High Court to Consider Government's Low Tactics

By Steven Geoffrey Gieseler [1]

December 28, 2009 

 

As government gets bigger, freedom suffers. Nowhere is this truth more evident than in property rights law, where a state of affairs unthinkable a century ago -- let alone at America's founding -- has today become the unfortunate status quo.

But every so often, there is an instance of the government abusing one of its citizens so drastically and for so long that it catches our eye. Such is the case of Gilbert Fornatora, a Florida property owner who has fought this abuse all the way to the United States Supreme Court.

Fornatora owns property near the Everglades National Park in South Florida. Seeking to expand the park in the 1970s, the federal government targeted Fornatora's land for acquisition. But in a rare moment of fiscal concern, the feds decided not to make Fornatora an offer good enough to persuade him to sell, or even to pay fair market value for the land after forcibly taking it through eminent domain.

Instead, the government began to pressure local authorities to increase the regulations on Fornatora's property. These regulations served no valid purpose; instead, they were designed solely to make the land less attractive to potential buyers. With the market for the property thus depressed, government officials then could argue in court that they owed Fornatora an artificially low payment as compensation when they seized his land.

This tactic of down-zoning in anticipation of eminent domain actions is deplorable, but it is not uncommon. For this reason, courts have formulated a doctrine called the "scope of the project" rule that says, quite reasonably, that decreases (or increases) in a property's value that stem from the project for which the land is taken cannot be considered in determining just compensation in eminent domain cases.

But courts do not apply this rule uniformly. In some states and federal circuits, the rule is aggressively enforced by courts seeking to foreclose government chicanery. In other jurisdictions, though, courts are apt to turn a blind eye, instead deferring to government schemes not just to not to take a citizen's land, but also to game the judicial system to keep from paying full price for it.

That's where the second part of Fornatora's story takes place. After years of federal pressure to devalue the land, the government finally initiated condemnation proceedings. But the government was not content with even this level of constitutional abuse.

They instead argued in federal court that the scope of the project protections should not apply to Fornatora's land. Despite documented evidence to the contrary, the feds disavowed any connection to the increased regulation of Fornatora's property, writing it off as a coincidence.

Furthermore, the government manipulated the eminent domain trial itself in order to further cheat Fornatora of his constitutional right to just compensation. Fornatora's case was grouped with numerous other properties taken for the park expansion. Aware that the courts typically seek to assign uniform values to properties in these groups, the feds immediately dismissed cases filed against property owners aided by attorneys and expert witnesses prepared to argue for higher values.

Now facing a spate of defenseless property owners at the outset of proceedings, the government was able to argue unopposed for absurdly low compensation payments. When the represented parties were finally scheduled to make their cases after being reinstated, the government pled to the court that these low values should govern as precedent, and that in the interest of uniformity, the represented owners should be subject to the artificially low valuations regardless of the evidence they might present.

This parade of monstrosities might seem like something out of a dystopian novel or a third-world country, but it happened to an American citizen theoretically protected by the American Constitution. What's worse, the courts --l argely unwilling to second-guess the government when it comes to property rights, which are unique among constitutional guarantees -- signed off on the down-zoning scheme, ignored the scope of the project rule, allowed the trial manipulation, and thus rubber-stamped thirty years of government abuse of Gilbert Fornatora.

In October, Fornatora petitioned the United States Supreme Court to review his case and put a stop to this travesty. The court is scheduled to decide whether to take the case at its conference on January 8. On that day, the nation's highest court will signal whether constitutional rights to property are to be taken seriously, or whether our nation of laws has taken yet another step toward becoming something else.