Fruit of the Poisonous Tree

March 23, 2009

This week, CPR is profiling two insidious examples of government overreach which should have been recognized as bad public policy at conception, as their basis is a blatant disregard of private property rights: 1) The Jacksonville Port Authority's actions toward land owners in Mayport Village, and 2) Florida's Growth Management Act. In criminal law, there exists a doctrine known as "fruit of the poisonous tree" which is designed to protect the rights of citizens accused of crimes from being prosecuted with evidence gathered illegally. The logic is that if the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") is as well. The "fruit of the poisonous tree" legal doctrine stems from the 1920 Supreme Court Case (Silverthorne Lumber Co. v. United States). The phrase itself references a biblical passage (Matthew 7:17-18) which states "every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit. A good tree cannot bring forth evil fruit, neither [can] a corrupt tree bring forth good fruit." This principle is an extension of the Fourth Amendment protections of "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Let's take a look at two examples of actions evolving from anti-property rights beginnings: JAXPORT WITHDRAWS REZONING REQUEST FOR MAYPORT CRUISE TERMINAL In past editions, CPR has profiled the abusive actions of the Jacksonville Port Authority toward property owner Tom Scholl and land owners in Mayport Village. Last year, CPR reported on a hearing where land owners angrily grilled JaxPort officials when they learned about the creation of maps containing colored overlays of private property in Mayport. The Port Authority was using the map to plan and market private land to third party end users. Despite changes in Florida's eminent domain laws in 2006 to specifically prohibit takings for the purpose of economic development, Port officials have maintained the arrogant belief they have full authority to condemn private land to lease it to third parties. Over the past year, with implicit support of Jacksonville's Mayor and City Council, the Port has moved forward with plans to site a commercial cruise terminal in the tiny, historic fishing village of Mayport. They recently applied to rezone approximately ten of the village's 60 acres for this very purpose. Citizens with strong concerns that JaxPort's appetite for land acquisition would not be limited to owners who voluntarily sold their property to the Port launched a public awareness campaign to make Jacksonville voters and the media aware of their fight.  CPR and Jacksonville attorney Andy Brigham of the Brigham Moore law firm worked to educate Mayport owners of the threat of future eminent domain actions by JaxPort. After the news media began to shine the light on Jaxport's actions, the City Council postponed its vote on the Port's joint rezoning and PUD request. On March 2, JaxPort's board voted unanimously to withdraw the Port's rezoning application and to strip references to a Mayport cruise terminal in a proposed update of the master plan for the port's development.   When the JaxPort board had voted in late January to advertise for a firm to design the Mayport terminal and develop a cost projection, the impact of the public questions raised by Mayport residents and attorney Brigham is obvious. From the outset, Port officials broke faith with the citizens of Mayport by openly disregarding their property rights. JaxPort staff never disputed the fact that they were planning and marketing privately-owned land with the projected benefit of significantly enhancing revenues for their agency. JaxPort officials did not alter their anti-property rights actions until compelled to. The arrogance of Port officials is still demonstrated on the webpage which they created to stem the damage created by media scrutiny. Nowhere on this site does it state this proposal began with their agency planning and marketing the use of private land without the consent of the owners. Had Port officials supported private property rights and acted in good faith toward the citizens of Mayport, they would have initiated discussions with private land owners prior to marketing their private land to third parties and agreed to take the future use of eminent domain off the table. They did not. Only the most naïve of persons would believe they would spend $60 million on a single cruise ship slip without having an eye toward future expansion. JaxPort's proposal in Mayport began as a direct offense to property rights and Mayport citizens had good reason to vocally protest their actions.  FLORIDA'S ANTI-PROPERTY RIGHTS ACT No reference to ill-conceived anti-property rights actions would be complete without mentioning Florida's Growth Management Act whose legislative sponsors openly disregarded the impact of this legislation on property rights.

Due its devastating impact on Florida's economy during the past two decades and in large part due to concerns the Act might prevent our state's economic recovery, legislators are currently considering reforms. One bold proposal calls for the elimination of the Department of Community Affairs.

The underlying premise of the Act is state officials should control the use of all private land in Florida.  The idea that government should control the use of all land is a direct assault on the concept of private property ownership.   

A property's value inherently lies in its use. To control the use of property is to control its value. Those who control a land's use also control "who" benefits from property ownership.  

Under the Act, both state and local governments have stripped owners of their historical right to dream, to plan for and control the future use of private land. Many Florida owners purchased their land before any zoning or GMA regulations existed, but have no legal recourse under current case law. The Act now allows local and state officials to control increasingly minute details of how private land can be utilized. Repealing provisions of the Act relating to private land use would bring tears to the eyes of thousands of Floridians whose hopes and dreams have been trampled under the auspices Act. Substantive reform or revocation would provide an instant boost to Florida's economy.  The impact of the Act's duplicative layer of land use regulation on Florida's economy has been immeasurable and it is inconceivable how much capital would flow into Florida if the Act were revoked.

Florida's current legislative leadership should be reminded the Act they are seeking to reform was initially adopted by populist Governor Bob Graham. Democratic leaders controlled both houses of the Florida Legislature. (The partisan breakdown in the FL House was 77 Dem, 43 Rep. FL Senate was 32 Dem and 8 Rep.)

Ideally, the protection of private property rights is a non-partisan responsibility, but these historical facts are noteworthy. Also noteworthy is the fact that subsequent Republican-led legislatures have ignored the Act's damage to property rights and Florida's economy. This does not suggest that private property cannot be taken for public use, with just compensation. However, the Act did not contain any mechanism for justly compensating owners whose land use rights would be restricted by this legislation.  Because the Act does not compensate owners for lost property rights, it conflicts with the Compensation Clause of the Fifth Amendment to the US Constitution. It also conflicts with the Supreme Court's 1960 decision in Armstrong v. United States, which stated, "The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Upholding the Constitutional protections of citizen's rights requires officials in all levels of government to institute policies and practices which prevent government entities from prioritizing revenues or centralized planning over the people's rights. The primary role of public officials in America should be to create and uphold policies which preserve the natural rights of every citizen and to provide each with the unlimited opportunity to benefit according to individual labor. In 1985, rather than responding to citizen concerns about their declining "quality of life" by pandering and adopting centralized planning strategies similar in both concept and economic effect to those employed in socialist and communist nations, Florida's leaders should have simply expressed the proper role of government is to protect individual freedom and the opportunity for individual socio-economic advancement, not to enact rules which limit the economic opportunities of hard-working, law-abiding citizens seeking to benefit from their labor and from property ownership. But populism trumped the protection of individual rights in Florida in 1985. If, in 1985, local and state officials had recognized: 1) the Act's disasterous economic impact, 2) its negative impact on free market affordable housing, 3) the extent to which local future land use change decisions would be politicized, OR if they had been principled enough to exercise their moral and Constitutional responsibility to protect the property rights of Florida citizens, this ill-conceived legislation would never have been adopted. The centralized planning philosophy upon which the Growth Management Act is based is undeniably "inconsistent" with the value of freedom and unlimited economic opportunity in America.  The fact our state and federal judiciaries have not found Florida's Growth Management Act unconstitutional is a clear indication of the weakened level of protection of human rights offered by our federal judiciary. 

Thankfully, for those whose life or liberty might be at stake in our courts, the Fourth Amendment has provided greater protections than those currently afforded by the Fifth Amendment relative to property." "Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property..." - Samuel Adams, 1772, Boston
YOUR RIGHTS, YOUR FIGHT