Thursday, June 24, 2010

Redevelopment agency can't seize business, judge rules

The city’s Community Redevelopment Agency was not properly created, and therefore has no authority to condemn or seize property through eminent domain, a judge ruled this month. Broward Circuit Judge John T. Luzzo’s ruling is the result of the CRA’s attempt to take the site of a 40-year-old black-owned business, demolish it, and create affordable housing in its place.

The ruling may open the door for other property owners to challenge the CRA on current, past and future condemnations.

It is unclear how many properties the CRA may have taken without the proper authorization.

“Based upon the proof presented, the city of Pompano Beach Community Redevelopment Agency was never authorized by Broward County as required by statute and therefore has no fundamental authority to pass a resolution to condemn property,” Luzzo wrote in his June 20 ruling.

“As I said after the hearing with Judge Luzzo, a dismissal of an eminent domain action happens once in a blue moon, and this IS the blue moon and, obviously, the happy result of a lot of prayer. Congratulations!” attorney Charles R. Forman wrote to his client in the case, Derriek Phillips.

DerriekPhillips.JPGThe city has 30 days to appeal, Forman wrote in his letter.

“I’m not aware of any such ruling,” City Commissioner E. Pat Larkins said. “I haven’t seen any ruling, and I had no idea they were going after that property. If the judge has ruled that the CRA was not properly formed and they didn’t have the authority, I don't know what the city can do, but I do know it needs to be looked at quick because nobody told me anything.”

The ruling came in response to a legal proceeding in which the CRA had begun the process of condemning West Side Paint and Body at 691 NW 18th Avenue.

The family-owned body repair shop has been in business for more than 40 years and is currently run by Derriek Phillips, son of 80-year-old Ethridge B. Phillips, the shop’ s founder.

The eminent domain process allows a government to buy property without the owner’s permission. A government that wants to acquire private property through this process generally will send a letter to the owner first. The government will offer a price, and threaten to file a condemnation lawsuit if the owner does not agree to sell.

If the owner refuses, the government can take the matter to court, as the Pompano Beach CRA did with the repair shop property.

“They basically told us we had no options and made us an outrageous offer and said take it or leave it because we will take your property anyway,’’ Derriek Phillips said. “Their offer was more than an insult, so we had no choice but to reject it, so they sued us.”

Attorney Mitchell J. Burstein with the Weiss, Serota, Helfman law firm, which specializes in eminent domain, filed the lawsuit seeking to condemn the Phillips’ property after commissioners passed a condemnation resolution in 2006.

The condemnation of a property is one of the steps that is required to seize property via the eminent domain process.

Burnstein could not be reached for comment. He and his law firm are also involved in the controversy over a special zoning exception granted to the Islamic Centers of South Florida. The exception allows the Islamic Centers to build a 29,400-square-foot worship center, daycare and recreation facility in that same general residential area.

Burnstein also sent letters on behalf of the CRA to owners of properties near the proposed mosque, threatening to take those properties for affordable housing, as well.

It is unclear how Luzzo’s ruling will impact those property acquisitions.

Luzzo said in his ruling that Broward County in 1980 delegated community redevelopment powers to the city of Pompano Beach. The county’s resolution authorized the city to create community redevelopment districts, and to condemn property for the districts, the ruling said.

“Broward County did not, however, authorize the City of Pompano Beach to further delegate these powers to a Community Redevelopment Agency,’’ the ruling states.

Phillips said he believes all condemnations by the CRA since its inception via a city ordinance in 1989 are null and void.

Luzzo’s ruling appears to support Phillips’ position.

“This ordinance was based on findings and declarations set forth by the city of Pompano Beach,’’ Luzzo stated in the ruling. “Neither the ordinance, nor resolution contain any reference to any prior Broward County delegations to the city of a right to create a community redevelopment agency.”
Phillips said he hopes the ruling against the CRA will not stop at his family’s property.

“They have operated without authority and I’m just glad we fought and stood up to them, and hopefully this will lead other property owners to do the same,” Phillips said.

EginJones@BrowardTimes.com
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