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Bury the Hatchet?
Between those two potential outcomes waits Harvey Oyer, a West Palm Beach lawyer whose resumé seems tailor-made for the issue. Oyer holds a master's degree in archaeology from Cambridge University and a law degree from the University of Florida. In his day job, he's an associate at Gunster Yoakley Valdes-Fauli & Stewart, helping developers navigate the maze of financial and regulatory obligations. But in his free time, Oyer hangs around archaeological expeditions and writes law journal articles on things like the protection of cultural property in war.
He could hardly be expected to resist weighing in on the archaeological controversy taking place in his backyard. And he hopes the buildup of public sentiment surrounding the mysterious circular rock formation in Miami provokes legislators to shore up the patchwork of local preservation ordinances scattered throughout a state where Spanish forts and ancient Indian villages lie beneath shopping malls and hotels.
One of Oyer's ideas is to require an archaeological survey as part of the development process in areas considered likely to contain artifacts. Under current state law, developers are under no obligation to report or preserve archaeological finds unless they include human remains. Though some local governments require archaeological surveys or supervision in designated areas, many others rely on developers to voluntarily report finds or submit to surveys and recovery efforts.
That's not good enough, says Oyer, who splices his arguments with an effortless discourse on Florida history and places around the world where modern life and remnants of ancient cultures co-exist under the protection of progressive laws. Oyer believes much of Florida's archeological bounty remains to be discovered as development moves inland. "I think we're going to run into more and more of this," he says.
A statewide law could close the gaps, Oyer says, and wouldn't interrupt development except in the rarest of cases. Oyer pins his hopes on the Miami Circle case, a tangled (even by Miami standards) saga that began with plans for a 600-unit apartment complex on downtown riverfront property and has spiraled into a lawyers' convention. Public pressure, pressure from Native American tribes and national media attention finally prompted Miami-Dade County to sue to condemn the 2.2-acre site, so that the 38-foot circle -- believed to have been carved out by Tequesta Indians 2,000 years ago -- can be preserved where it lies.
The case is unusual for many reasons. For one thing, according to the county archaeologist who first inspected the find, it's the state's first "unfriendly" eminent domain suit ever filed to preserve an archaeological site. "This has never happened before in the history of Florida and may never happen again," says Bob Carr, now of the non-profit Archaeological and Historical Conservancy in Miami.
Eminent domain laws give the government the authority to acquire private property for a public purpose, but the government usually doesn't buy the site of an archaeological find. Instead, the site is mapped and artifacts relocated, with relatively little interruption to development. In cases where sites have been deemed worth preserving, governments have generally been able to reach acceptable terms with developers, even when the eminent domain process is used to establish the amount of compensation.
Since 1981, when the county enacted the state's first archaeological preservation ordinance, only two of approximately 35 cases have resulted in protected sites, Carr says, and in both cases developments were redesigned around the sites. "Most of these sites do not need to be preserved. It's merely a matter of making a record of it."
The Miami Circle case is complicated by a combination of politics and logistics. While officials were still trying to figure out whether the circle could be moved from its foundation, Native American groups intervened, finally designating the land a sacred site. Meanwhile, city and county officials feuded over whether to preserve the site; cash-strapped Miami officials were in no position to casually take a $50-million property off the tax rolls, cultural treasure or not.
At the same time, the legal maneuvering has begun to wear on developer Michael Baumann. The county has tried to revoke his building permits in what his lawyers say is a tactic to reduce the property's value. But county officials maintain the city of Miami did not follow its own preservation requirements in issuing the permits. The county also opted for a so-called "slow-take" condemnation process instead of immediately taking title to the property and depositing an estimate of its value into the court registry, as is done in a "quick take."
Under the slow-take process, the developer keeps title to the property and can continue developing as the case proceeds; the government can back out of the deal up until a final judgment is entered. But county officials sought and won a temporary injunction preventing further development of the site while the case proceeds. Baumann's lawyers complain the county is having it both ways. County lawyers argue that it was necessary to prevent the site from being destroyed. "This was an emergency situation," says assistant county attorney Thomas Goldstein.
Despite its quirks, the case can't be dismissed as an anomaly. Too many people are watching to see how it plays out. Where Oyer sees opportunity for progressive thinking, however, some observers see a case that could make even the most civic-minded developers think twice about welcoming archaeologists onto their sites. "I think the fear is that it may make the whole atmosphere a lot less cooperative," says Carr.
Michael Kreitzer, a Miami litigator who represents developer Baumann in the case, along with a team of other land use and eminent domain specialists, agrees. "There are an awful lot of developers who are very shaken up by what the county has done in this case," he says.
Goldstein insists that such fears are misplaced. "To the extent that anybody feels wronged in this," he says, "they should not." He notes that the final decision in an eminent domain case rests with a jury instructed to award "full compensation" for the property.
A trial in the case is set for October 4. Under eminent domain proceedings, a 12-member jury will hear evidence from both sides and then award a value for the property. In the meantime, Oyer's enthusiasm for his subject hasn't deluded him into thinking he's got a popular idea. He is, after all, a guy working for developers who's planning to propose a new layer of regulatory scrutiny. "It may be a tough sell," he acknowledges.
