Eminent Domain, Public/Private Land Inventories and Economic Development

Posted on December 16, 2009 by Tad Lunger

Step 1:  Create Redevelopment and Housing Authority (the "Authority")

Step 2:  Authority  identifies areas of city that it wants to designate as a "blight"

Step 3:  Authority creates a Master Redevelopment Plan for areas of city it has determined are blighted

Step 4:  Authority uses public funds to condemn all the privately owned land in redevelopment area where private property owners are unwilling to sell to the Authority at the Authority's price

Step 5:  Authority sells some of the land obtained from private citizens to private entrepreneurs for sums it deems appropriate, holds surplus land in inventory for no specifically identified public purpose

Apparently, this is the basic recipe Roanoke has been following in pursuit of a 110 acre redevelopment area created for Carilion's Riverside Center business and medical park complex.  This case is boiling again because the Roanoke Redevelopment and Housing Authority, whose board consists of 7 members appointed by the Roanoke City Council, condemned and took land from a private property owner that was not was not a blight and was not wanted by the private interests undertaking the redevelopment of the area; this private property was simply located within the area designated by the Roanoke Redevelopment and Housing Authority's Master Redevelopment Plan area.  In short, private property was taken by governmental authority for no specific public purpose, except that the City apparently did not like its use (a flooring business) and wanted to see it redeveloped at some time in the future, and then the land was to be held in inventory until the City decides how it intends to use it.

This raises some pretty interesting questions, doesn't it?  The government takes extensive areas of land from private property owners for no specific public purposes, entrepreneurs lobby the government to acquire the land for private use (or vice versa), and the government sells the land to private interests of their choice in order to achieve their vision of economic redevelopment of an area.  Without the authority to do this, localities will claim they have little ability to achieve badly needed, large-scale revitalization objectives in blighted areas.  With this authority, localities have the capability to take private property owned by one party and give it to another private party that the locality deems more favorable.

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Protection or Pilfering: Stop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection

Posted on December 9, 2009 by Heidi Meinzer

No state has a longer shoreline than Florida – over 2,000 miles of shoreline, with 825 miles of beaches.  These beaches define Florida's top industry of tourism and are in a constant state of erosion.  Understandably, Florida has embraced the “public trust doctrine,” which dictates that tidal lands are held in trust for the people of Florida. The boundary between state-owned tidal lands and upland properties has traditionally been the “mean high water line” (“MHWL”). The MHWL may move inland due to erosion or seaward when land gradually forms (through accretion). However, the boundary will not shift due to a sudden change in the shoreline (through avulsion).

Recognizing the need to protect Florida’s beaches, Florida’s legislature enacted the Beach and Shore Preservation Act (“BSPA”) in 1965. Since then, Florida has restored approximately 200 miles of beaches through sixty actively managed projects.

The BSPA was amended in 1970 to define the property boundary for restoration projects along critically eroded beaches as the “erosion control line” (“ECL”). By adopting a fixed boundary for restoration projects, the BSPA meant to avoid boundaries that were constantly shifting due to coastal dynamics. Under the BSPA, the state would pump sand into the restoration area primarily on the state side of the ECL, creating a buffer of “sacrificial sand” that would protect the beaches and upland property. The 1970 amendments preserved, and arguably supplemented, the rights of landowners whose properties under the Act extended to the ECL rather than the MHWL.

With the devastating hurricane and storm damage we have seen over the last decade, Florida realized that it could no longer focus solely on its southern beaches. Florida decided to spend a total of $15 million – $4 million of state money and the rest paid by the local community and the town of Destin – to restore approximately seven miles of beach in Walton County, a jurisdiction located in Florida’s panhandle. In keeping with the BSPA, the state set the property line at the wet sandy beach.  The project was designed to create a narrow strip of dry beach by piling new sand where water – and therefore sovereign state land – once was.  What the project also created was a legal quagmire between government officials and private landowners that has now made its way to the United States Supreme Court.

State and local officials argue that the restoration project provides the private landowners with storm damage and erosion protection without taking land or property rights from the landowners. The officials note that, consistent with the BSPA, the project preserves all upland owners’ rights of view, access and use of the waters. You can read more on these arguments in the state’s brief and the brief for Walton County and the City of Destin.

Private landowners instead see a “land grab” that robs them of their right to gain land by accretion and their right to have their property in continuous and direct contact with the water. They complain that the officials dumped sand in their backyard to create what is now considered a public beach. To read more on the landowner’s arguments, read Stop the Beach Renourishment, Inc.’s brief and reply brief.

The Florida Supreme Court’s lengthy opinion concluded that the beach restoration program reflected “the state’s constitutional duty to protect Florida’s beaches in a way that reasonably balances public and private interests.” The court found that landowners maintained their rights to access and view the water, but that Florida law provides no basis for the landowners to own the new narrow strip of dry sand as private property, and therefore no basis for the property owners to demand compensation.

The United States Supreme Court has previously addressed whether a legislative or executive decision can amount to a constitutional taking. But now this case – Stop The Beach Renourishment, Inc. v. Florida, Case No. 08-1151 – raises the question of whether a state court decision can amount to an unconstitutional taking of property.  Based on comments from the Justices during oral argument last week, the opinion will likely not be unanimous, as noted in NPR’s December 2, 2009 article, High Court Appears Divided on Beach-Property Case.  Complicating things is the fact that Justice Stevens, who owns a Florida beachfront apartment, was absent from the oral argument, making it possible that the Justices will not have the votes one way or the other to reach a majority opinion.

My guess is that the United States Supreme Court will find a way to avoid deciding the novel issue of whether the Florida Supreme Court's decision can be considered a taking, and will not disrupt the Florida Supreme Court's determination that the beach preservation project did not take any legally cognizable state property right from the land owners.  Any other thoughts or predictions out there?

Image by:  Melissa Nelson/AP
 

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Are You Sure You Really Want to Sign that Petition?

Posted on December 4, 2009 by Tad Lunger

The Supreme Court of Virginia recently accepted a Petition for Appeal by forty citizens of Gloucester County who were hit with sanctions for circulating a petition for signatures and filing the petition with the Circuit Court for Gloucester County to have some members of the Board of Supervisors removed by the Circuit Court.  These citizens circulated the petition per § 24.2-233 of the Code of Virginia, gaining over six thousand signatures, after a grand jury indictment of certain members of the Board of Supervisors.  After appointment of a special prosecutor, the trial court nonsuited the petition proceedings, ordered Gloucester County to pay for the legal fees incurred by the Board of Supervisors, and then imposed two thousand dollar sanctions on each of the forty citizens who circulated the petition. 

According to the facts set forth in the Petition for Appeal, two new members were elected to the Gloucester County Board of Supervisors in 2007, providing one voting bloc with a new majority of votes.  Among other things, upon being sworn in the members of this new controlling voting block promptly announced the termination of the then current County Administrator and the County Attorney.  This was apparently not discussed with the minority Board members, or announced to the public prior to their action to do so.  Upon learning this, the Commonwealth's Attorney for the county began an investigation and a grand jury was ultimately convened, which returned criminal indictments for the four Board members.

Generally speaking, § 24.2-233 provides a procedural avenue for citizens to have elected officials removed from office by the local circuit court for misuse of public office.  However, until July 1 of this year, § 24.2-238 did not have a Subsection B, which now explicitly prohibits the imposition of the aforementioned sanctions.  While there are several other arguments that have been made why sanctions should not be imposed, the Petition for Appeal begs the general question whether the judicial branch may impose sanctions on citizens who organize and petition the government where sanctions are not expressly statutorily prohibited.  What does Virginia want to discourage more: arguably wasteful and distasteful mass petitioning movements or the judicial branch's authority to suppress such petitions?

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