Profitable Cause

Profitable Cause

Property-rights advocate Bill Moore, managing partner of Brigham Moore LLP, plans to organize a powwow of legislators to clear up Florida's eminent domain law, even if it means codifying redevelopment as a 'public use.'

By Sean Roth

Real Estate Editor

To most people, eminent domain and property rights law is as interesting as the prospect of selling white paint for a living, but for the employees at Brigham Moore LLP, it's an important cause worth fighting for. Managing partner Bill Moore and his cadre see the preservation of property rights as a tenet central to our country's success.

They are fighting for the little guy.

"Everyone's home and personal possessions are very dear to them," Moore says. "They can be seized by government. That is a very big deal, and it's legal - as long as the process is followed."

The property rights issue has exploded over the past two decades, he says, adding, "There are tremendous takings all over the country."

Even the decor of the Sarasota office of Brigham Moore - where Moore works - reflects the firm's mission. The office's decidedly Native American style is a not-so-subtle nod to that ethnic group's forced removal from their land to reservations. There are pictures of Native Americans next to the text of the Bill of Rights, a statue of a cowboy and Indian brave locked in mortal battle and a sticker posted next to a work station, which states: 'Sure you can trust the government just ask the Indians.'

Moore, who says he's of Cherokee descent, cites the Trail of Tears as part of his motivation for fighting for the protection of property rights.

"Back in the 1820s, the Cherokees in North Carolina were probably the most Europeanized of any of the Indians. They bought into the dream," Moore says. "They sent their kids to school. They spoke English. They had them dressed like Europeans. They were farmers. They wanted to be part of the democracy. The problem was that right about that time, gold was discovered in that area.

"All of a suddenly a group of Americanized Europeans decided that the Indians really shouldn't be on that land. Wouldn't it be better for whites to take over because they could really care for that gold a little better? ... After all the Indians would just leave it in the ground. So the whites started seizing the land.

"What did the Indians do? They didn't go on the warpath; they went to court. The case went up to the Supreme Court. And the United States Supreme Court ruled in favor of the Indians and said that their land was to be protected. That unless they had sold it in a treaty or in some other way had given it away, it couldn't just be seized. To which Andrew Jackson, the current president at the time, said: 'The Supreme Court has made its law, now let it enforce it.'

"He sent his soldiers in to remove the Indians. They marched them 1,000 miles or so to Oklahoma on what is now called the Trail of Tears. A lot of people died. That is a terrible blight on American history. That is a great example of how the government's power went wrong. There wasn't enough willpower back then to enforce the Constitution. This is the type of history that gives you the passion to get into this type of law."

Of course, things have improved greatly since 1820s, Moore says, but the struggle of property owners against government taking continues.

Moore and his Miami-based firm specialize in an area of the law that is growing in prominence on the state and national levels. Stories about eminent domain condemnation have appeared in the biggest of the national venues: "60 Minutes," The New York Times, The Wall Street Journal and The National Law Journal.

In April, when state Senator Mike Bennett, R-Bradenton, proposed a bill that would have codified economic revitalization as a public use for condemnation, his office, and other Senate offices, were besieged by angry phone callers. Bennett and his co-sponsor bowed to public pressure and significantly amended the bill.

Moore is hopeful the time is now right to revise Florida's existing laws. He has contacted legislators to try to organize a group willing to examine the topic.

"We have made some initial inroads," Moore says. "Rather than yelling at each other after the legislation has been proposed, we thought why not sit down and let the legislators know the issues from the landowner's perspective? We want to hear the issues from government's perspective, and maybe we can come together to create some legislation that makes sense. The current legislation for redevelopment doesn't make sense."

Moore points to ambiguous language in the statute, which allows a deteriorated roadway - that is government's responsibility to maintain - to be used as part of a declaration of blight.

Moore's goal is to make the requirements for blight under the eminent domain statues more quantifiable.

"We need to do some ground work on that," Moore says. "We are hoping to do it in the next month or two. And again, if we do it in a more collegial workshop setting -instead of butting heads after somebody has already made up their minds -we think we will get a lot more accomplished. I will go wherever anybody wants it. We need to find the legislators that are interested in it. We have heard indirectly that they are willing to meet with us - with the group. They want to hear from the other side. It's up to us to get that work done."

Moore really has two goals for the meeting.

"First I would show the abuses that are happening the way the statute is written now." he says. "It's a dangerous statute that is poorly drafted. I think we can do that pretty efficiently. Secondly, I would like to suggest alternatives that meet the statutory intent without giving that open-end power to government. The legislative intent of ending blight is a good one."

What if that meeting codifies economic redevelopment as an acceptable reason for an eminent domain taking?

"I think the Legislature has to make a decision on that," he says. "Let's not keep that vague either. If the legislative decision is that is it's a public purpose just to seize land for development they need to say so and say it clearly. It also needs to be tested before the Supreme Court to see if it is constitutional. Just a couple days ago the Michigan Supreme Court reversed 15 years of legal history saying that the earlier decision in favor or redevelopment as a reason for condemnation was contrary to the Constitution."

The law firm of Brigham Moore stems from the Brigham family's property rights legal practice, which started with E.F.P. Brigham in 1950. Brigham's son, Toby Prince Brigham, started his own practice to exclusively represent property owners facing condemnation in the state - in 1972.

In 1978, Toby Prince Brigham brought Moore, a former prosecutor and Florida Department of Transportation land attorney, into the practice as a partner. Today, the firm, which has 60 employees, including about 17 lawyers, has five offices in the state.

The firm has its competitors - most of whom formerly worked with the firm: Paul Blucher in Sarasota; Sachs & Werdine in Tampa; Gaylord, Merlin, Ludovici, Diaz & Bain in Boca Grande; Ulmer, Hicks & Schreiber PA of Coral Gables; and Wilson, Garber & Small PA in Orlando.

Brigham Moore has found its share of clients in the past quarter of a century. Notable clients include the largest corporate property owners in the state: the St. Joe Cos., Lennar Homes and McDonald's, among others. However, most clients are individuals or families.

Locally, Brigham Moore is involved in most of the high-profile eminent domain disputes. The firm unsuccessfully sued Charlotte County to prevent the property taking in the Murdock Village case (See GCBR, Oct. 10-16, 2003). Brigham Moore is involved in litigation in the Bonita Springs area of Lee County with the South Florida Water Management District over a taking of about 4,670 acres (See GCBR, Jan 30-Feb. 5).

In eminent domain cases, attorneys for property owners are paid by the government per Florida law. In the mid-'90s, eminent domain attorney fees were changed from a set hourly rate to a benefit system. The government always pays the costs of bringing a case, other than attorney fees, but if the case fails to recover more than the government's initial written offer, then attorney fees are not covered. If the attorney improves the offered amount, the attorney recovers a percentage of the benefit as his fee (33% of any benefit up to $250,000; plus 25% of any portion of the benefit between $250,000 and $1 million; plus 20% of any portion of the benefit exceeding $1 million). Compensation does not come out of the amount paid to the property owner.

As Brigham Moore's history shows, there is money to be made. In the 1990s, Brigham represented St. Joe Paper Co., whose Topsail Hill beachfront property, he argued, had been illegally downzoned to reduce its sale price to Walton County for preservation. After rejecting an initial $25 million offer, the state eventually settled in 1996 for $84 million. The judge awarded the firm $12 million in attorney fees.

That same year in Sarasota, Moore successfully represented Atlantic Utilities of Sarasota in the county's eminent domain taking of the utility.

The county offered $7.4 million for the utility, but a jury later awarded the utility $17.5 million. Brigham Moore recovered about $1.9 million in fees.

Still, Moore says the pay is less than in other areas of the law.

"(Our success) has a lot to do with focusing on one area of the law," he says. "There are lots of the areas of the law that I don't know about, such as family law or contract. Property rights is what I know."

Even with Moore's passion for eminent domain and property law, it was only through a string of coincidences that he wound up with the firm. After graduating with a law degree from Florida State University in 1972, Moore became a prosecutor in the 12th Circuit State Attorney's Office, covering Sarasota, Manatee and Desoto counties.

"I hated criminal law," Moore says. "I was just miserable. It was soul sapping to see everyday a constant parade of victims and criminals. I did it for two years, becoming chief of the felony division. Then I started looking around. I was looking for a job where I could go to trial, because I loved that."

Moore saw a small help-wanted ad posted on the bulletin board at the FSU law school.

"They were looking for people with trial experience," Moore says. "The job was as a condemnation attorney for DOT. I wasn't exactly sure what that was ... but it sounded good to me. It wasn't criminal law."

So Moore moved to Tallahassee. From 1974 to 1978, he worked for DOT, eventually becoming chief condemnation attorney for the state.

"I got a lot of great trial experience," Moore says. "I did virtually every facet of condemnation. When I first got into this there were very few people practicing in this area of the law. Toby Brigham was one of them. At the time there was a great wellspring of bright, young, aggressive lawyers, who worked for the DOT, who wanted to change the way things were done. They actually did make improvements throughout Florida even though they were government lawyers. That was a lot of fun. It was also really enjoyable because there we were battling against the very finest lawyers on the other side. We could test ourselves against people, who had been doing this for 15 to 20 years."

But Moore had reached the top at DOT.

"After four years, there really wasn't any other position in the DOT other than general counsel and the general counsel didn't do any trial work," Moore says. "I loved the trial work so I kind of hit a glass ceiling."

When he was offered a position at Brigham, Moore took it, even though it meant representing the other side. He opened the Sarasota office.

"It was a difficult transition," Moore says. "The mindset of government lawyers, basically you are sure your position is right. Almost all of the landowners want too much money. You are there to preserve the taxpayer's fund. That is the mindset. The mindset on other side is that the government lawyers will lowball people ... try to take land for less than it's worth. Try to use the power of government to infringe on the rights of individuals. Those are two colliding mindsets. I would say the challenge for me was to take the most accurate perceptions for both sides to present a balanced view that would protect the landowners' property rights while not doing violence to our government's progress."

Murdock Village

Description: Charlotte County is attempting to buy or condemn through eminent domain 1,100-acres in the West Murdock section of Port Charlotte for redevelopment. It has declared the area blighted. Once the property is consolidated, the county plans to sell it to a developer for construction of a large-scale mixed-used development.

Current situation: Brigham Moore is appealing the order of taking. "There are three fundament basics for the appeal," Moore says. "One is the statute is defective on its face. Two, is that even if it were not, that the way the statute is applied in the Murdock Village case, it is unconstitutional. Three, that the basic predicates that the government has to meet before they can condemn have not been met. They failed to adequately study the potential for alternative sites. They didn't do that and have admitted they didn't do that. They didn't do an adequate study of costs. They are also supposed to do an environmental study to show the environmental requirements there. About 20% to 25% of the land is scrub-jay habitat. They haven't submitted application one to the government or to the state for any kind of mitigation plan to allow them to build there. When I mentioned that as a necessary predicate to the judge, he said he thought the scrub jays could take care of themselves.

"There is also a statutory predicate that requires that if government wants to acquire open land then it must be for affordable housing purposes. They must be able to show that a certain proportion will be used to make homes for poor or lower middle class folks. The typical developer doesn't want to do that; so (the county) just ignored that."

Implications: Governments across the nation continue to use their power of condemnation to collect property for sale to private developers as a means of redevelopment.

Exaction case in Manatee County

Description: A commercial business owner - who Moore declined to identify - wants to develop her property, which is occupied by an existing building and parking lot, located along a major thoroughfare. That person also owns property next door. Manatee County is attempting to require the property owner to dedicate -without reimbursement - 34 feet beside the road, which cuts a swath through the property eliminating the parking. The property owner ends up with the inability to develop on the property because the land the property owner would give up in the dedication is actually more than half the entire parcel. The county claims the dedication is required under its comprehensive plan. Under the current requirements there is no way for the property owner to get a site plan or to develop the property. The county is also not willing to purchase the property.

"What is she going to do? Put a shed out there? That is about the only thing she could do," says Jennifer Bonifield, an attorney with Brigham Moore.

Current situation: "They're going to say, 'You can still put something out there,' " says Moore. "It's not valueless." The firm is negotiating with officials on behalf of the owner.

Implications: "We are seeing now with the broader public projects where government may seek to take your ability to develop a piece of land, but not want to take your land," Moore says. "Where you would still own your property and of course still have to pay tax on it, but not be able to develop it. They are doing this all over the state. Typically the developer will acquiesce because a developer wants to go ahead with a plan, and they think it's too expensive to fight it. So the government more times than not will succeed."

Bradenton Beach

Description: Redevelopment on the island has caused a revival of controlled growth sentiment, especially for several city commission members. "We are involved in at least one case there," Moore says. "It dealt with the ability to use a previously platted piece of property that our client had a permit for and then the city changed its mind and said, 'No, you can't build on that.' This is property that was platted, zoned and that we had a permit for."

Current situation: The property owner, represented by another law firm, was successful in appealing a lower court's denial of a building permit. Brigham Moore accuses the city of inverse condemnation.

Southern Corkscrew Regional Ecosystem Watershed

Description: The South Florida Water Management District plans to take about 4,670 acres in Bonita Springs to restore the property for water retention and community recreation.

Current situation: Brigham Moore represents about 35 parcel owners. "The problem with the southern C.R.E.W. is that a certain portion of the folks that were targeted for acquisitions have not been filed on and may not be required for the project," Moore says. "We are hearing orally that they may not been needed for the taking. Either way there is going to be a significant difference between our value and government's value. (Our estimate is probably going to be) double or triple the government's. I think whatever the motivations, the appraisals are too low and we believe part of the reason is the project's influence over the past six to seven years. This cloud of blight has lowered value ¦

"They are going to say that some of the comparable sales that they used are outside of this area and they are low and they are not affected by the project. And we are going to say, 'You went to the wrong areas. You looked at areas where streets were inadequate or the drainage was inadequate ¦ It's not quite as black and white as you might think, but there is an area of discussion there that a court is going to have to make a decision."