By Emily Choi
The fog was where I wanted to be. Halfway down the path you can’t see this house. You’d never know it was here… That’s what I wanted—to be alone with myself in another world where truth is untrue and life can hide from itself.” —Eugene O’Neill, Long Day’s Journey into Night
I stood at that same spot, halfway down the path. There wasn’t any fog, but I could easily imagine my favorite author sitting on the Monte Cristo Cottage porch. Long Day’s Journey was particularly “close to home” for O’Neill—it was so deeply personal that he refused to publish it during his lifetime.
I open with Long Day’s Journey because it’s my serendipitous connection to a new old place. I first heard of New London, Connecticut, last October, when Betsy Merritt, deputy general counsel at the National Trust for Historic Preservation, asked me for research support in a case against demolition there. It’s unusual for the National Trust to participate in suits at such an early stage: trial court, which precedes appellate court, tends to resolve questions of fact. The Trust usually weighs in at the appellate level, which deals with question of law—that is, how the relevant facts fit into the relevant legal principles. Since American jurisprudence is based on stare decisis (“to stand by things decided”), courts will defer to decisions by previous courts when faced with similar issues. Connecticut’s uniquely strong legislative protection for “historic structures and landmarks of the state” gives us a special interest in how courts interpret and enforce this law.
The Trust acted as amicus (literally “friend of the court”)—that is, rather than sue (or be sued), we submitted a brief on legal matters of expertise and substantial stake. I was lucky enough to attend one of the last days of the hearing and to meet in person the people Betsy and I had come to know virtually.
A Day in New London, Connecticut
Here are the facts of our case: a developer applied for demolition of two properties in his ownership—namely 116 and 130 Bank Street. The attorney general’s office, with the Connecticut Trust for Historic Preservation, brought action against him for unreasonable destruction of contributing resources to a historic district listed on the National Register for Historic Places.
Laura Natusch, executive director of New London Landmarks, one of our local amici organizations, told me about the properties over lunch. “Together, these buildings tell the story of New London’s recovery and ultimate resurgence as the second-largest whaling port in the world.” And, of course, there’s more than meets the modern eye: the original owner of 116 Bank Street baked bread for the Continental Army during the Revolutionary War; 116 then became a sailor’s boarding house and then a mission. Today it’s a bustling tattoo parlor. 130 Bank Street, on the other hand, was owned by a 21-year-old sea captain. “A boarding house right next to a wealthy sea captain’s home,” Laura remarked. “Then as now, downtown New London was everyone’s neighborhood.”
Demolition remains a sensitive subject in New London. Laura minced no words: “Walking through our downtown, you’ll see beautiful buildings like Union Station and the Hygienic Arts building, both of which narrowly averted demolition after hard-fought battles. You’ll also see whole nondescript blocks, the sad legacy of a massive urban renewal project from the 1960s.”
For me, this tension reverberated throughout the hearing. It’s something of a trope in preservation law: the developer defendant who wants to demolish and rebuild, arguing for “lost profits” and “economic hardship.” On its face, it’s a convincing argument—it may appear unfair that an owner would not be able to exercise complete dominion over wholly owned property. As with all rights, however, dominion cannot be so absolute as to intrude on others, which is how the concept of the “public trust” came to be in environmental protection. The public’s special interest in clean air and water necessarily limits an individual’s exercise of dominion, even on their own property. In Connecticut, legislative protection of natural resources has been amended to include the preservation of historic ones, in no small part in response to hasty development in relatively recent history.
A Legal Counterpoint: Unreasonable Destruction
The Connecticut Environmental Protection Act prevents the “unreasonable destruction” of historic resources when there exists a “feasible and prudent alternative” to demolition. Laws more often than not lack crystal clarity, and this one’s no different. “Unreasonable destruction” sounds authoritative, but applying that standard requires courts to analyze the facts and define what, exactly, amounts to destruction and when that destruction becomes “unreasonable.”
Our case required such judicial analysis to determine (1) whether demolishing 116 and 130 Bank Street, in light of relevant costs and alternatives, would be “reasonable” conduct by the defendant; and (2) whether the alternatives the plaintiff showed, which included a structural engineering plan and an interested buyer’s testimony, were “feasible and prudent.”
Our ending is a happy one: the judge agreed with us on all counts—a resounding victory for preservationists in more ways than meet the eye. As Laura put it, “The ease with which we gathered 1,500 petition signatures to save 116 and 130 Bank Street shows that New Londoners still mourn what we lost and care deeply about the historic buildings and streetscapes that remain.”
Many thanks and congratulations to each of our new friends: assistant attorney general Alan Ponanski; attorneys Philip Walker and Matthew Berger; and organizations such as New London Landmarks, New London Main Street, and New London Maritime Society.
Emily Choi, a legal intern at the National Trust for Historic Preservation, is pursuing a Juris Doctor at Georgetown Law. #Legal