Attorney General Charlie Crist News Release
August 17, 2005
Media Contact: Jenn Meale
Phone: (850) 245-0150
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Crist Offers Ideas for Protecting Property Rights

TALLAHASSEE - Attorney General Charlie Crist today sent the following letter to Rep. Marco Rubio, Chairman of the Select Committee on Property Rights, offering suggestions for enhancing Florida eminent domain law following a June ruling by the U.S. Supreme Court in a Connecticut case:

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August 17, 2005


The Honorable Marco Rubio, Chairman
Select Committee to Protect Private Property Rights
Florida House of Representatives
The Capitol, Suite 317
402 South Monroe Street
Tallahassee, FL 32399-1300

Dear Chairman Rubio:

Congratulations on your appointment to lead the House Select Committee to Protect Private Property Rights. I commend you as Chairman, and Speaker Bense, for wisely creating a select committee to strengthen the protections under Florida eminent domain law to even further protect the rights of private property owners. As we all recognize, private property is the bedrock of a stable, prosperous, and democratic society.

As I stated in June, the U.S. Supreme Court's decision in Kelo v. City of New London raises serious concerns as to the protections afforded individual property owners. Under the Court's ruling, property owners, including homeowners and small business owners who may have lived, worked, and provided jobs in an area their entire lives, could be displaced to make way for private development for the sole purpose of supporting new or different economic development. Fortunately, Florida's Constitution and Florida statutory law provide greater protection of private property rights than either the U.S. Constitution or the Connecticut law described in Kelo. However, the Kelo decision was disturbing in its potential application to all states, and a re-examination of Florida law is prudent to ensure that Floridians are not vulnerable to any future Court interpretations that would jeopardize their private property rights.

In response to the Kelo decision, I asked our legal experts in the eminent domain field to evaluate existing Florida law. We also have had discussions with your staff in order to develop proposals for strengthening the law. The following suggestions attempt to outline several considerations our office has identified which I hope will assist your committee as it evaluates the current status of eminent domain law in Florida:

• Change the Presumption in the Law From Favoring the Taking of Property to Protecting Private Property Rights. The legislative findings in the Community Redevelopment Act of 1969 establish the power of eminent domain for public uses and purposes, and declare as a matter of legislative determination that these powers are necessarily in the public interest. Fla. Stat. §163.330 (2005). This presumption in favor of the public interest should be shifted to favor the rights of private property owners by squarely placing the burden on government to show that the exercise of eminent domain is the least intrusive means necessary to achieve an articulated public purpose. The standard articulated by the Florida Supreme Court in Baycol v. Downtown Development Authority of the City of Fort Lauderdale, 315 So. 2d 451 (1975), could be codified in Fla. Stat. §163.330, to shift the presumption in favor of the property owner. In that decision, the Supreme Court held:
      We have been long committed in a consistent series of cases to the proposition that eminent domain cannot be employed to take private property for a predominantly private use; it is rather, the means provided by the constitution for an assertion of the public interest and is predicated upon the proposition that the private property sought is for a necessary public use. It is this public nature of the need and necessity involved that constitutes the justification for the taking of private property, and without proper purpose the private property of our citizens cannot be confiscated, for the private ownership and possession of property was one of the great rights preserved in our constitution and for which our forefathers fought and died; it must be jealously preserved within the reasonable limits prescribed by law. Baycol at 10-11 (second emphasis added).

• Tighten the Criteria for Determining "Blight." In 1981, there were only six statutory criteria to declare an area as "blighted." Now there are fourteen, in addition to a catch-all paragraph allowing condemnation when only one of the criteria is met, provided all taxing authorities in an area agree. Each of the criteria in ss. 163.340(7) and (8) should be reexamined to determine if they adequately protect private property rights. For example, the standards for consideration of the listed criteria could be raised to require that "all or substantially all" buildings meet the listed conditions in a proposed redevelopment area. In addition, a standard listed at Fla. Stat. s.163.340(8)(b) that potentially jeopardizes the private property rights of all Floridians in an economic downturn involves aggregated assessed property values in the area having failed to increase appreciably over a 5 year period. This standard should be eliminated altogether. Another solution may be to require that more than the current minimum of two of the listed criteria -- if not all -- be present in order to qualify an area as blighted for redevelopment purposes.

• Create an Overall Standard in the Law to Limit When Property Can Be Taken. Language could be added to Fla. Stat. §163.375, to define the scope of county and municipal government authority in eminent domain proceedings in a manner that preserves the strongest defense for property owners against the threat of government encroachment on their private property rights. Currently, Fla. Stat. §163.375, establishes the right of any county, municipality, or community redevelopment agency, with county or municipal government approval, to condemn any interest in real property which it deems necessary for community redevelopment. There is no provision in this section that protects the rights of private property owners. To do so, the Legislature could add a clause to that section stating: "The power of eminent domain shall only be used to condemn dilapidated and deteriorated buildings and improvements on real property for community redevelopment purposes."

We look forward to working with your staff in offering guidance to the House Select Committee to Protect Private Property Rights to make any changes necessary to the law that will assure Floridians that their property rights are secure and protected from arbitrary or unconstitutional takings by their government. If we may be of any additional assistance to you, please do not hesitate to call on us.

Sincerely,


Charlie Crist

CC/cdm

cc: The Honorable Allan Bense
Speaker, Florida House of Representatives

Mr. Bob Ward, Chief of Staff
Florida House of Representatives

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