Eminent Domain
Riviera Beach plaintiffs ask that judge be recused

By: Robert D. Johnston
September 19, 2006

The eminent domain battle over Riviera Beach’s $2.4 billion, 400-acre redevelopment has taken
another twist as plaintiffs in a lawsuit against the city seek to disqualify Palm Beach Circuit Judge Diana Lewis from the case.

Pacific Legal Foundation managing attorney Valerie Fernandez, who represents plaintiffs Jerry and Genie Corie and the Coalition for Property Rights in a suit seeking to block the redevelopment project, insists the judge must recuse herself because her father, Philip Lewis, owns land in the redevelopment area.

Lewis rejected a motion for disqualification Aug. 16, but the foundation filed a petition for writ of prohibition with the 4th District Court of Appeal on Sept. 7 to challenge her decision.

The dispute may delay a hearing on the foundation’s motion for an injunction at the heart of a fight over Riviera Beach’s plan to remake older sections of the oceanfront city north of West Palm Beach.

The city approved the expansive use of eminent domain for private redevelopment in May, a day before Gov. Jeb Bush signed a bill restricting public takings to public purposes.

The city’s approach would be legal under a U.S. Supreme Court decision last year allowing eminent domain for redevelopment.  But the Legislature picked up on the court’s broad hint that state lawmakers could limit eminent domain to public uses, and Bush signed on.

The question of who will hear the case is only one problem for the Riviera Beach City Council, which also acts as the city’s community redevelopment agency.

Multimillionaire Fane Lozman, who lives on a houseboat at a city-owned marina, filed a separate lawsuit in June alleging the city broke the state’s sunshine law as officials hurried to sign an
agreement with master developer Viking Inlet Harbor Properties.

Soon after Lozman sued, the city served him with an eviction notice for walking his 10-pound miniature Dachshund [ed. accent] without a muzzle.

As if the city hadn’t made enough enemies, the Institute for Justice, a Libertarian public interest law firm based in Arlington, Va., announced in June that it would represent other property owners targeted by eminent domain in Riviera Beach. No clients’ names have been disclosed.

“Riviera Beach represents one of the largest and most blatant abuses of eminent domain in the country,” said Dana Berliner, senior attorney at the Institute for Justice. “Its plan to transfer
valuable waterfront property to private developers is illegal and un-American.”

As the conflicts mount over the embattled project, its future becomes increasingly uncertain. CRA executive director Floyd Johnson has come under fire for what City Council officials say
are slow negotiations. The agency hired consultant Bernard Kinsey in May to hopefully close the redevelopment deals quicker and with more benefits for the city.

A pivotal meeting came May 10 when the City Council approved a contract with Viking. That was the night before Bush signed the new eminent domain law curtailing the eminent domain powers of public agencies. Bush said Viking’s contract may be invalid because of a flawed public meeting notice.

The law was a direct response to the Supreme Court decision in Kelo v. New London, allowing the Connecticut city to serve as the middleman for private redevelopment.

Carol Saviak, executive director of the Coalition for Property Rights, lobbied for the new state law and supports Jerry and Genie Corie.

“The city’s actions are shameless and were undertaken with the clear intention to thwart the intent of the Florida Legislature,” Saviak said. “The city was fully aware of the direction and the
intention of the Legislature. … That they would make this last-moment effort is unfathomable.”

Mayor Michael Brown, a real estate attorney who specializes in eminent domain, has a completely different perspective. He considers the lawsuits to be frivolous.

“It doesn’t take long to figure it out,” Brown said. “I’ve listened to the Cories for eight or nine years, and it is evident they are troubled. They are part of a group of people who are only comfortable so long as they can keep other people beneath them.”

Brown is still upset about a visit to the city by Fox News’ “Hannity & Colmes” earlier this year that he claims created hysteria over the potential displacement of up to 6,000 residents. The redevelopment zone covers a wide area, but not all of the property within the zone would be taken.

The mayor also feels betrayed by Bush, who had endorsed the redevelopment and “even bragged about it in commercial mission trips with Enterprise Florida to Argentina, Chile and Brazil,” Brown said.

The mayor is certain the city will prevail in the lawsuits because the Viking agreement is grandfathered by state law in effect at the time.

“The constitution clearly has clauses that protect contracts from being invalidated by the government and legislation,” Brown said.  “Our position is that you cannot retroactively change the law. The tax schedules for the next 30 years are based on these projects.  Viking came with the understanding that it [eminent domain] was available and the Legislature supported it.”

The foundation’s Fernandez claims the CRA did not sign a contract with Viking but only an intention to sign a contract, which is not binding for the redevelopment work.

“We don’t think there’s a valid contract here but, even if there was, the government has the right under its police powers to invalidate the agreement in the interest of public health, safety and welfare,” she said. “This was haphazardly thrown together to show the appearance of a contract. It’s an agreement to agree with eminent domain in between.”

Bob Healey, who heads Viking Inlet Properties, is caught in between. He said he was not surprised by the lawsuits, but he hoped to work out the legal issues and allow the project to proceed.

The first 130-acre phase of redevelopment would focus on construction of the $800 million International Harbor Village, a 50-acre, mixed-use project stretching from the Riviera Beach
Marina north to Blue Heron Boulevard. About 300 affordable homes would be included.

It appears the redevelopment envisioned more than 30 years ago faces more delays. But the mayor still sees success for the city’s plan for a largely blighted area.

“We are going to win because as many as 60 percent of our citizens understand the stark conditions we face,” Brown said.  “Palm Beach cannot become world class until these pockets of
poverty are removed.”

Judge Lewis canceled a hearing Sept. 29 on the foundation’s injunction request. She did not return a call seeking comment.

Fernandez contends Lewis’ denial of the disqualification motion was “inadvertently imprudent” because she failed to look at the law behind it. Lewis did not return calls for comment before
deadline on the appellate court filing.

“The motion should have been enough to disqualify,” Fernandez said. “There was an appearance of impropriety.”

The judge’s father owns property at 31 W. 20th St. in Riviera Beach. The property has been targeted for eminent domain on several occasions but is not currently being considered.

“Whether or not it is taken eventually, Mr. Lewis has an interest in these proceedings, and therefore it is not appropriate for Judge Lewis to continue with this case,” Fernandez said.