High Courts Land Ruling May Have Local Impact

By Armie Margaret Lee
Local development officials see last week’s US Supreme Court ruling

on eminent domain widening the scope for land condemnation.

Some see it as government’s acquisition of private property for public use through eminent domain.

The ruling on a Connecticut case will encourage condemnation, but not in Florida, said Neisen Kasdin, a partner at Gunster, Yoakley & Stewart and former mayor of Miami Beach.

"Governments would feel they have a stronger hand to use condemnation as a tool for redevelopment," said Mr. Kasdin, who chairs the Urban Land Institute for Southeast Florida and the Caribbean.

The court ruled that local governments may take private property for economic development.

"It’s a signal to cities that we can be bold to take steps that we believe are in the best interest of the citizens," said Coral Gables Mayor Donald Slesnick.

The ruling, he said, gave a dynamic interpretation of what public good is.

Florida Attorney General Charles Crist wrote that the decision would subject private property to the whim of the local government but that wouldn’t be the case in Florida, where law provides greater protection for private property owners than does the US Constitution or Connecticut law.

In Florida, property can be seized through redevelopment using eminent domain only if it is identified as a blighted area and only if it would primarily serve a public purpose.

"Quite simply, eminent domain is not available in Florida if the benefit to a private party is the paramount purpose of the project," Mr. Crist wrote in a statement.

"While it is usually true that every new business, manufacturing facility or industrial plant will provide some benefit to the city in which it is located, under Florida law these benefits to the public are not sufficient by themselves to allow for the taking of private property," he added.

But an attorney with Akerman Senterfitt said the definition of public purpose has been construed widely, citing a 1997 Tampa decision that advanced the proposition that a football stadium could be a public purpose. That decision could support acquisition of property in Miami to build a stadium for the Florida Marlins.

"The Tampa case justified utilization of bonds for constructing a stadium," said Bradley Gould. "Although it was for a private team, it was deemed for a public purpose."

Mr. Gould said the judge in the Connecticut case had pointed to Florida as being a state where the definition of eminent domain remained unclear.

"The Florida Legislature has adopted blight factors," he said, "which are very vague and require subjective interpretation. He suggested that the wording was loose – almost anything can be justified as slum or blight. Existing statutory provisions have evolved building on the argument that a property is causing the spread of disease and crime."

Moves are afoot to tighten Florida’s definition of eminent domain. A bill to amend it is on its way through the Senate.

Until they are amended, Florida Statutes prevail. Mr. Gould said it’s possible that parties could make bad faith applications citing incorrect law or use the case as persuasive argument.

"Whether or not a reading of the case should be confined to the facts and provisions of Connecticut," added Coral Gables attorney Perry Adair, "the decision supports an argument that a broader rather than narrower interpretation of state legislation is to be encouraged."