Signs of Hope?
August 3, 2010
Each week, CPR reports to its land owner members and elected officials on issues and trends affecting property rights in Florida and across America. In our efforts to alert citizens to dramatic erosion of their freedom, we do not paint a particularly pretty picture of local government and often for good reason. What we are witnessing at the city and county level is very ugly and represents an assault on the American ideal of freedom.
However, this week, we are reporting that we are seeing a few “signs of hope” out there. Some local officials appear to be experiencing a new level of “economic enlightenment.”
Perhaps the impact of the recession has done what sound intellectual argument could not.
Perhaps the task of managing increasingly deeper budget cuts and watching their own colleagues being laid off is teaching an important economics lesson that regulation and the wholesale suppression of property rights directly affects the health of both private and public sector economies. The public sector is generally the last sector hurt in floundering economies, but in the current prolonged recession even the public sector has been impacted.
Local government staffers, from entry level contract employees to the highly-paid managers are no longer immune from budget-based terminations. Their taxpayer-funded benefits and pension plans are no longer guaranteed to continue untouched in the wake of falling property values.
Incumbency is not a virtual guarantee of re-election and in fact, many incumbents are pulling out all stops to distance themselves from what is being called the “taint of incumbency.” Voters are angry and savvy officials recognize they can either change their mindset or be sent packing.
Perhaps the personal fear for their own jobs has made finally brought home the everyday economics property owners and all private sector employees face each day. The lessons of Main Street are becoming personal to the government leaders and employees formerly insulated from economic risk.
CPR recently witnessed a very small glimmer of hope and an indication the recession’s impact may be reaching line level staffers who have previously treated property owners as second class citizens instead of as their true employers.
CPR participated in a 2-day public workshop held by the Planning and Zoning officials in Osceola County. The zoning staff appeared to be earnestly seeking input from land owners and local business owners on revisions being considered to Osceola’s sign ordinance.
Unlike other municipalities which provide little to no direct notice to individual property owners when making significant changes to regulations, Osceola County’s Zoning Manager individually notified all affected property owners within “Sign Zone A” in addition to the standard notifications. This direct outreach is worthy of commendation and appropriate when considering regulatory changes which directly impact the use and value of properties and the health of local businesses.
Osceola County is reviewing regulations across a wide array of sign options, from the square footage allowable on large-scale pole signs preferred by large commercial plazas to the inexpensive store window decals relied upon by many Mom-and-Pop businesses. CPR’s input was welcomed and we were provided an extended opportunity to express the property rights’ perspective on each of the changes being considered.
We were pleased to learn the County is considering increasing and expanding some signage options in the apparent effort to both listen to and support the health of local businesses. This is an approach worth replicating!
To be fair, Osceola may still be considering restrictions of some signage options, but it appears there is at least an appreciation of the need for increased flexibility in some categories of business signage. At a time when we are seeing many municipalities still moving forward with additional restrictions affecting land owners, the fact that any municipality is advancing measures of relief which provide greater freedom of choice is noteworthy.
CPR pointed out to representatives at the workshop that much of the content of sign regulations, in general, goes beyond the basic duty of government to protect the public’s health and safety and is applied as an aesthetic preference.
We asked Osceola’s Zoning Manager, as a pre-cursor to moving forward with any additional restrictions, to consult with other government agencies charged with the protection of health and safety as to whether there is any empirical basis for increasing regulation. They should consult agencies, such as the Department of Health and other authorities as to what threat to the public’s health or safety is occurring that would trigger a reason to increase regulation of a certain sign type. Have any deaths or illnesses in Osceola County been linked to signage height, width or square footage? Are window decals causing a new type of flu outbreak. If not, why increase regulation and limit the freedom of property and business owners to communicate with their customers? When no genuine threat to the public’s health or safety exists, regulations should not exist.
In the absence of such evidence, sign regulations and restrictions are nothing more than an abuse of police power to assert the personal preference of a handful of citizens on all property owners.
It is also important to remember the primary purpose of signage is to drive customers to business.
Restrictions on signage, in the absence of a documented threat to public safety – such as a real structural safety concern – unnecessarily limit the ability of businesses to communicate with and attract customers. Businesses without customers are not generally healthy businesses.
For government entities dependent on tax revenue, regulatory actions which decrease the oppoortunity for success of local businesses brings to mind the idiom, “cutting off one’s nose to spite one’s face.”
It would be interesting to survey the employees in various local zoning departments to see if an increasing number are acknowledging the direct link between the success of local businesses and their personal job security.
In the past, many agents in local government have viewed property owners as “the opposition.” Some prioritize “empire building” and believe regulation is the key to expanding their fiefdoms. If these individuals had paid rapt attention in their economics courses, they might better appreciate the fact that private sector expansion is the only mechanism that can support public sector expansion without government borrowing or printing more money, which in turn devalues a nation’s currency and can lead to full economic collapse.
With even long-term department managers now facing budget guillotines and projections that local government budgets will continue to hemorage into the foreseeable future…CPR is hopeful that this awareness will continue to spread.
Imagine what could happen to the economy locally and at the state and national level, if government staff and elected leaders began truly listening to the property and business owners who have the power to create wealth and jobs about the need to remove the extraordinary regulatory weight now stifling our economy. Imagine if that weight were lifted off the American economy and individuals were freed and encouraged to build their dreams.
The cultural appreciation of property rights and the benefit of limiting government regulation are the ideas CPR is working to advance every day.
(Note: Osceola’s ray of hope is regretfully a narrow one. Unbelievably, four members of the County Commission, including Commissioners Fred Hawkins, Ken Smith, Brandon Arrington and Michael Hartford cast votes this past week to put an additional sales tax increase on the November ballot. Osceola County’s economy has been hard hit by the recession. It boasts the highest foreclosure rate and highest unemployment rate in the Central Florida region. If the rate hike is approved, the County could also boast the highest tax rate. Let us hope Osceola’s voters send the unenlightened members of the Commission who backed this tax proposal packing in the coming election cycle. Commissioner John Quinones cast a lone dissenting vote and should be applauded!)
REPORT A “RAY OF HOPE”
This week, CPR members and readers are encouraged to report any de-regulatory actions being undertaken at the local level in Florida. If you are witnessing local officials repealing any aspect of land use regulation or adopting pro-active pro-property rights measures as a mechanism for stimulating the local economy, we’d like to hear about it!
Reader responses welcomed! carolsaviak@aol.com
FLORIDA HOMETOWN DEMOCRACY CAUGHT HIDING THE BALL ON FINANCIAL REPORTS, COMPLAINT REVEALS
Florida Chamber complaint shines light on numerous Amendment 4 campaign violations; urges Florida Elections Commission to investigate further
TALLAHASSEE, FL – The Florida Chamber of Commerce today filed a complaint with the Florida Elections
Commission against Florida Hometown Democracy, Inc., the Political Action Committee (PAC) sponsoring
Amendment 4, a proposal to alter Florida’s constitution.
Blake Gaylord Named in Florida Trend Magazine Legal Elite as a “Up & Comers”
Background
Blake Gaylord is a December 2007 graduate of Stetson University College of Law. He joined Gaylord Merlin Ludovici Diaz & Bain as an associate in spring of 2008 where he began practicing in the field eminent domain and property rights.
Accomplishments
While at Stetson University, Mr. Gaylord, achieved multiple honors including being recognized as one of three Outstanding Graduates in the Fall of 2007 and was the recipient of the Fall 2007 Attorneys’ Title Insurance Fund Award for outstanding performance and interest in the fields of property, real estate and land use planning. He was also member of the winning teams for both the ATLA/Yerrid Law Group Trial Competition and the Stetson College of Law Advanced Trial Competition. Mr. Gaylord has written articles regarding eminent domain which include “Eminent Domain Issues Raise Need for Condemnation Clauses,” Tampa Bay Business Journal (2007) and “Condemnation Clauses for Landlords and Tenants: An Ounce of Prevention is Worth a Pound of Cure,” Petrogram: News for Florida’s Petroleum and Convenience Store Industry (Winter 2007).
Memberships
Mr. Gaylord is a member of the International Council of Shopping Centers (ICSC),The Florida Bar Association and the Hillsborough County Bar Association.
Personal
Mr. Gaylord was born and raised in Tampa, Florida where he remained until his admission to the United States Merchant Marine Academy in Kings Point, NY. While at the Academy, he spent a year at sea as a seaman’s apprentice delivering commercial cargo to ports in Belgium, England, France, Germany, Holland, Israel, Malta, Mexico, Spain and Tunisia. After his time at sea, Mr. Gaylord was licensed as a Third Mate for Vessels of Unlimited Tonnage and an Advanced Marine Firefighter. Upon graduation from the Academy, he served for five years as an officer in the United States Army as a Platoon Leader of an amphibious watercraft platoon, the operations and planning officer of a waterborne battalion and as an executive officer for a contingency contracting detachment . This time included service with the Coalition Forces Land Component Command in Kuwait and Afghanistan during the Global War on Terror. He is married to Haven Davis Gaylord and together they enjoy free diving, spearfishing, running, biking and participating in triathlons.
Contact
You can contact Mr. Gaylord here or by calling 813-221-9000.
Amendment 4: Practical Experiences with Land Use Planning Via Referendum
In the winter 2009 edition of Petrogram, I wrote about the anticipated damage of Amendment 4 coming before Florida voters on November 4, 2010. Since that article was written, detailed information has been published around the state that should be considered by anyone who is undecided or in favor of this amendment.
Read more here at “Amendment 4” by S. Cary Gaylord
New “No on 4″ Video Released & Property Tax Alert
July 16, 2010
The “VOTE NO on 4″ Campaign has released the third installment in its “Story of St. Pete Beach” web-video series which features a Florida property owner hurt by a local version of Amendment 4. The last two “VOTE NO on 4″ videos have racked up more than 135,000 “hits” or views. Take a few moments today to view this new video and pass it along to your e-contacts: http://florida2010.org/index.cfm?fuseaction=pages.videos2&vidid=0_on319a7n
Sharing these videos via email is a quick, convenient and cost-free way for you to help educate Florida voters on the devastating local impact of this anti-property rights amendment.
“With more than 280 supporting organizations and nearly 2,000 volunteers, our campaign has been able to distribute web-videos quickly and broadly,” said Ryan Houck, executive director of the “VOTE NO on 4″ campaign. “We’ve also released dozens of volunteer videos, featuring business, civic and labor leaders sharing their views on Amendment 4.” Those videos can be found at http://www.florida2010.org/.
Citizens for Lower Taxes and a Stronger Economy (The “VOTE NO on 4″ campaign) is the political committee which was formed to oppose Amendment 4. They are coordinating a grassroots network of more than 30 local campaign chairs and over 1900 volunteers. To date, more than 280 labor, business, civic, and planning organizations oppose Amendment 4; more join the fight every day. To access materials you can share with friends, families, co-workers and others in your personal or corporate communications networks, please visit http://www.florida2010.org/.
URGENT PROPERTY TAX ALERT:
In a recent CPR newsletter entitled, “Protect Your Property, By Checking Its Working Value,” CPR stressed the importance of property owners pro-actively contacting local property appraisers to learn current “working” or estimated assessed values - in order to ensure that if your property’s assessed value has decreased, your official assessed value reflects the decrease so your property tax burden may be reduced. (CPR’s newsletter on this subject can be viewed at http://www.proprights.com/newsviews/display_newsletter.cfm?ID=877) At the recent seminar hosted by the Akerman Senterfitt law firm, attorney Jim McCann underscored the importance of all property owners reviewing their assessed values this year because of market conditions. He particularly stressed the importance to non-homestead property owners taking pro-active action this year. He reminded non-homestead owners of the potential for multi-year property tax savings due to Florida’s relatively new 10% cap on non-homestead property tax assessments and of the potential 5% cap which would also take effect if Florida voters approve Amendment 3 in November. Vigilance this year will ensure that your assessed value reflects the full drop in market value and also accounts for the eight factors directly referenced in Florida’s statutes. If your assessment doesn’t drop as expected or does not accurately reflect the value of your property, you may not realize a property tax benefit in 2010 or future years. One of the speakers at the seminar referenced -35% value as his general benchmark for commercial property values, but stressed it was a general statewide guideline. With potential multi-year property tax savings on the table, smart owners will take a hard look at their assessed values this year.
LET YOUR VOICE BE HEARD ON PROPERTY TAXES:
Municipalities across Florida are holding public hearings on local budgets and property tax millage rates. As you might expect, rather than cut local government spending, many officials are considering millage rate hikes. If property owners do not communicate loudly, municipal leaders may view the silence as apathy or even approval of their plans to hike millage rates. Raising property tax rates in a recession with double digit unemployment is simply unconscionable. If you have not communicated with each one of your local elected officials regarding your property tax rate, NOW IS THE TIME. Let your voice be heard.
ATTEND AN UPCOMING “NO on 4″ COFFEE:
One of CPR’s partners in the fight to defend private property rights - the Orlando Regional Realtor Association – is hosting a series of “NO on 4″ coffee presentations at locations across Central Florida. CPR encourages its members to attend and bring guests unfamiliar with the serious threat posed by Amendment 4. Attendance is FREE, but RSVPs to kellief@orlrealtor.com are appreciated. To view the full ORRA coffee schedule, visit: http://www.orlrealtor.com/Main/Main.asp?CategoryID=21&SubCategoryID=1438&
- July 29 (Thurs.), 9-10 a.m., Panera Bread, 1210 S. International Pkwy., Lake Mary
- August 19 (Thurs.), 4-5 p.m., Panera Bread, 1117 Florida Mall Ave., Orlando
- September 9 (Thurs.), 4-5 p.m., Panera Bread, 696 E. Altamonte Springs Dr., Altamonte Springs
- September 16 (Thurs.), 4-5 p.m., White Wolf Café, 1829 N. Orange Avenue, Orlando
ATTENTION BREVARD COUNTY PROPERTY OWNERS:
Another CPR partner, the Citizens for Constitutional Property Rights (CCPR) organization of Brevard County, will hold its monthly dinner meeting Monday, July 19, 2010, at 6:30 p.m. at Jimmie’s Restaurant in Rockledge (Turtle Creek Golf community, off Barnes Boulevard.) Speakers will include representatives from Brevard 9/12 who will discuss Project 9/12′s purpose and impact. Members of the public and candidates for office are invited. For more information please contact Peachy Thompson at (321) 453-4433 or via email CKT9@bellsouth.net.
SUPPORT CPR’S WORK TO PROMOTE A CAPITALIST, OWNERSHIP SOCIETY:
Join the Coalition for Property Rights today and let your voice in support of a private ownership society be heard. Our rights are being eroded at an alarming rate. As citizens, we have only two choices: we can fight the erosion of private property rights with increased unity and collective strength in number OR watch America continue to move down the path toward socialism and complete government control over our land use rights. If property-minded citizens do not fight back, the end of ownership as we know it is certain. If you support the idea of private ownership and believe in your civil rights as an American citizen to own and control your private property, JOIN CPR or RENEW YOUR MEMBERSHIP TODAY. CPR is a non-profit organization whose work to promote and defend private property rights is entirely supported by the generosity of our members and sponsors. To sign up TODAY, simply utilize the following convenient link www.proprights.com/contribute/ which also offers a mail-in membership form option.
Reader responses always welcomed! Carolsaviak@aol.com
US Supreme Court Sanctions Erosion of Property Rights
June 18, 2010
There are days when one really has to question just how far America has fallen away from the ideals of our Founding Fathers. Yesterday was one of those days. In a unanimous decision, the U.S. Supreme Court sanctioned the further erosion of property rights. The Court has essentially given the State of Florida carte blanche to alter the property boundary lines of ocean-front property owners and to turn all private ocean-front land into ocean-view property. In its ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., our nation’s highest court has once again failed to provide justice to individual citizens harmed by the actions of government.
While CPR can appreciate the complexity of the legal issues accepted for review by the US Supreme Court and its limitations in reviewing cases within the context of state law, state case law precedent and a very specific set of facts argued in the lower courts by the opposing parties, it is heart-breaking to see rulings like this one from our nation’s highest court. The citizens who filed this lawsuit were in fact harmed and impacted by the actions of government. Government agencies changed their private property boundary lines and if that doesn’t represent a taking of private property rights – what is it then?
Prior to the government action (in this case, the beach renourishment project), these owners owned private ocean-front property with well-established property boundary lines reaching down to the mean-high-water mark. Hundreds of thousands of other water-front properties across America have similar MHWM boundaries. These properties are among our nation’s most valuable real estate because of this direct water frontage. As a direct result of a government action and subsequent state court rulings, these owners now own lands whose boundaries have been severed from the waterline; they have been given a new property boundary line set arbitrarily by the state (known as the ECL); and a stretch of public land or beach will now separate their waterfront property boundary from the water. Oceanfront property has been converted to ocean-view property. How can you effectively take away the ”water” from “waterfront” property and say that a taking has not occured?
For owners and investors, there is a dramatic value difference between oceanfront and ocean-view property, but apparently physical boundary line changes with clear economic consequences are of absolutely no consequence to our nation’s highest court. They chose not to recognize an oceanfront owner’s right to have their property maintain contact with the ocean.
By treating the properties’ direct contact with the water as completely inconsequential, they somehow overlooked the fact that that direct contact was a very significant factor in the owners’ selection and purchase of the properties, not to mention the “investment-backed expectations” which are a key factor of consideration in most takings cases.
For non-ocean front property owners who may feel little commonality with those who do, just ask yourself how you would feel if you learned the U.S. Supreme Court had just fully sanctioned the ability of local and state governments to move your front yard property boundary line back onto your property and to establish that the stretch of land between your boundary line and this new line was now public property – without asking your permission or consent and offering you no form of compensation for this encroachment and diminishment of your land. This is exactly what occurred to property owners in Florida’s panhandle and which is now fully permitted to occur across all Florida.
Property owners across America should be outraged. They should also prepare to see this case thrown in their faces in a myriad of other ways as government entities use the Stop the Beach decision to expand their power over private property.
While we have witnessed an unprecedented erosion of property rights in the last few decades, we are on the cusp of the greatest era of property rights takings in American history, due in large part to the rise of the environmental movement nationally and its extraordinary influence on the current administration.
The Supreme Court has again swung the door wide open for government agencies to trample private property rights. In Florida, owners of ocean-front property with once private beaches should fully expect to see signs out their windows which read, “Public Beach – Coming Soon!”
As with the infamous Kelo v. New London eminent domain abuse case, the Court had a perfect opportunity to check the power of government and to say loudly, “There are limits to government power and you just can’t treat American citizens this way.” They chose not to.
However, like the Kelo case, this national property rights’ case may have a silver lining. There are two positive aspects of this ruling:
1) The ruling opens the door to state-level legislative reforms to address the key issues which prompted the case – the absence of due process protections and compensation for property owners impacted by beach renourishment/restoration projects are what triggered the case. Just because the U.S. Supreme Court ruled that Florida’s Supreme Court did not err in supporting existing state law, does not mean that we have good public policy on the books today. We do not. Florida’s next Governor and state legislative leaders such as incoming House Speaker Dean Cannon and incoming Senate President Mike Haridopolos have before them a perfect opportunity to fix the bad law which triggered this case.
2) Four justices on the court joined in an opinion recognizing that the judicial branch of government is not insulated from the protections afforded to private property rights by the U.S. Constitution. This statement from the Court represents a positive development in the consideration of judicial takings arguments and puts America’s lower courts on notice that judicial rulings which eliminate established private-property rights can constitute takings. In the exact words of the Court, “a judicial elimination of established private-property rights that is foreshadowed by dicta or even by holdings years in advance is nonetheless a taking.”
To view the full decision: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf
This disappointing ruling will not end the conflict created by the current construct of Florida’s law regarding beach renourishment and restoration projects.
This ruling, combined with the environmental disaster impacting the Gulf of Mexico will continue to pit property owners against the State until the Florida Legislature addresses the fact that Florida property owners are not treated fairly under the current law. The Legislature may also have an urgent need address the issue of how beach restoration or renourishment efforts which are paid for or executed by third parties (such as BP) may proceed. Undoubtedly, the same state law which failed to address property rights concerns may not have made adequate provision for dealing with this unexpected third-party payer scenario. Both must be addressed via immediate reforms. At a minimum, provisions should be added to allow individual owners to contribute private “fair-share” funds toward public renourishment projects and other options by which they can be allowed to maintain their existing MHWM boundary and still accomplish basic restoration goals.
As demontrated by the public reaction to the Kelo case and the rapid rise of the Tea Party movement, average citizens do understand government overreaches. An overreach is what triggered the Stop the Beach case. The owners felt their government had broken good faith with them by not respecting their property boundary lines. You can only push the American people just so far, before they begin pushing back.
It is circumstances like this, where we are witnessing government agencies blatantly altering property boundary lines with no accountability from our nation’s highest courts, which demonstrate the dire need for property owners to unite together and to begin the hard work of affecting change.
In two of its last three major property rights decisions, our nation’s Court of last resort has further empowered government over the people’s rights. When government can openly take away private homes and trample property boundary lines, just where do you believe that push for power will stop if these actions are not confronted by an outraged public?
THANK YOU FOR FIGHTING BACK!
CPR would like to take a moment to say thank you to the courageous citizens who filed the Stop the Beach Renourishment, Inc. complaint, who funded its journey up to and before the U.S. Supreme Court and the talented attorneys who worked on the petitions and amicus briefs. There is extraordinary virtue in fighting these national property rights cases. We have a civic and moral responsibility to continue to seek to right the wrongs being perpetuated against America citizens by government entities whose first focus should be protecting private property and individual rights.
JOIN THE FIGHT TODAY!
Turn your anger into action. If you believe property boundary lines should be respected and not be arbitrarily altered by government, we invite you to join a growing number of property owners who are standing together to promote the value of property rights and working to defend our collective rights. The Coalition for Property Rights invites you to join as an official member or renew your membership today through our convenient online form available at: www.proprights.com/contribute/ or by a mail-in form available via this same link. For more information about our work or for details about individual membership or corporate sponsorship, please visit http://www.proprights.com/ or call 407-481-2289.
ACTION ALERT - ORANGE CO. PROPERTY OWNERS:
Join CPR supporting the property rights of an Orange County land owners group fighting for permission to use their land in a project known as “Innovation Way East.” NIMBYs and environmental activists are actively campaigning to deny these owners the basic right to use their private lands. Learn more about what’s at stake and help this owner by communicating with Orange County leaders via the attached convenient website: http://orlandoinnovation.com/
UPCOMING “NO on 4″ EVENTS:
ORRA’s “NO on 4″ COFFEES. One of CPR’s partners in the fight to defend private property rights - the Orlando Regional Realtor Association – is hosting a series of “NO on 4″ coffee presentations at locations across Central Florida. CPR encourages its members to attend and bring guests unfamiliar with the serious threat posed by Amendment 4. Attendance is FREE, but RSVPs to kellief@orlrealtor.com are appreciated. To view the full ORRA coffee schedule, visit: http://www.orlrealtor.com/Main/Main.asp?CategoryID=21&SubCategoryID=1438&
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- June 24 (Thurs.), 9-10 a.m., Panera Bread,8600 Vineland Ave., Orlando
- July 1 (Thurs.), 9-10 a.m., Panera Bread, 1117 Florida Mall Ave., Orlando
- July 8 (Thurs.), 4-5 p.m., Friendly’s Restaurant, 12185 Collegiate Way, Orlando
- July 15 (Thurs.), 4-5 p.m., Panera Bread, 2480 SR 434 West, Altamonte Springs
- July 29 (Thurs.), 9-10 a.m., Panera Bread, 1210 S. International Pkwy., Lake Mary
- August 19 (Thurs.), 4-5 p.m., Panera Bread, 1117 Florida Mall Ave., Orlando
- September 9 (Thurs.), 4-5 p.m., Panera Bread, 696 E. Altamonte Springs Dr., Altamonte Springs
- September 16 (Thurs.), 4-5 p.m., White Wolf Café, 1829 N. Orange Avenue, Orlando
JUNE 24th “COMMUNITY CONVERSATION” ABOUT AMENDMENT 4. The Central Florida Chapter of NAIOP is hosting a “Community Conversation about Amendment 4” on Thursday, June 24 from 4-6:30 p.m. at the Orlando Museum of Art. (Program 4:30-5:30, Reception 5:30-6:30). For more information contact Shannon Miller at 407-227-7461 or email at Shannon@naiopcfl.org.
Reader responses welcomed! carolsaviak@aol.com
Carol Saviak Executive Director Coalition for Property Rights 2878 S. Osceola Avenue Orlando, FL 32806 407-481-2289 407-481-0834 fax http://www.proprights.com/Supreme Court decision backs beach renourishment
Courtesy of the Pacific Legal Foundation—http://community.pacificlegal.org
The Supreme Court today decided Stop The Beach Renourishment v. Florida Dept. of Environmental Regulation, a crucial case on the question of whether courts can retroactively erase property rights in the guise of legal interpretation without having to compensate property owners.
The Fifth Amendment requires government to compensate people for taking their property away, and this also applies if the government enacts a rule that forbids people from using their property in any way. But according to a precedent called Lucas, no compensation is required if the rule that forbids the use of property “inheres in the background principles of state law”—that is, if the reason you’re not allowed to use your land is some long-standing common law principle, like nuisance. The takings clause does not require the government to compensate you for stopping you from running a dynamite factory next to a kindergarten.
The problem is that courts sometimes try to go back and rewrite state property law in order to take property from people without compensation. Although the Supreme Court has sometimes said that that wouldn’t be allowed, the Stop The Beach Renourishment case is the first time the Court has discussed the matter at length. In today’s decision, the justices found that such a thing did not happen here—but in section II of the opinion, four of the justices went on to explain why this would not be allowed:
States effect a taking if they recharacterize as public property what was previously private property…. The Takings Clause…is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor…. There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat…. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.
This is excellent news for the rights of private property rights. Whatever one thinks about the end result of the decision, the fact that the Court continues to recognize that state courts do not have free rein to redefine private property at will is of critical importance.
PROPERTY RIGHTS IN THE COURTS
Special edition by Carol Saviak & Jourdan Viele
4th DCA Rules State Must Pay for Citrus Seizure
Florida’s Fourth District Court of Appeal in West Palm Beach recently returned a unanimous ruling in favor of a large group of Broward County residents fighting to have their Constitutional property rights respected. The judge stated, “government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them. Under any possible meaning, if government cuts down and burns private property having value, the government has taken it. And if government has taken it, government must pay for it.”
The Compensation Clause in the Fifth Amendment to the US Constitution states, “nor shall private property be taken for public use, without just compensation.” However, from 1995 to 2006 the rights of Florida citizens were trampled in the State’s zeal to combat citrus canker. Approximately 866,000 private citrus trees were destroyed in Florida, often against the objections of owners and without proper compensation. State officials felled citrus trees in backyards and commercial groves across Florida in a proactive attempt to prevent the spread of citrus canker, a disease significantly impacting Florida’s citrus industry, but many homeowners questioned the science used as justification for the backyard tree eradication program.
Over 55,000 Broward property owners are due to receive $11 million in compensation from the Florida Department of Agriculture for the healthy trees destroyed by government chainsaws. After initially claiming owners deserved no compensation, the State eventually extended token payments and gift certificates to allow citizens to purchase small replacement trees, which was not viewed by owners who had lost older and larger mature trees of much greater value as fair or adequate compensation.
Update In California Water Rights Battle
A new twist has occurred in the fight of California farmers for the water necessary to grow their crops. CPR and other news outlets have previously featured the outrageous water restrictions which have severely impacted one of our country’s most productive agriculture regions for two years. Water cutbacks implemented to protect several species of fish have turned valuable cropland into wasteland and caused local unemployment rates to skyrocket.
The same judge who deemed the river dam and pump restrictions too lenient two years ago has now ruled current conditions are too strict. San Joaquin Valley farmers and urban water agencies argued that government regulators failed to analyze the consequences of the new restrictions under the National Environmental Policy Act. They also argued the restrictions put in place were not based on good science.
U.S. District Judge Oliver Wanger recently issued a ruling which will ease the restrictions and free up water vital to bringing crops into production. Wanger indicated the environmentalists and government agencies could appeal the ruling and get the restrictions reinstated if proof is found the renewed pumping is harming the endangered fish.
Michael Powell v. Home Depot: A Modern Day David v. Goliath
Justice has been served to the hardware giant Home Depot by Michael Powell, a private contractor and inventor, in a case of intellectual property rights theft.
In 2004, Powell helped the home-improvement corporation address the issue of saw injuries plaguing Home Depot employees as they cut lumber on site for customers. Home Depot was paying about $1 million annually in workers compensation related to saw injuries. If the problem was not solved, the hardware giant may have had to discontinue this convenient service.
Powell came up with a simple but ingenious safety feature to protect the employees from injury. Home Depot loved his design and tested the product in eight stores. However, Home Depot refused to pay Powell’s $2,000 dollars per machine price. Instead, they offered him $1,200 per machine. When Powell refused, Home Depot made exact measurements of Powell’s saw safeguards and had them reproduced, leaving Powell out in the cold. When questioned about this blatant intellectual property rights theft, a Home Depot executive nastily remarked, “(Expletive) Michael Powell…Let him sue us.”
Powell filed suit and after a six-year legal battle, he won!
U.S. District Judge Daniel Hurley stated, “Home Depot knew exactly what it was doing. They simply pushed Mr. Powell away and they did it totally and completely for their own economic benefit.”
According to news reports, workers compensation payments for injuries before the “Safe Hands” product was put into place were $1 million per year; after safeguards were added costs dropped to $7,000 per year.
Michael Powell was awarded a $25 million dollar settlement in this intellectual property rights case, a much steeper cost to Home Depot than the original $4 million dollar requested from Powell for the product. Home Depot’s spokesperson said that the company disagreed with the ruling and is considering an appeal.
The case is a noteworthy victory for intellectual property rights as Powell did not patent his device until 2006. Powell’s attorney did have a “trump card” – a photo of a Home Depot executive with measuring tape, pencil and pad in hand looking at the machines Powell had built.
** Special thanks to CPR Summer Intern, Jourdan Viele (University of Florida, Class of 2012) for her assistance with this update! **
JOIN CPR TODAY! You are cordially invited to join a growing number of concerned land owners who are uniting as members of the Coalition for Property Rights. To join CPR or support our work with a special one-time gift, please visit www.proprights.com/contribute/ today! A printable form is also available via this link and can be mailed to CPR, 2878 S. Osceola Avenue, Orlando, FL 32806. For more information about CPR’s work or membership options, please call 407-481-2289.
Reader responses always welcomed! carolsaviak@aol.com
Carol Saviak Executive Director Coalition for Property Rights 2878 S. Osceola Avenue Orlando, FL 32806 407-481-2289 407-481-0834 fax http://www.proprights.com/News Release: Gaylord Merlin Receives AV Rating
TAMPA, FL –- Cary Gaylord, Kim Merlin, Lorena Ludovici, Andrew Diaz, and Paul Bain of the law firm Gaylord Merlin Ludovici Diaz & Bain have been recognized as AV Preeminent Rated Lawyers by LexisNexis Martindale-Hubbell for 2010. The AV Peer Review Ratings, which identifies lawyers with the highest rating in legal ability and ethical standards, is a reflection of expertise, experience, integrity and overall professional excellence.
EARLY AM ACTION ALERT – RESPONSE REQUESTED
This morning, CPR is asking all of its members and readers to join us in supporting Lake County property owners by sending one response email out this morning. CPR would like to thank one of our partnership organizations (Right Side of the Lake) for bringing us the following alert:
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WIPING OUT FARM FAMILIES IN SOUTH LAKE
Commissioners’ Decision on Tuesday Could Destroy Lake’s Last Family Farms”
On Tuesday, May 18, 2010, during their regular meeting, The Lake County Board of County Commissioners (BOCC) will make a decision on the proposed Rural Protection Area Designation in the New Horizon 2030 Comprehensive Plan. Under the new Comprehensive Plan, the extreme environmentalists on the Local Planning Agency (LPA) seek to put a “growth fire line” between Orange County and Clermont. They have concocted this bogus scheme of designating more than 10,000 acres as a Rural Protection Area. Under this designation, landowners in that area whose property was designated as agriculture, commercial, or other zonings, would automatically be thrown into this new classification, which is very restrictive.
The driving force behind this issue is Lake County Commissioner, Elaine Renick, who is orchestrating this push on behalf of environmental special interest groups. Clermont city officials have figured out that this designation would destroy any hopes of commercial and job expansion because the city would be economically land-locked and are openly opposing the overlay of land near to the city.
At last week’s BOCC public workshop on the Comprehensive Plan, landowners came forward from the affected area, who will personally be the ones to pay an extremely high price if this expanded overlay designation is approved. These landowners are local families who have worked all their lives, whose future economic opportunities will be wiped out because an extreme environmental movement that has wrested control of Lake County’s government and future growth plans.
If this Rural Protection Area designation is put into place, the value of land in that South Lake area will plummet and the landowners’ ability to borrow money from banks may be destroyed – that’s how this designation will destroy our local farming community. Local farms rely on the appraised value of their lands to keep credit lines open. In essence, Lake County government will be inviting the end to the family farm in the county. Below are the real stories of these families:
Clonts Groves: Rex Clonts has operated an active citrus grove in Lake County ever since his company, Clonts Groves, acquired 550 acres in 1992. Even though the property has over a mile of frontage on US 27 south of Clermont, and is located in two utility districts, the county proposes to reduce housing density allotment from 4 units per acre to 1 unit per 5 acres by placing the property in a Rural Protection Area on its new Future Land Use Map. This change will have a severely negative impact on the market value of the property and is no more than organized theft by Lake County government.
Long & Scott Farms: The Long and Scott families have been active in agriculture and stewards of the land they occupy in Lake County since the early 1960′s. They are famous for their produce, sweet corn, cucumbers, red and green cabbage, and watermelons, which are sold both locally and on a national level. Lake County proposes to limit their property rights by placing 700 acres in a Rural Protection Area. This designation would result in a loss of land value between $40,000 and $100,000 per acre, as well as the loss of property rights, rights which are guaranteed by the United States Constitution. Is it fair for these families to lose millions of dollars and possibly their livelihood because Commissioner Elaine Renick and her environmental extremists on the LPA seek to impose their will? This is a classic example of a backdoor attempt in socialism in Lake County.
Long & Scott Farms is a small to medium farm, and the last produce farm of its size in Central Florida. The farm is already at a disadvantage because of this fact and has experienced a loss of truck traffic since the Lake Apopka farm buy outs of the 1990′s. The State of Florida seems determined to keep imposing new and continuing unnecessary – and unwarranted – cost-prohibitive regulations that make it almost impossible to keep feeding people with produce grown in this country. Won’t anyone stand up for them?
Loma Linda: Jerry Cloud of the Loma Linda Corporation has been a property owner in Lake County for over 60 years. Loma Linda operates pasture lands and citrus groves totaling nearly 500 acres near the intersection of US 27 and the Florida Turnpike. The County’s new Future Land Use Map will place the property in a Rural Protection Area, reducing the value of the property by up to half. Despite the property’s proximity to the two largest roadways in the county, and the fact that it is surrounded on two sides by the City of Groveland and is in the city’s utility district, the county still feels their land needs to be in the protected area. The city currently provides water and sewer services to the farm’s surrounding properties. In our view, this property is proof positive that the Rural Protection Area designation is a farce.
These are not the only property owners being harmed by the proposed designation; there are many more with much smaller parcels. If this designation passes and stands, property values could be reduced by as much as 75%. Families will be wiped out and this community permanently harmed because Lake County will take real wealth out of the area. That is the reason many refer to this designation as the “Rural Poverty Area.” Please stand up for the farmers and landowners in South Lake, and contact your County Commissioner to abolish the Rural Protection Area.
It is very important that you forward this newsletter to everyone on your list and rally for those families who are about to have Lake County government basically seize their land by destroying their land values. Call and email the Lake County Commissioners now to stop this takeover. If you are able to attend Tuesday’s meeting, do it for the small family farmers that are left in Lake County.
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CPR strongly encourages its members and readers to send a quick email message this morning to the members of the Lake County Commission urging them to either remove the Rural Protection Area overlay entirely or to remove the property of all owners who have requested to be excluded from the RPA overlay.
- County Chairman Welton Cadwell WCadwell@lakecountyfl.gov
- Commissioner Jimmy Conner jconner@lakecountyfl.gov
- Commissioner Jennifer Hill JHill@lakecountyfl.gov
- Commissioner Elaine Renick ERenick@lakecountyfl.gov
- Commissioner Linda Stewart Lstewart@lakecountyfl.gov
(WCadwell@lakecountyfl.gov, jconner@lakecountyfl.gov, JHill@lakecountyfl.gov, ERenick@lakecountyfl.gov, Lstewart@lakecountyfl.gov)
Thank you for your help in taking a stand for liberty and helping these property owners fight this unnecessary restriction on their property rights. During a local, state and national recession where we are seeing double-digit unemployment rates, the decision to overlay an additional layer of regulation over any piece of economically viable land is simply unconscionable. But…if this can happen in Lake County, it could happen to you…Take a stand this morning – by sending a single email in support of property rights.
Carol Saviak Executive Director Coalition for Property Rights 2878 S. Osceola Avenue Orlando, FL 32806 http://www.proprights.com/Pages
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