Eminent domain stirs fear: (South FL) Sun-Sentinel, 7/28/05

Legislators try to ease worry over property

By Shannon O'Boye

Politicians around the state and the nation are trying to calm citizens who were frightened and outraged last month when the Supreme Court ruled governments can bulldoze private property to make way for redevelopment.

In Tallahassee, Rep. Marco Rubio, R-Miami, is leading a committee that will study the state Constitution and make recommendations on how to strengthen private property rights.

Gov. Jeb Bush has said he would support legislation that protects property owners.

The use of eminent domain has caused a stir in South Florida, too.

In Delray Beach, for example, dozens of people have attended city meetings to express their fears about what the city might now do.

City officials contend the recent Supreme Court decision has no bearing on local laws. Besides, the city's track record when it comes to eminent domain, according to City Attorney Susan Ruby, shows Delray Beach has mostly gone after vacant lots or commercial property.

The city's Community Redevelopment Agency recently filed a lawsuit against three Delray Beach property owners to acquire their vacant lots, but they are in a blighted area with contaminated soil, said Bill Doney, the CRA attorney who specializes in eminent domain.

"The difference is in Florida, under the redevelopment act, the government has to prove that an area is slum or blighted and once that proof is made, there is generally pretty broad power for the agency to acquire property and promote redevelopment," Doney said.

The distinction with the Supreme Court case is "the property was not blighted" and Connecticut had created a state rule that said economic development was a public purpose, Doney said.

In Washington, U.S. Sen. Orrin Hatch, R-Utah, jumped into the mix recently by proposing a bill that would force governments to fairly negotiate with property owners, including paying fair compensation.

The bill also would establish a federal ombudsmen's office to inform property owners of their rights and to order disputes into mediation, if needed.

At least five other U.S. senators and representatives have announced plans for legislation to chip away at the Supreme Court's decision, even though, in the past, justices have overturned congressional attempts to supersede their decisions.

West Palm Beach Commission President Ray Liberti called the Supreme Court's decision ridiculous. Although commissioners have yet to discuss how the city might protect homeowners, Liberti said they likely would in the near future.

"I think it's probably something that needs discussion," he said.

The legislative flurry is in reaction to a 5-4 Supreme Court ruling June 23 in Kelo v. City of New London, Conn. The justices said municipalities have broad power to force the sale of people's property to build private development for the sole purpose of generating tax revenue and jobs.

The decision drew a scathing dissent from Justice Sandra Day O'Connor, who said it favored rich corporations.

Historically, eminent domain has been used for such things as building roads or schools.

In their ruling, the majority of the Supreme Court stressed states can enact stricter laws, if they choose, to give property owners more protection.

Florida already does, according to Attorney General Charlie Crist.

State law says only property in "blighted areas" can be taken through eminent domain for redevelopment, Crist said, "and then only if it would primarily serve a public purpose."

"Quite simply, eminent domain is not available in Florida if the benefit to a private party is the paramount purpose of the project," Crist said.

Frank Schnidman, an urban redevelopment expert at Florida Atlantic University, said he wished Crist's opinion was correct, but it's not.

Schnidman argues Florida's definition of "blight" is so broad and vague almost any area can qualify.

"If, in fact, the property at issue in the New London case was in a CRA in Florida, the result would have been exactly the same," Schnidman said. "... The Attorney General has to stop and re-evaluate what's on the ground, not what's in the books."

There are 37 CRAs in Miami-Dade, Broward and Palm Beach counties, according the FAU Center for Urban & Environmental Solutions Web site.

As politicians rush to soothe homeowners, getting buried are the interests of small business owners who stand to lose the most if local governments expand the use of eminent domain, Schnidman said.

Small business owners are taking a backseat because they usually don't give big campaign contributions and sometimes don't live in the cities where they own businesses.

It will be up to the state Legislature to grant protection to all property owners, Schnidman said.

"Flat out, if the Legislature is serious, they have to reverse the trend of loosening up the definition of blight," he said. "... The Legislature has to be really careful. They need to change the definition of blight so you can still take truly slum properties and do something with them, but they've got to be able to stop this foolishness."

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