Eminent domain bill likely will pass
Herald Today's staff writer STEPHEN MAJORS reports , that the Florida House gave preliminary approval
to legislation
that would greatly restrict the ability of local governments to take private
property through the use of eminent domain powers.
Major says:
[1] the legislation, which was a response to a U.S. Supreme Court decision and a
product of six months of work by a select House committee, was greeted with few
questions and minor debate from members on the floor.
[2] With the bill slated for final passage in the House, the difficulty
will lie in negotiations with the Senate, which has started moving a measure
that is more restrictive than the House version. The House also gave preliminary
approval to a proposed constitutional amendment that would place the
restrictions in the state constitution. The Senate is currently not considering
a constitutional amendment, which also would have to be approved by voters.
[3]The proper interpretation of eminent domain powers, under which governments
can take private land with compensation and put it toward a public purpose,
became one of the central topics for the 2006 legislative session after a U.S.
Supreme Court decision last June.
[4]In the ruling, the court said that a city in Connecticut could take private
property for the purpose of economic development. The decision inspired a
backlash from many Florida lawmakers, and House Speaker Allan Bense formed a
select committee in the House to study the issue.
[5]Lawmakers from both parties immediately agreed that eminent domain should not
be used for economic development. But now, with the Senate and House on the cusp
of making changes to existing law, the debate will center on just how far to go
with the restrictions.
[6]Local governments have lobbied against any changes to current law, arguing
that the legislation is an overreaction to the Supreme Court decision. The
Florida League of Cities has said that local governments use eminent domain
power in rare occasions and only when necessary to clean up a blighted area.
[7]The bill the House is set to approve decreases the number of acceptable
justifications for the taking of private property, but gives cities and counties
narrow room to clean up areas that are a threat to "public health and safety" by
transferring property to a private entity.
"We have made a policy decision that private property rights will usurp even
the most genuine redevelopment plan if it does not involve remedying a threat to
the public," said state Rep. Bill Galvano, R-Bradenton, who served on the select
committee.
The House bill eliminates slum and blight as rationales for eminent domain
because lawmakers thought those terms were too vague. It also mandates that
local governments must prove with clear and convincing evidence in a court
hearing that a threat to public health and safety exists to be able to take
property. The current standard is a majority of the evidence. The legislation
removes a part of current law that says a court must first presume the local
government is justified when approaching a case.
The bill states that if a government meets the appropriate standards and
takes property, it cannot transfer the property to a private individual for five
years.
The House measure could apply retroactively, putting redevelopment projects
currently under way at risk. It might also go too far, some lawmakers said.
Insightfully Bense, R-Panama City, said the House has produced a bill that properly
responds to concerns about property rights.
"I like our bill," Bense said. "It raises the bar. If you're going to take
someone's property, there better be a good reason for it. We don't want to see
people's homes being taken and turned around and sold to developers."
But the Senate wants to raise the bar even higher. The bill in that chamber
would basically eliminate all justifications for eminent domain except for
traditional purposes such as installing a public road or a school. It will be
heard in the Community Affairs Committee, chaired by state Sen. Mike Bennett,
R-Bradenton, before reaching the floor. The chambers will also have to find a
solution to the question of whether the legislation should apply
retroactively.
Galvano hopes the Senate will defer to the House because of the months of
work and testimony that went into the House plan.
Sen. Daniel Webster, R-Winter Garden, is a main architect of the Senate plan
as chairman of the Judiciary Committee. Webster said the final product of the
two chambers will find middle ground in the "list" of criteria in which a local
government can use eminent domain powers.
"That list is up for discussion," Webster said. "It's a complex issue and
there will be a lot of talk."
He said the negotiations will continue right up until the end of session in
early May.
Galvano said that unlike some issues at the end of session, eminent domain
won't be used as a bargaining chip by the chambers in return for other
legislation.
"This is an issue that polls very well, frankly, and I don't think there's a
desire in any member in either chamber to be seen as the one who's obstructing
private property rights," Galvano said.
