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ond-~uessing the wisdom of the legislation <br />enacted by state legislatures and city councils. <br />One wonders if we will see more due process <br />challen§es now, with the elimination of the <br />"substani'ially advances" test in takings cases. <br /> <br /> Justice O'Connor's tingle opinion is a <br />must-re, ad for planners. Although the decision <br />will tik~'ly have a §reater impact on the work of <br />land-use attorm:ys, planners will find that the <br />decision chan~es the dynamics between <br />applican[~ and zonin§ boards, perhaps taking <br />some ot the steam out of frivolous threats to <br />tile a r%,olatnry takings claim against the city. <br /> <br />KEL 0 <br />[-he Fifth Amendment of the U.S. Constitution <br />prowd~: "!Nlor shall private property be taken <br />for pubtic us~:, without just compensation." <br />Thit~ ./ear, ~he Supreme Court was asked to <br />consJd~r z.~nether economic development is a <br />"pubd~. ~;~" for which the power of eminent <br />domain may be exercised. None of the land- <br />USe/[)[dnllin~ C;5es on the Supreme CouK's <br />dncket this term have captured as much media <br />a[tenbon ,ts Kelo v. G~ of New London [~25 S. <br />CL .a655 (]une 23, zooS)]. Perhaps lustice <br />O'Conm]r's scathin~ dissent has received more <br />air time and ink than the majori~'s opinion <br />written by Justice John Paul Stevens. <br /> <br /> the facts in this case were misplaced in <br />much of the news coverage since the Kelo <br />opinioH was announced June 2~, but they <br />were an important reason whY the Supreme <br />COllrl' decided nbt ~o expand or restrict the <br />power rd: ~m]inent domain. <br /> <br />THE FACTS <br />Sim:~~. Ihe ,:insure uf the Naval Undersea <br />Wmtam L,mter in ~996, New London, <br />Qolhlec~ictl[, h,15 h)st more than ~,Soo jobs. By <br /> <br />z998, the city's unemployment rate Was nearly. <br />double that of the state, which designated <br />New London a "distressed municipality." <br /> <br /> A private, nonprofit development agency <br />was enlisted to assist the city in planning for <br />the revitalization of the Fort 'l'(umbul[ area in <br />New London. In February z998, a pharmaceuti- <br />cai company announced it wouJd build a $3oo <br />million research facility adjacent to Fort <br />Trumbutl. Hoping the facility would be a cata- <br />lyst for further revitalization, the city held <br />neighborhood meetings and prepared an eco- <br />nomic development plan. The state committed <br />more than gzs million to the effort. <br /> <br />The state reviewed and approved the <br />economic development plan, which called for <br /> <br />a waterfront conference hotel, restaurants and <br />shoppihg, and marinas with a pedestrian <br />riverWalk. On one parcel, 9o,ooo square feet <br />of research and development office space was <br />planned to complement the pharmaceutical <br />research facility. Negotiations with the major- <br />ity of property owners were successful, but <br />nine owners refused to sell and condemnation <br />proceedings were initiated. <br /> The property owners argued their proper- <br />ties were not blighted and said 'the taking <br />violated the "public use" requirement of the <br />Fifth Amendment. The city argued that its plan <br />for economic development of the Fort Trum- <br />bull area w~s a proper Public use.'The Con- <br />necticut Supreme Court ruled that ail of the <br /> <br /> <br />