JOSEPH MOLLO JR. was forced out of his Smithfield farm, which had been in the family since 1911, after the R.I. Economic Development Corporation exercised its right of eminent domain.
What started as a dispute between Dow Chemical and Fidelity Investments led to a split between Joseph Mollo Jr. and his wife of 37 years.
The Mollos’ Smithfield farm was taken by the R.I. Economic Development Corporation in 2002 through eminent domain. The taking was intended to settle a conflict between both companies over differing expansion plans, and enable the creation of as many as 2,000 new jobs.
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Dow has since left, but forty acres, including the 10 acres where the Mollos had their home and their business, the Breezy Hill Farm & Garden Center, were taken anyway.
Last December, after a long battle over compensation, the EDC agreed to pay the Mollos $1.65 million for their land, and they agreed to leave by Feb. 1. But the 61-year-old war veteran lost not only a property that had been in his family since 1911, but also his wife, Carol, who separated from him and is currently living in Arizona because of the stress of the ordeal.
“Is this the way you treat people? I feel like an American Indian,” Mollo said at a hearing March 10 before the R.I. House Finance Committee.
Mollo’s situation and reaction were strikingly similar to those of the Connecticut citizens affected by eminent-domain takings in Kelo v. New London, a landmark case in which the U.S. Supreme Court affirmed last summer that governments have the power to take property from private landowners and turn it over to private developers.
In Smithfield, the plan was to keep the two companies in the state. In New London, the municipal government had wanted to make way for new commercial development.
Generally used for public projects such as highways or reservoirs, the power of eminent domain can be applied to economic development projects unless the municipality or state has laws specifically prohibiting it – a stipulation the majority in the Kelo decision recommended governments add if they wished to limit such takings.
“Legislatures here and elsewhere are struggling with ways to limit the very broad ability of the state to take private property in a way that will, on one hand, not interfere with the legitimate needs of governments to enter into public projects of various kinds, and at the same time provide some protection to private property owners,” said Robert K. Taylor, a partner at Partridge Snow & Hahn in Providence, who has represented interested parties in eminent domain proceedings.
In Rhode Island, there are at least six pieces of legislation on the issue being considered this year. Some, such as the bill submitted by Sen. James Sheenan, D-Narragansett, seek to eliminate the taking of private residential property for transfer to another entity.
Others, such as the bill submitted by Sen. Kevin A. Breene, R-West Greenwich, at the request of Gov. Donald L. Carcieri, would just set clearer guidelines for any takings geared toward economic development.
The governor’s bill echoes a policy drafted by the EDC, Executive Director Michael McMahon said. At Carcieri’s request, the agency reviewed the matter and drafted a policy that restricts the taking of private property from one party to give it to another, McMahon said. In addition, the policy also prohibits the corporation from taking individuals’ “primary property,” such as their home, he said.
The policies also entitle the landowner to a sufficient hearing and require fair valuation of the property and fair compensation for it.
“Eminent domain is very powerful, and when you use it, you have to use it for limited purposes,” McMahon said.
The corporation would still use the power if necessary, he said, while following its guidelines if it needed to facilitate infrastructure improvements for a project such as a trolley line.
“We’ve got a significant amount of development activity going on in the state,” McMahon said. “If we needed to put in some transportation infrastructure … that may be an appropriate use. But it would have to be as a part of a much larger development plan, and we would not turn [it] over to a private individual or private firm.”
While McMahon does not feel that a law that reaches beyond the scope of the EDC’s policies is necessary, Rep. Charlene Lima, D-Cranston, said her bill is needed to protect the rights of property owners.
Under Lima’s bill, the ability of the state government to confiscate private property in order to transfer it to another private party would be restricted. Private ownership in such land would be set at a maximum of 20 percent, under the bill.
Lima, who serves as speaker tempore, has said in interviews that her bill has the support of House leadership.
While not commenting specifically on any law before the Rhode Island Legislature, Taylor said any legislation aimed at protecting property owners has to consider what will benefit the public.
“It’s often very hard to decide upfront whether or not a project is going to be a public benefit,” he said. “When you weigh that against the rights of a private property owner, very often I think the interests of the private property owner are going to be shortchanged because of the perspective of the benefits of economic development.”
