Condemnation of eminent domain imperils valuable county tool: Charlotte (FL) Sun-Herald, 10/13/05

By John Haughey

Blunting proposed laws that could diminish eminent-domain powers is among Charlotte County's top priorities during the upcoming state legislative session.

Commissioners were briefed Tuesday by lobbyists Cari Roth and Dave Bitner about a range of topics that will be debated in Tallahassee in 2006 which could affect the county.

Growth management, taxation, finances and tourism top the list, with possible changes in eminent-domain laws and Save Our Home exemptions the burning issues.

The county's goal: not getting burnt in the backlash against the U.S. Supreme Court's June decision that upheld the use of eminent domain for economic development.

In the high court's 5-4 ruling in Kelo v. City of New London, Conn., justices said governments can seize private property and give it to a developer to use it to generate more tax revenue.

The U.S. Fifth Amendment's eminent-domain clause allows governments to take private property for public use.

Traditionally, it has been used to build roadways, schools and other public amenities.

Since the Kelo decision, Alabama, Delaware and Texas have enacted legislation to restrict eminent domain.

There are similar proposals in as many as 30 states — including Florida.

Florida House Speaker Allan Bense, R-Panama City, formed a committee to study eminent-domain legislation.

Gov. Jeb Bush has said eminent domain should be used sparingly, and several Florida municipalities have drafted restrictions, including Polk County, Oldsmar, near Tampa, and Palm Bay in Brevard County. Flagler and Volusia counties will consider similar laws.

With momentum building against eminent domain, Charlotte County and other municipalities fear they could lose a valuable tool.

Allowing "emotions to drive the train" instead of viewing the issue from a rational perspective is a mistake, Commissioner Adam Cummings said.

Like most politicians, he said, using eminent domain is distasteful.

"It's not a good way to get yourself re-elected. It's contrary to our interest," Cummings said. "I get to be the one who says, 'We're taking your house away.'"

The perception that eminent domain is acceptable for roads and schools, but not as a growth-management tool, is short-sighted, Cummings said.

When used preemptively, it is most effective. "If you don't like eminent domain, you should be supporting its use for good growth management," he said.

The Murdock Village project is an example of why eminent domain is needed, not exploitive, he said.

If the county allowed the 3,000 mostly vacant parcels in the 1,100-acre area to develop haphazardly, Cummings said, it would have created infrastructure problems — and forced the eventual condemnation of "thousands and thousands of lots for road projects."

For every Murdock Village lot condemned, the county won't have to use eminent domain in four lots elsewhere, he said.

"There are a number of experts from out of town who are making all sorts of misrepresentations of what we've done in Murdock Village," Commissioner Matt DeBoer said, noting "experts" come from as far away as California.

DeBoer was likely referring to the Pacific Legal Foundation, which is representing some Murdock Village landowners in court.

However, he said, some changes within the state's eminent-domain statutes are warranted.

For instance, DeBoer said, landowners whose property is being taken could be permitted to participate in the process as partners.

Had laws permitted it, the county could have offered Murdock Village landowners a lot or a housing deal within the project, he said.

This would be more politically and socially acceptable, and less expensive in the long run, DeBoer said.

Weakening eminent domain would cripple the powers invested in community redevelopment agencies, county officials say.

Commission Chairwoman Sara Devos said this would be a blow in a county where many projects are in the planning stages or just getting under way.

"That has been a wonderful tool for us," she said. "I'd hate to see them take this away from us."

Roth, a lawyer-lobbyist with Tallahassee-based Bryant Miller & Olive PA, said the legislature will debate the issue "in a very deliberate manner."

There are a "wide range" of views on this, she said, ranging from "leave as is" to eliminating it, she said.

The "tougher question" for Charlotte County, Roth said, is finding the right argument to preserve its ability "to do a Murdock Village-type project."

There's no need to search hard for that argument, she said. The county "has a great story to tell here — a story that needs to be told to the Legislature," she said.

Sun-Herald: www.sun-herald.com