5/25/2006

Salon on cutting edge of eminent domain: Miami (FL) Herald, 4/30/06

An eminent domain case in Hollywood could have statewide implications for the government's ability to force private landowners to sell their property; property-seizure rules could be tightened

By Todd Wright

When Rosario Sotomayor arrived in Hollywood from Peru in 1999, she only wanted to find a way to make a decent living in her adopted home.

Now, the beauty salon where Sotomayor has leased for the past three years in downtown Hollywood has become a symbol in a nationwide debate over the government's power to force the sale of private property for public use.

The city's redevelopment arm wants to take the building that houses the salon and give it to a developer as part of a high-rise condominium/retail development.

The case is now in the courts after Sotomayor's landlord, David Mach and his family, filed a lawsuit to block the condemnation.

Mach claims city officials approached his family to sell late in the process, years after a deal already was negotiated with developer Chip Abele. The agreement called for the city's redevelopment agency to use its eminent domain powers to force unwilling property owners to sell.

''A wrong is a wrong,'' Mach said. ``I equate property rights to human rights and civil rights. They should not be violated.''

Mach, a Hollywood property owner, took over managing the family's rental properties after his father, George, died last year. Despite standing to gain more than $1 million, his family simply doesn't want to sell, he said.

''The building has sentimental value,'' he said. ``We should have the right to say no.''

Last week, he traveled to Tallahassee to speak to committees in the House of Representatives and the Senate.

Earlier this month, Mayor Mara Giulianti was on the witness stand, giving testimony in what could potentially become a landmark case in South Florida. Final arguments are expected this week.

Giulianti and other Hollywood city leaders say the Mach property at 1843 Harrison St. is needed for the project, which will serve a public use by increasing the tax base and improving a long-neglected area of downtown.

In recent years, Hollywood has been leading the way among local governments in Florida that have stepped up using eminent domain to push redevelopment.

Commissioners voted earlier this month to take several vacant lots and a small apartment complex by eminent domain to help Abele with another downtown redevelopment project, valued at nearly $325 million.

SHIFTING SANDS
History is not on the side of the Mach family, although recent court rulings have started leaning toward private property owners, according to one expert.

Florida law allows government to take property for redevelopment as long as it's proved it serves a public purpose.

Sotomayor, 38, still is struggling to understand the complicated legal picture, but she knows her livelihood is at stake.

''I put all my dreams in this shop and nobody cares how I am feeling,'' said Sotomayor, who has run Mach 1 Beauty Salon on Harrison Street for the past three years.

``I never thought I'd be in this position.''

In 2004, Hollywood's downtown Community Redevelopment Agency agreed to use eminent domain if developer Abele had trouble securing all the lots necessary to build his 19-story condo and retail project, which will cost more than $100 million.

The Machs have owned the 2,500-square foot building for 34 years and refuse to sell.

Under the U. S. Constitution, the CRA must pay Mach fair market value, which according to court documents is around $750,000.

Plaintiffs are much more likely to win a legal battle if they fight the amount the government offers for the property, rather than the government's right to take it.

STRINGENT RULES
Still, Florida has some of the most stringent rules in the country governing the rights of property owners when it comes to eminent domain, said Michael Allan Wolf, University of Florida law professor.

Many lawyers point to a 1975 state Supreme Court ruling rebuking efforts by Fort Lauderdale's Downtown Development Authority to take private property for a new shopping mall. The court ruled the taking only benefited the private developer and not the public.

''People have a better shot of fighting it in Florida than in many other states,'' Wolf said.

Nationally, Florida is firmer than most states in looking after owners' property rights.

But courts historically have given cities a wide berth in deciding what constitutes a ''public purpose,'' said James W. Ely, professor of law at Vanderbilt University who specializes in eminent domain law.

CLAUSE DRAINED
''The courts have been increasingly receptive to let government do pretty much whatever it wants as long as they say it's for a public purpose,'' he said. ``Elected officials have drained the public use clause of much meaning.''

The trend may be shifting.

In recent years, courts in Michigan and California have sided with property owners who fought eminent domain, but both states have rules prohibiting eminent domain solely to push economic development, Ely said.

Michigan prohibits taking land for any economic development purpose, but officials in Detroit and Wayne County tried to condemn property for an office park.

In California, officials attempted to take a small business to pave the way for a Costco to expand a parking lot.

SINCE THE '05 RULING
Fifteen states have beefed up their eminent domain rules in the past year following a 2005 U.S. Supreme Court ruling on a Connecticut case that determined it was OK for government's to take private property for economic development purposes.

Despite the 2005 ruling, cities still may have to contend with lawsuits depending on the rules of each state, Ely and Wolf agree.

Florida law, for example, leaves much to interpretation because it has no specific statutory limit on cities taking land for redevelopment.

That soon may change.

The Florida Legislature has taken up the issue in the waning days before the session is scheduled to end Friday.

''It's big guy versus little guy,'' Ely said. ``And the little guy is left with no resort except lose their property or go to court.''


Miami Herald: http://www.miami.com/mld/miamiherald