.l.l couldn't believe what she was thinking and feeling-sympathy for Claire. For three years Claire had been the face of the enemy in Fort Trumbull. Mitch.e.l.l had spent that entire time trying to b.l.o.o.d.y that face with a relentless a.s.sault through words, slogans, and protests. Through it all she had seen Claire one way: as a cold, calculating power broker. But suddenly, Claire was in an inferior position. Instead of being in charge, she had been forced into a defensive posture, like a pampered house pet being dropped suddenly into a jungle. A lawyer was badgering her, and a judge was telling her what she could and couldn't say. Mitch.e.l.l almost didn't recognize Claire.

The trial, in many respects, was Claire's swan song. Already gone from Connecticut College, Claire's days as president of the NLDC were now numbered, too. She didn't plan to seek reappointment, and the agency would soon name a new president. A lot had changed since Claire had stood shoulder to shoulder with Governor Rowland and George Milne while leading city officials down the Thames River on a cruise s.h.i.+p to kick off the revitalization of New London.

After Berliner finished with Claire, it fell to Londregan to restore her credibility. It was a strange role reversal. He had never cared for Claire's style, and she'd never cared for his. They had fought bitterly from the early stages of the project. But the lawsuit had given them a common adversary, and now they needed each other.

Berliner and Bullock had characterized Claire and the NLDC as an iron-handed group that ran roughshod over powerless homeowners. Londregan asked leading questions that stressed the agency's strict adherence to a lengthy and complicated governmental process. With little emotion, Claire gave simple yes or no answers. Her only intention in all of this, she testified, was to help turn New London around.

Mitch.e.l.l glanced across the aisle at Claire's son, intensely watching his mother defend herself. Mitch.e.l.l had never thought of Claire as a mother. Bruising political fights tended to obscure the fact that the people on the other side were human beings.

When Claire stepped down from the stand, the judge declared a brief recess. Mitch.e.l.l made her way over to Claire's son and introduced herself. "I feel really bad," Mitch.e.l.l told him. "Through this whole thing I've made some real unkind references to your mother. I think it's real kind of you to be here."

"I love her," the boy said. "It's been tough for her. I wanted to be here for her."

Mitch.e.l.l turned and walked away. She didn't see anyone else in the courtroom for Claire.

The national media wasted no time making up its mind about who had the better argument inside the courtroom. In an editorial, the Wall Street Journal Wall Street Journal jumped on the city and Claire for running people out of their homes to make way for a hotel and upscale housing. "Claire Gaudiani justifies the project by saying, 'Anything that's working in our great nation is working because somebody left skin on the sidewalk,'" the jumped on the city and Claire for running people out of their homes to make way for a hotel and upscale housing. "Claire Gaudiani justifies the project by saying, 'Anything that's working in our great nation is working because somebody left skin on the sidewalk,'" the Journal Journal said. "That kind of thinking quickly leads to government officials acting like bullies rather than servants." said. "That kind of thinking quickly leads to government officials acting like bullies rather than servants."

The Boston Globe Boston Globe called the NLDC "ruthless" and blasted the city for allowing the agency to abuse the public use clause of the Fifth Amendment. "Is that how the power of eminent domain is supposed to be used?" wrote the called the NLDC "ruthless" and blasted the city for allowing the agency to abuse the public use clause of the Fifth Amendment. "Is that how the power of eminent domain is supposed to be used?" wrote the Globe Globe's Jeff Jacoby, "to expel families from their homes for the sake of expanding the tax base?"

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!"