Jan 20

Historical Preservation – Property Rights

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Having had the privilege and honor to serve Winter Park as a City Commissioner and Mayor and having been raised as a native Floridian whose paternal grandmother lived in Winter Park with her children, I love and appreciate both the beauty of Winter Park as to its physical topography and its proud history and development as a model community.

Winter Park’s history began with an eight-acre purchase of land by David Mizell, Jr. in 1858. The eight acres he purchased he called Lakeview. David Mizell, Jr. picked out the most beautiful eight-acre plot of land in Florida. Soon other purchasers acquired adjacent beautiful land and in 1887 the City of Winter Park was chartered. Largely due to its beautiful location, Winter Park historically and currently has real property values that exceed the property values in other areas. That same beauty that attracted David Mizell, Jr. and other early purchasers continues to attract real property purchasers in Winter Park. Purchasers of real property often have a long sought desire to build a home of their own choice on a beautiful lot. There are fortunately other purchasers who desire to purchase and maintain one of the many beautiful homes already constructed on lots in Winter Park.
A purchaser of property has by law rights that have been described as a “collection of rights to use and enjoy property, including the right to transmit it to others”. (Black’s Law Dictionary, 4th Ed.) As cities mature they each develop a history which is unique and important to each individual city. With this development homes and buildings become part of the historical significance of the city.

As cities mature and grow larger, limitations on an owner’s use of property have necessarily developed. Increasing population has caused property owners to live in much closer proximity to each other. An owner’s use of the property is now affected by zoning, land use regulations and laws. Most of us can accept the fact that how my property is used can affect the use and enjoyment of my neighbor’s property. Though I own the land on which my home is built I do not have the right to drill for oil in my back yard nor raise wildebeest. Though most would understand these extremes, many cannot understand why their future use of the property may be impacted by the type home constructed or how long that home will remain on the property.

With the exception of St. Augustine, most Florida cities are relatively very young. Florida as a State has existed only 158 years. Despite the fact that most Florida homes and buildings in the State are relatively young compared with many cities, there are still significant historical homes and buildings in the State that should be preserved and protected. The interesting question for debate is: When and how does a home gain sufficient historical significance to warrant limiting the owner’s rights to replace or greatly alter the construction of the home? When do the rights of others override the rights of the individual property owner? This is an interesting, and if you are not the individual property owner in question, a fascinating debate. Citizens of Winter Park recognize the need to protect historic homes. The accomplishment of the Friends of Casa Feliz and many of the same citizens’ efforts to save the Capen House from demolition have shown the City of Winter Park’s interest in historic preservation. The City of Winter Park has taken steps to preserve historic homes but the process needs review and refinement. Steps are currently being taken by citizens who have formed a “Friends of Casa Feliz Preservation Advocacy Committee” to make recommendations for improvement of the City of Winter Park’s historical preservation.

A property owners’ rights should not be altered after the owner acquires the property without “due process” and if the alteration of the property rights causes the financial value of the property to be adversely affected, the owner should be compensated for this lost value by the jurisdiction that altered the owners’ rights.

The process leading to the preservation of historical homes and buildings must be a process that involves the affected property owners. The property owners should make the decision as to what properties should be designated as a historically significant and the decision needs to be made by more than a bare majority of the owners.

Winter Park does have homes and buildings that are historically significant and should be protected and preserved. The process should, however, take into consideration property owners’ rights to develop property to the owners’ satisfaction. The process developed by the City must also meet both State and Federal constitutional requirements as to an individual’s property rights and the taking or denial of certain property rights.

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