Crimping eminent domain: St Petersburg FL Times, 11/12/06

Homeowners see a victory, but governments say the results may hamper revitalization

By Carrie Weimar

In a divisive political season, it was one issue that united Democrats and Republicans.

Amendment 8 to the Florida Constitution, which limits government’s ability to seize property for private development, passed overwhelmingly last week with 69 percent of the vote.

The popular amendment could have a big impact on future development around the state.

Supporters say it gives much-needed protection to homeowners in the wake of a controversial U.S. Supreme Court ruling allowing homes to be bulldozed if such boosts the local economy.

“This draws a line in the sand and restores the balance of power for property owners to where it should be,” said Carol Saviak, executive director of the Orlando-based Coalition for Property Rights.

But local government officials said the amendment was inspired by fear and misinformation. They say it’s potentially crippling to local governments and could hinder the revitalization of inner cities.

“One day in the near future, Floridians are going to wake up and realize they have been duped,” said Michael Brown, the mayor of Riviera Beach who wants to use eminent domain to clear the way for a multibillion-dollar redevelopment project in his city.

“Local governments were finally trying to use eminent domain the way it was supposed to be used,” Brown said. “Now the politicians have pulled the rug out from under them.”

Fear and confusion
The controversy over the use of eminent domain started in New London, Conn., when Susette Kelo and several other homeowners in their working-class neighborhood filed suit after the city announced plans to bulldoze their homes to make way for a hotel and offices.

New London officials argued the development served a public purpose by boosting economic development that outweighed the rights of property owners.

In June 2005, the Supreme Court ruled 5-4 for the city.

In Florida, politicians rushed to pass new restrictions.

Locally, Oldsmar and Dunedin banned the use of eminent domain for private development.

The Legislature responded earlier this year with a law strictly limiting the use of eminent domain. Lawmakers also proposed the constitutional amendment, which strengthens the law by requiring a three-fifths vote of both houses to add any exemptions.

The change in the law means government can’t use eminent domain to eliminate blighted property or create affordable housing, said Kraig Conn, legislative counsel for the Florida League of Cities. It can still use the power for a public purpose, such as condemning houses to build a highway.

“There was a hysteria after the Supreme Court case,” Conn said. “If you did a reality check, you would say you can tighten down the use of eminent domain without throwing the baby out with the bath water.”

But Conn said the situation could be worse: The Legislature was originally proposing a more draconian amendment that would have required voter approval for any change to eminent domain restrictions.

“We opposed any constitutional amendment,” Conn said. “But we chose the one that gives government agencies a chance to plead their case to the Legislature.”

Losing a tool
Local governments in the Tampa Bay area have used eminent domain to help create some popular area attractions.

Tampa used the power to acquire land for parking garages in Ybor City. St. Petersburg used it to assemble six blighted acres for Bay Plaza, an ill-fated $200-million shopping complex. The land was later used to create BayWalk, the bustling downtown shopping and entertainment center. Eminent domain can no longer be used for such projects.

Rick Mussett, St. Petersburg’s development administrator, said eminent domain can be useful to revitalize a depressed area.

But the practice was always a last resort, he said. It’s typically cheaper — and easier — to settle disputes with property owners without using it.

“It can be a good tool,” Mussett said, “but it’s not very practical to use.”

Florida wasn’t the only state taking action. In the nine states with ballot measures limiting eminent domain, all won big, according to the Institute for Justice, the nonprofit law firm that represented Kelo during the Supreme Court case.

“Tuesday really showed us that people really hate the idea of eminent domain being used for private development,” said Dana Berliner, a senior attorney with the institute.

With the passage of the amendment, Florida homeowners now have more protections than almost any other state against eminent domain for private development, Berliner said.

Whether that’s a good thing remains to be seen, said Michael Allan Wolf, a professor at the University of Florida’s Levin College of Law.

“This takes decisions away from the officials closest to the problems that are facing local governments,” Wolf said. “It’s unnecessary.”

St Petersburg FL Times: http://www.sptimes.com