----- Original Message -----
Sent: Friday, November 07, 2003 7:55
PM
Subject: [Sndbox] Cities use legal clout
to grab land
Cities use legal clout to grab
land
By Ludmilla Lelis | Sentinel Staff Writer
Posted November 7,
2003
|
DAYTONA BEACH -- Dino Paspalakis and James L. Mathas are fiercely
proud of the arcades and amusement centers that their families have owned for
decades on the World's Most Famous Beach.
Though tourists still flock
to the businesses, the Boardwalk they have grown to love will soon disappear.
Daytona Beach has taken the first steps toward forcing Paspalakis and Mathas
to sell to make way for another business -- all in the name of progress and
the public good. And the two arcade operators are not happy about
it.
It's a complaint echoed nationwide, according to the
Washington-based Institute for Justice, which released a report earlier this
year that found more than 10,000 properties nationwide had been condemned or
threatened with condemnation on behalf of a private party during the past five
years. The institute's report is the first attempt to examine this relatively
new trend in the use of eminent domain.
In Connecticut, four elderly
siblings have been evicted from their home for an industrial park. In Texas,
10 homes were condemned for a shopping center and parking lot. In California,
land for a Christian community center was condemned for a Costco. A historic
Ohio neighborhood faces condemnation because its homes don't have modern
amenities such as two-car garages or central air
conditioning.
"Government has become more and more brazen about takings
which benefit private businesses," said Dana Berliner, a senior attorney with
the Washington-based institute. "Originally eminent domain was used to
redevelop the worst areas that you have, your slums, but now, it is used to
take the most desirable areas and give it to a more desirable
development."
In the case of the Daytona Beach Boardwalk, city
officials say Joyland Amusement Center and Midway Fun Center are blighted.
Instead, the city says, it would better off with a new $115 million Boardwalk,
time shares and an amusement pier promised by a California
developer.
Paspalakis and Mathas maintain that condemning their
businesses to benefit someone else would be an abuse of the city's power of
eminent domain and trample on their constitutional rights.
But Daytona
Beach officials are willing to exercise government power to see a new
Boardwalk built. A June letter from the city manager to the developer listed
among Daytona Beach's commitments to the project "the pledge to use power of
eminent domain, which for your purposes, is priceless."
Of the 17
properties needed for the Boardwalk project, Daytona Beach City Attorney Bob
Brown said eminent domain could be necessary on four properties, including
Mathas' Fun Fair and Capt. Darrell's Oyster Bar and Restaurant.
"No one
wants to employ the use of eminent domain. I don't want to do it. Honest, I
don't," Mayor-elect Yvonne Scarlett-Golden said Wednesday. "The issue here is
development of the Boardwalk area."
Unless a deal between Paspalakis
and the developer can be reached, he and other Boardwalk property owners would
face condemnation. The City Commission voted 5-2 late Wednesday to hire an
attorney to acquire the businesses by eminent domain, but commissioners
emphasized that they hoped further negotiations would avoid that.
The
U.S. Constitution guarantees the right to own private property while allowing
government to seize private land with compensation and if the land is needed
for a public use. Historically, that has allowed condemnations for highways,
schools, hospitals and utilities.
During the 1950s and '60s, local
governments used eminent domain to get rid of their slums, said Mark Fenster,
assistant professor at the University of Florida's law school. Cities and
counties condemned dilapidated neighborhoods and rebuilt them, often with the
help of a developer. In 1954, the U.S. Supreme Court ruled that using eminent
domain to clear out slums served a public purpose.
"Eminent domain was
seen as a particularly good tool," Fenster said.
These
urban-redevelopment projects continued for decades, expanding from slums to
blighted neighborhoods, said Jim Burling, principal attorney for the Pacific
Legal Foundation, a Sacramento, Calif., organization.
"After a while,
you begin to run out of slums," Burling said. "And to do redevelopment in
slums, that project may fail, so cities began defining blight very
broadly."
Florida's Community Redevelopment Act defines a blighted area
to include one with a higher crime rate, stagnant property values or a high
number of building-code violations. That's where eminent domain is being
abused, Burling and Berliner said. With a broad definition of blight, it
became easier for cities to declare blight where developers want to build.
Land can be acquired through eminent domain that might not otherwise be
available, the property-rights attorneys said.
"There's so much money
in redevelopment that if people's dreams and homes get in the way, that's too
bad," Burling said. "The government will argue, 'We need more taxable value.
We need more aesthetic value.' "
In Daytona Beach, officials say
redevelopment in the Boardwalk's neighborhood has been needed for
years.
More than 20 years ago, Daytona Beach declared Main Street, the
Boardwalk and the surrounding homes as blighted. Decades after the tourism
heyday of the 1920s to '40s, that 400-acre beachfront neighborhood had vacant
buildings, marginal businesses and deteriorating homes, according to the 1981
study.
Daytona Beach attorney Scott Cichon used the details of the
Boardwalk's woes to help the city condemn two properties in that area for the
310-room expansion of the Adam's Mark Resort.
"In the 1970s, the early
'80s, it was terrible," Cichon said. "It was a real eyesore."
He
successfully argued in court in 1999 that the city could seize two beachfront
parcels, including a small family-run motel, for the hotel expansion. At the
same time, construction was ready to begin next door for the new Ocean Walk
Village, a $250 million revitalization project with a shopping and restaurant
complex, a water park, a movie theater and a pair of time-share
towers.
After the judge approved the taking, and the property owners
wanted to appeal, the city eventually settled for $1.375 million.
All
that redevelopment has started to pay off, Cichon said, with the new
businesses making the area more upscale, less honky-tonk and much safer than
it used to be.
"What we have is such a huge plus, based on what we
had," he said. "You can walk in that area and feel safe."
Meanwhile,
Boardwalk merchants Paspalakis and Mathas say that their businesses aren't
blighted and that the blight definition is being used so that the city's
chosen developer can use eminent domain to get the properties. How else can
you get Florida beachfront property for cheap? Paspalakis said.
"It is
to their financial benefit to use legal means to steal my property from me,"
Paspalakis said. "Eminent-domain cases amount to legal theft."
Mathas,
who lives in Jacksonville and leases the Midway Fun Center to Paspalakis and
his wife's family, surveyed the Boardwalk on a recent trip to Daytona Beach
and pointed out the $700,000 spent in upgrades, new amusements and video
games.
"This business is thriving," he said.
Both men grew up on
the Boardwalk and worked at their family's businesses, spending their weekends
and summer vacations counting change, cleaning or serving soda. Paspalakis and
his sister Lisa Psaros inherited Joyland from their father, Steno, and
Paspalakis wants to pass that business, a family business for 35 years, on to
his own children one day.
Outgoing Mayor Baron H. "Bud" Asher brokered
a deal to relocate Joyland in the new Boardwalk, but the negotiations fell
through when it was discovered the land swap wouldn't be legal.
On
Wednesday, attorneys for Paspalakis and the developer said they will continue
to negotiate, but Paspalakis said he would only agree to relocation and would
oppose anything else.
"My business is not for sale," he
said.
Nationwide, a few courts have rejected eminent-domain claims,
ruling in a handful of cases that the property owner's rights can't be
trampled over to favor a business, Burling and Berliner said. For example, an
Arizona brake shop won an appellate ruling last month that prevented
condemnation of the shop for city redevelopment.
In Florida, property
owners haven't enjoyed such victories, said Andrew Brigham, a Jacksonville
attorney who represents a different Daytona Beach neighborhood fighting a
blight designation.
Rather than interfere with a city's redevelopment
plans in the handful of eminent-domain and blight cases, courts have opted to
approve the condemnation, he said.
To property-rights advocates such as
Doug Doudney, the idea that a home or business could be condemned and handed
over to a private business is simply wrong.
"It's wrong because this is
America," said Doudney, president of the Coalition for Property Rights, a
Central Florida group that advocates on several property-rights issues. "It's
great for a city to want a commercial developer to move in, but it's up to
that developer to find their spot. To take a person's home? That's over the
line."
Ludmilla Lelis can be reached at [EMAIL PROTECTED]
or 386-253-0964.
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