7/31/2005

Eminent domain abuse should worry Floridians: Tallahassee (FL) Democrat, 7/27/05

By Dana Berliner

Thousands of Florida home and business owners facing condemnation (or already displaced) by their local governments so their land can be given to a private developer must have wondered what on earth Florida Attorney General Charlie Crist was talking about.

After the U.S. Supreme Court's Kelo decision upholding eminent domain for private development, Crist said in a widely reported statement that Florida property owners are in no danger from the ruling. Nonsense.

Florida home and business owners were in grave danger before Kelo, and they are even worse off now. Despite repeated claims by the attorney general and others, Florida citizens have very little protection against eminent domain abuse.

The U.S. Supreme Court took away what little protection they might have had by ruling that the U.S. Constitution is no barrier to the use of eminent domain for private profit.

Florida municipalities routinely use eminent domain to take property for private development or to intimidate the rightful owners into selling "voluntarily." Boynton Beach, Daytona Beach, Fort Lauderdale, Jacksonville Beach, Jacksonville, Charlotte County, Riviera Beach and West Palm Beach all have used or threatened eminent domain for private development in the past five years.

The justification is always that the current homes and businesses are too shabby (i.e. "blighted"), and something newer and more expensive would be a better use of the land.

Thus, Riviera Beach plans to demolish more than 1,500 homes, including Conchtown, one of the fewer remaining affordable waterfront areas, and replace them with newer, spiffier hotels and businesses. West Palm Beach condemned a home so that it could be occupied by the manager of a new golf course. Daytona Beach wants to condemn much of its waterfront arcade strip for a new, fancy line of waterfront businesses.

It may not be called "economic development" in Florida, but it's basically the same as taking the Connecticut homes in the Kelo case to make room for an upscale office building.

Those who say Floridians are safe point out that in Florida homes and businesses can't be taken unless they're "blighted." An ordinary person might think she's safe as long as she keeps her home in good condition. Not so. In 2002, perhaps annoyed that local governments actually had to prove there was something wrong with property before taking it, the Legislature amended the definition of blight to make it easier than ever to call property blighted and then to take it.

Until 2002, blighted areas needed to have either deteriorated structures or a condition endangering life and property. Now, however, as long as local governments agree, an area can be declared "blighted" if it meets just one condition from a list of 14.

The broadest of these include "inadequate street layout," "inadequate and outdated building density patterns," and "faulty lot layout." Who decides if your neighborhood is blighted because it has cul-de-sacs instead of through streets, or if your business is blighted because the parking should be in the back of the building? The exact same local government that wants your property for private development.

The Florida Supreme Court initially offered some protection against this sort of abuse, holding in 1975 that under the Florida Constitution "eminent domain cannot be employed to take property for a predominantly private use." However, it hasn't looked at eminent domain for private development since, and lower Florida courts have largely ignored this ruling and show little interest in objections by owners that their land is being taken for another private party.

Worse, in a related context - the issuance of bonds for redevelopment projects - the court signaled an "anything goes" attitude in its willingness to defer to municipalities: "The wisdom of authorizing the cataclysmic demolition and redesign of neighborhoods or even whole districts is not for the court to determine."

If the Florida courts apply that reasoning to eminent domain, Floridians lying in the path of those bulldozers can kiss their homes goodbye.

Unless Florida's Legislature changes the law to ban government takings for private development or the Florida Supreme Court finally steps in to enforce Florida's constitutional protections, property ownership will become just as meaningless in Florida as anywhere else.

Florida citizens can fight back. In the wake of the Kelo ruling, the Institute for Justice and its Castle Coalition grass-roots arm launched a $3 million campaign, Hands Off My Home, to help ordinary Americans learn how to protect their homes and businesses and create legislative change in their states.

Citizens can learn how to get involved - including asking their elected officials to sign the Hands Off My Home pledge against eminent domain abuse - at [the website of The Castle Coalition]: www.castlecoalition.org.


Tallahassee Democrat: www.tallahassee.com

Dana Berliner is a senior attorney at the Institute for Justice, which represents the homeowners in Kelo, and she is the author of "Public Power, Private Gain," a state-by-state report examining eminent domain abuse. Contact her at dberliner@ij.org.