Statute and jurisprudence

Firm of 1L Associatesto:                 community of forgotten city

from:           your name here

subject:    City of niceville and plans of bob builder

date:           date of submission

There exists sufficient basis under the Community Redevelopment Act of 1969 (hereinafter “CRA”) for Niceville to exercise its power of eminent domain in taking Forgotten City; that Bob Builder is a private person and that the manner of payment of just compensation does not strictly follow procedural standards does not take away from the public purpose behind the taking.

STATUTE and JURISPRUDENCE

The governing law for the taking of slum or blighted areas for public purposes is the Community Redevelopment Act of 1969.  The main necessity of the law is said to be that  “there exist in counties and municipalities of the state slum and blighted areas which constitute a serious and growing menace, injurious to the public health, safety, morals, and welfare of the residents of the state; that the existence of such areas … constitutes an economic and social liability imposing onerous burdens which decrease the tax base and reduce tax revenues, substantially impairs or arrests sound growth … aggravates traffic problems, and substantially hampers the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of slums and blight is a matter of state policy and state concern….”[1]  It says that counties and municipalities cannot take slum or blighted areas through eminent domain for purposes of preventing or eliminating them.[2] The statute however provides that the power of eminent domain may be exercised when the slum or blighted area is part of a community redevelopment area[3] as defined by the CRA.  Once the area is within a community redevelopment area, the county or municipality is given specific powers, including:

(a)                                    To make and execute contracts and other instruments necessary or convenient to the exercise of its powers;

(b)                       To disseminate slum clearance and community redevelopment information;

(c)                                     To undertake and carry out community redevelopment and related activities within the community redevelopment area;

(d)                       To provide, or to arrange or contract for, the furnishing or repair by any person or agency, public or private, of services, privileges, works, streets, roads, public utilities, or other facilities for or in connection with a community redevelopment x x x;

(e)                                   X X X.[4]

The CRA then defines a slum area as “having physical or economic conditions conducive to disease, infant mortality, juvenile delinquency, poverty, or crime because there is a predominance of buildings or improvements, whether residential or nonresidential, which are impaired by reason of dilapidation, deterioration, age, or obsolescence.”[5]  An additional requirement before an area is declared a slum area is that it must exhibit one or more of the following factors: “(a) Inadequate provision for ventilation, light, air, sanitation, or open spaces; (b) High density of population, compared to the population density of adjacent areas within the county or municipality; and overcrowding, as indicated by government-maintained statistics or other studies and the requirements of the Florida Building Code; or (c) The existence of conditions that endanger life or property by fire or other causes.”[6]

The CRA also defines a blighted area where “there are a substantial number of deteriorated, or deteriorating structures, in which conditions, as indicated by government-maintained statistics or other studies, are leading to economic distress or endanger life or property.”[7]  The additional requirement is the presence of two or more of the following factors:

(a) Predominance of defective or inadequate street layout, parking facilities, roadways, bridges, or public transportation facilities;(b) Aggregate assessed values of real property in the area for ad valorem tax purposes have failed to show any appreciable increase over the 5 years prior to the finding of such conditions;(c) Faulty lot layout in relation to size, adequacy, accessibility, or usefulness;(d) Unsanitary or unsafe conditions;(e) Deterioration of site or other improvements;(f) Inadequate and outdated building density patterns;(g) Falling lease rates per square foot of office, commercial, or industrial space compared to the remainder of the county or municipality;(h) Tax or special assessment delinquency exceeding the fair value of the land;(i) Residential and commercial vacancy rates higher in the area than in the remainder of the county or municipality;(j) Incidence of crime in the area higher than in the remainder of the county or municipality;(k) Fire and emergency medical service calls to the area proportionately higher than in the remainder of the county or municipality;(l) A greater number of violations of the Florida Building Code in the area than the number of violations recorded in the remainder of the county or municipality;(m) Diversity of ownership or defective or unusual conditions of title which prevent the free alienability of land within the deteriorated or hazardous area; or(n) Governmentally owned property with adverse environmental conditions caused by a public or private entity.[8]

The CRA makes a special mention that in case there is only one of the factors present, the area may still be declared as a blighted area as long as “and all taxing authorities subject to s. 163.387(2)(a) agree, either by interlocal agreement or agreements with the agency or by resolution, that the area is blighted. Such agreement or resolution shall only determine that the area is blighted.”[9]

In Rukab v. City of Jacksonville Beach,[10] the court reiterated the number one requirement in exercising the power of eminent domain.

“It is this public nature of the need and necessity involved that constitutes the justification for the taking of private property, and without which 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.”[11]

It was in the same case that the Court provided for the remedy of property owners in the event that they feel aggrieved by the taking of their property or when they want to question the propriety of the taking.  In this case of Rukab,[12] the city argued that

[i]t would be destructive of Chapter 163`s purposes if a land owner was allowed to challenge in an eminent domain proceeding the factual basis for a local government`s prior decision to engage in redevelopment activities by challenging the local government`s finding that blight existed and that redevelopment activities were warranted.[13]

However, the Court struck down this argument and declared that “purchasers of property subject to state regulation were not precluded from raising a claim of a regulatory taking even if they were aware of the regulation at the time they purchased the property.”[14]

Application

In the case problem provided, Forgotten City was declared as a blighted area by the City Council.  This is because the city has “significantly older homes, low income homes, rental property, a governmental housing complex, two elementary schools, a community center, bus depot, neighborhood stores, and old warehouse buildings.”  Aside from that, the city is living in poverty and illegal drugs and prostitution are rampant.

Forgotten City, then, can be classified as a slum area.  The old and low income properties are conducive to crime such as illegal drugs and prostitution, especially around old warehouses.  Furthermore, it cannot be denied that the economic conditions are that showing poverty and the population of 7000 is really too big for a city that is merely 20 blocks big.

The City can also be said to be a blighted city.  The old structures are definitely deteriorating and with the proper studies, it can surely be proven that two or more of the factors required under the definition of a blighted area are present.

To exercise the power of eminent domain in order to redevelop a city that is declared to be blighted or a slum is definitely a taking for a public purpose.  It will be in the interest of public health, safety and morals that Forgotten City is redeveloped so as to alleviate poverty eliminate the illegal drugs and prostitution around old warehouses and to restructure the old buildings located within.

It is of no moment that Bob Builder will be the redeveloper in this case.  “The Act specifically promotes the involvement of private enterprise.”[15] The Fulmore[16] case explained that “Any county or municipality, to the greatest extent it determines to be feasible in carrying out the provisions of this part, shall afford maximum opportunity, consistent with the sound needs of the county or municipality as a whole, to the rehabilitation or redevelopment of the community redevelopment area by private enterprise.”[17]  Furthermore, “the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. ‘[I]t is only the taking`s purpose, and not its mechanics,’ we explained, that matters in determining public use).”[18]

Conclusion

At the end of the day, the public purpose of the taking of the properties in Forgotten City outweighs the personal and private interests of the property owners.   “Authorizing redevelopment projects involving expenditure of public funds, sale of public bonds, the use of eminent domain for acquisition and clearance, and substantial private and commercial uses after redevelopment, is in furtherance of a public purpose and is constitutional.”[19]  The vital part is that reasonable necessity must be shown and it is clearly shown from the facts of the case that there is a need to redevelop Forgotten City.  The current situation in Forgotten City proves that there is sufficient basis for it to be declared a blighted area and therefore be under a redevelopment plan, as decided by the City Council.

[1] findings and declaration of necessity provision of the Community Redevelopment Act of 1969 cited in Fulmore v. Charlotte County, 928 So. 2d 1281, (2006).[2] §163.370(1).[3] Id.[4] §163.370(2)¶1a-¶e.[5] §163.340(7).[6] §163.340(7)¶a-¶c.[7] §163.340(8).[8] §163.340(8)¶a-¶n.[9] §163.340(8), 2nd paragraph.[10] 811 So. 2d 727, (2002).[11] Id.[12] Id.[13] Id.[14] Id citing Palazzolo v. Rhode Island, 533 U.S. 606 (2001).[15] §163.355 cited in Fulmore v. Charlotte County, 928 So. 2d 1281, (2006).[16] 928 So. 2d 1281, (2006).[17] Id.,  citing § 163.345.[18] Id., citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).[19] Id. Citing State v. Miami Beach Redevelopment Agency, 392 So.2d 875, 891 (Fla.1981).