State Takes Family's Land To Build Highway, But Won't Return It After Road Project Dies

By the force of its eminent domain authority, the state Department of Transportation took 11.3 acres from an Andover couple 27 years ago for construction of the then-planned Route 6 expressway from Bolton to Windham.

Now that expressway project is dead — but the DOT still won't let Carolyn Sheehan, now 89, widowed, and in a wheelchair, repurchase the Andover property to reassemble a 50-acre wooded tract that had been in her family for about a century.

"I'd like to buy it back. We've always wanted to," Sheehan said of the half-mile strip of land — which, as now held by the state, blocks her remaining property from direct frontage on Wheeling Road.

"They took it without asking," Sheehan said. At the conclusion of 1987 condemnation proceedings, the Sheehans received a Superior Court award of $19,100 for their property — about $1,690 an acre.

"They said either take it or leave it," she said. "We had to take it."

Sheehan spoke by phone Thursday from her home on Wheeling Road, near the land taken by the DOT. Her son, Michael Sheehan of Glastonbury, said Carolyn Sheehan is in a wheelchair with round-the-clock health aides. He said the family would like to put the property back together, giving them access to the road, for reasons including the possible sale of some of it if the money is needed to care for his mother.

But even though the DOT admits that the expressway is dead — after decades of fighting over environmental issues — it still is sitting on the property it took from the Sheehans. The agency is also holding 415 additional acres that it acquired in the 1980s and 1990s in Bolton, Coventry and Andover — all for what would have been a high-speed connector between Bolton and an existing piece of superhighway running east from Coventry to Windham.

Other people besides Sheehan have expressed interest in buying back land that the DOT condemned over the years, but the DOT has shown little interest in the desires of the citizens it took land from. Instead, it is taking its time in figuring out what to do with the acreage under a comprehensive approach that supposedly would consider such factors as local governments' possible use of the land and "green" open space.

The trouble for the Sheehans and others is that years after it became evident that the expressway would never be built, the DOT has barely begun its deliberations about what to do with the land.

"The CT DOT is reviewing any and all options as to whether the corridor properties should be kept for transportation purposes," a department spokesman, Kevin Nursick, said Thursday.

By "transportation purposes," Nursick didn't mean a highway. The possibilities are more in the realm of a "greenway" with bicycle paths, he said — but, when asked for any planning documents that have been generated toward that end, he said there are none.

The state's environmental protection agency "will participate" in the DOT's planning, and a spokesman said Friday that "our initial look at the properties involved shows there could be some that are suited for use by the public for outdoor recreational opportunities."

But critics say that this is the latest example of the government misusing its power of eminent domain to deprive Connecticut citizens of their property.

"It's totally unfair that they don't have access to that property," said Edith Prague, the state's commissioner of aging, who tried unsuccessfully to help the Sheehans in 2012 while she was still serving in the state Senate. "It was their property to begin with, and they should let them get it back."

It's wrong for the government to wield its power to condemn land, justifying its seizure of property with a specific public purpose, and then to use that seized land for something else, Prague said.

As a senator representing the Sheehans' district, Prague had the family property listed in a 2012 "conveyance" bill under which the state disposes of excess properties. The bill would have let them buy back the acreage at the fair market value, which was $57,000 at the time. But other legislators, who believed that this was an asset that local officials should carefully consider using for public purposes, blocked the proposal.

Such excess-property "conveyance" bills are passed annually — and Prague said the 11.3 acres should be inserted in this year's bill so the Sheehan family can buy back the land at current-day market value.

Abusing Power?

Questions about the DOT's handling of the expressway land are hardly the only ones to arise about eminent domain in Connecticut.

The state made national headlines a decade ago in the New London v. Kelo case — in which the U.S. Supreme Court in 2005 narrowly upheld the use of eminent domain to transfer land from one private owner to another to further economic development. The New London case was widely considered an abuse of government authority — a power to deprive citizens of property and disrupt their lives for generations, a power that critics say is so strong that it needs to be used only sparingly.

Nursick defended the DOT's actions in this episode — saying that so much time has gone by since the properties were acquired that the state should carefully consider the potential effects of selling the land back to the public for possible development. For example, if "all these properties were on the market now," Nursick said, what if a purchaser said, "We want to put in a Walmart, or a Lowe's?"

"How do we go about releasing these properties so you don't upset a balance that has been established by these towns that have developed around this open space for about 30 years?" Nursick said. If only five or 10 years had passed, then the original property owners might still have immediate plans for their property that that could resume, he said. But in 30 years, "people have utterly changed their plans in life based on these property acquisitions." For many, he said, "getting the properties back to them is a moot issue."

It isn't a moot issue to Michael Sheehan and his wife, Joan Sheehan.

"This is something the family has waited to correct for over 30 years," said Joan Sheehan. "The small amount of land that the state took — 11.3 acres — should be able to be purchased [back] or at the very least, traded for 11.3 acres in the back of her land, that abuts the Nathan Hale State Forest." She said that the swap of the roadside land for the rear land, abutting the state forest, is a reasonable way to address any desire by the state for open space preservation and give the family the right to use the rest of the acreage in any way permitted by local regulations. It's residentially zoned.

Getting one's condemned property back is not easy under Connecticut's General Statutes.

Those statutes require that vacant highway right-of-way properties first be offered for sale not to their former owners, but to town governments. If the town doesn't want them, they're put up for auction to abutting landowners, Nursick said. Even if the owner that the DOT took the land from is an abutting property owner, he or she still must bid in the auction against other abutting owners.

The state laws only give first priority to a former owner if the condemned property has a dwelling on it — which isn't the case with the land taken by the DOT. A few such properties on the expressway corridor, with houses on them, have been sold in this manner, Nursick said.

If the 11.3 acres sought by the Sheehans were mentioned in an excess-property conveyance bill, it would override the land-disposition sections in the general statutes, lawmakers say.

The width of the land taken from the Sheehans varies greatly as it runs along Wheeling Road for the half-mile. If it were combined with the rest of the family property, it might be suitable for residential subdivision, Michael Sheehan said. Homes are being built a short distance up the road.

He said that his father Edward Sheehan, who died several years ago, "never spent a penny of that $19,100. He put it in the bank and left it there. Right before he died, he said, 'Do what you can to get that property back."

He said he's not sure what the family would do with the property, but said it's no use to anybody else unless combined with the rest of the acreage.

A property owner shouldn't have to give the reasons why he or she wants a seized property back — because if the government no longer has any use for it, returning it to the owner is simply "the right thing to do," said Dana Berliner, litigation director for the Virginia-based Institute for Justice, which represented Suzanne Kelo, whose home and property were seized in the New London case.

Berliner was one of the attorneys who argued the New London case. While she was unfamiliar with the details of the Sheehans' situation, when told about it she said that, in general, that while statutes give government agencies "legal recourse" in these matters, "agencies often have the option to do what is right."

"The agency could say, 'We bought this property, but no longer have use for it, so we should return it.' That would be the sensible thing to do. It would be the right thing to do. But in my experience, government agencies rarely do that," she said. "Recently, it seems they feel like they will use their power to the fullest extent allowed by law even, if there's no actual benefit to doing that — and even if it would be a better thing to return the property to somebody."

"That is a sad reality of the way eminent domain works" — not just here, but all around the country, said Berliner, whose agency has more than 25 lawyers who advise and represent citizens in such cases. "It [is] one if the many reasons why the power of eminent domain should be limited strictly, because it is a power that it is very easy to abuse."

Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.

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