Rethinking eminent domain: Bradenton (FL) Herald, 2/21/06

Lawmakers want to curtail the power of local governments

By Stephen Majors
A special [Florida] House committee striving to form a consensus on how to change the state's eminent domain laws enters its final scheduled meeting today, hoping to recommend a new policy in time for the start of the legislative session on March 7.

The Florida House Select Committee to Protect Private Property Rights was formed in the wake of a controversial U.S. Supreme Court decision last summer that upheld a Connecticut city's effort to take private property for the purposes of economic development.

Fearing that the court's ruling could pave the way for similar outcomes in Florida, state lawmakers have set out to reign in the powers of local governments to take private property for other uses. While some experts said after the ruling that Florida's laws were already more strict than those in Connecticut, legislators decided to take a broad look at the eminent domain laws on the books.

"We all agreed there should be no taking for purely economic development," said state Rep. Bill Galvano, R-Bradenton, a member of the committee.

But the 15 committee members left their last meeting deadlocked on one important matter and hope to reach a compromise today, said Galvano, who practices eminent domain law at his firm in Bradenton.

Lawmakers who wanted to maintain a limited power of eminent domain have agreed that property should be treated on a parcel-by-parcel basis instead of in larger groups. They have also said that eminent domain should only be used to improve areas of slum and blight that meet strict definitions, and that local governments should have to prove the existence of slum and blight with "clear and convincing" evidence. Current law requires that proof to be met with the "preponderance" of the evidence.

Another group of seven members, including Galvano, wanted local governments to deal with areas of slum and blight with their police powers and without the power of eminent domain. Governments have the authority to maintain communities for the public's safety, health and welfare.

The committee's chairman, Speaker-designate Marco Rubio, R-Miami, could have cast the deciding vote but wanted members to reach a consensus.

Local governments have the authority to vote on resolutions classifying an area as slum or blight, and can create Community Redevelopment Areas, or CRAs, to develop the area. Eminent domain is one of the tools that CRAs can use for redevelopment. CRAs can also use financing measures such as bonding and negotiating with private interests, tools that the committee does not want to restrict, Galvano said.

Michael Allan Wolf, a professor at the University of Florida's Levin College of Law, who specializes in local government law, said state lawmakers are being prudent in revisiting eminent domain statutes in the wake of the Supreme Court ruling, which encouraged states to take matters into their own hands.

"I believe there have been many instances in which communities have been revitalized by the purchase of blighted properties and the use of eminent domain to acquire them," Wolf said. "I'm also aware that there have been abuses. It boils down to the capability of local officials. Does the state legislature trust local officials to do the will of the people?"

Manatee County officials are satisfied with the current law, and wouldn't be in favor of taking private property for the purposes of economic development, said County Commission Chairman Joe McClash.

Manatee currently has two CRAs, McClash said, but has not used eminent domain in either case.

"However, there needs to be the flexibility. The line needs to be carefully crafted so we don't need to be afraid of government," he said.

The Florida Association of Counties maintains that current statutes would already prevent local governments in Florida from taking private property for economic development, said spokeswoman Kris Vallese.

But counties are in favor of more specific definitions for slum and blight with regard to the actions of CRAs, Vallese said.

While Galvano previously voted in favor of local governments only using their police powers, he said he was willing to take a look at a compromise.

"This is probably the last meeting to decide whether we'll have a consensus," he said.

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Bradenton Herald: www.bradenton.com