Florida Eminent Domain Law Blog

Excerpted from the Miami Herald, August 16, 2010

Toluse Olorunnipa

There are a couple of new laws property owners should keep in mind as the 2010 property tax season kicks off.

If you've added buildings, additions or other improvements to your property, you can be spared from the standard retroactive taxes that have been charged in the past.

The state Legislature passed a law this year providing relief for homeowners that have added improvements, buildings or other changes to their property. If the homeowner reports the additions to the county property appraiser before Jan. 1, the improvements will only be reflected in their 2011 assessments. Under normal circumstances, once additions are discovered, the homeowners would be responsible for up to three years worth of back taxes for the value of the improvements.

Also, if your home is severely tainted with Chinese drywall, your property should be valued at $0, because of a law passed this year in the state Legislature. If the building is uninhabitable, owners will not have to pay property taxes on it until it is repaired, the law states. Homeowners still have to pay taxes on the land the property sits on, and Non Ad-Valorem taxes will also be required. Affected homeowners should provide their county appraiser documentation showing that their homes contain the drywall, which emits sulfur odors and can cause structural damage.

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 Last week, in a unanimous decision, the U.S. Supreme Court further empowered government over the people’s rights in its ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. The Court has essentially given the State of Florida carte blanche to alter the property boundary lines of ocean-front property owners and to turn all private ocean-front land into ocean-view property.

Prior to the beach renourshiment project initiated by the government, these owners owned private ocean-front property with well-established property boundary lines reaching down to the mean-high-water mark. Hundreds of thousands of other water-front properties across America have similar MHWM boundaries. These properties are among our nation's most valuable real estate because of this direct water frontage. As a direct result of a government action and subsequent state court rulings, these owners now own lands whose boundaries have been severed from the waterline; they have been given a new property boundary line set arbitrarily by the state (known as the ECL); and a stretch of public land or beach will now separate their waterfront property boundary from the water. Oceanfront property has been converted to ocean-view property.

 

For non-ocean front property owners who may feel little commonality with those who do, just ask yourself how you would feel if you learned the U.S. Supreme Court had just fully sanctioned the ability of local and state governments to move your front yard property boundary line back onto your property and to establish that the stretch of land between your boundary line and this new line was now public property - without asking your permission or consent and offering you no form of compensation for this encroachment and diminishment of your land. This is exactly what occurred to property owners in Florida's panhandle and which is now fully permitted to occur across all Florida.

 

This ruling, combined with the environmental disaster impacting the Gulf of Mexico will continue to pit property owners against the State until the Florida Legislature addresses the fact that Florida property owners are not treated fairly under the current law.

 

Excerpted from Coalition for Property Rights post of June 18, 2010.

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 Florida's Fourth District Court of Appeal in West Palm Beach recently returned a unanimous ruling in favor of a large group of Broward County residents fighting to have their Constitutional property rights respected.  The judge stated, "government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them. Under any possible meaning, if government cuts down and burns private property having value, the government has taken it. And if government has taken it, government must pay for it."

The Compensation Clause in the Fifth Amendment to the US Constitution states, "nor shall private property be taken for public use, without just compensation." However, from 1995 to 2006 the rights of Florida citizens were trampled in the State's zeal to combat citrus canker. Approximately 866,000 private citrus trees were destroyed in Florida, often against the objections of owners and without proper compensation. State officials felled citrus trees in backyards and commercial groves across Florida in a proactive attempt to prevent the spread of citrus canker, a disease significantly impacting Florida's citrus industry, but many homeowners questioned the science used as justification for the backyard tree eradication program. 

Over 55,000 Broward property owners are due to receive $11 million in compensation from the Florida Department of Agriculture for the healthy trees destroyed by government chainsaws. After initially claiming owners deserved no compensation, the State eventually extended token payments and gift certificates to allow citizens to purchase small replacement trees, which was not viewed by owners who had lost older and larger mature trees of much greater value as fair or adequate compensation.

Excerpted from Coalition for Property Rights by Carol Saviak & Jourdan Viele.

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Excerpted from First Coast News, May 6, 2010

Jenifer Lindgren

Video Clip here

Property is more than a piece of land for those who have worked their entire lives to make a comfortable home. What happens when the government says they need it?

Lonnie Portwood and his wife have spent decades making a home on Ft. Caroline Road, choosing the once-shady, quiet street for its beauty and seclusion. The view changed, however, when the couple received a notice in 1999 that the road was to be widened as part of the Wonderwood Connector.

"Every reason we bought the property, they're taking away!" Lonnie said.

They were familiar with the government's right to take a piece of private property for public purpose. But when The Jacksonville Transportation Authority offered the Portwoods an appraisal of $9,100 for 25 feet of their front yard and a temporary construction easement on the side, the couple hesitated.

"The initial offer seemed ridiculously low," Lonnie said.

According to the Constitution of the State of Florida, when a government takes private property for public use, it must pay fair market value and full compensation; or, whatever damage in value is left to the remaining property.

The Portwoods felt that $9,100 wasn't enough compensation for the loss of their yard. They expected their home value to drop with the addition of the new road.

The Portwoods hired eminent domain attorney Andrew Brigham, of the firm Brigham Moore.

Brigham's firm hired their own independent appraisers and countered with a value of $79,900, the same 25 feet of land, but a $70,800 difference.

"If the (homeowner) does not get paid full compensation, then they really have paid more for the public good than anyone else," Brigham said.

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Today, the U.S. Supreme Court will hear argument from Destin beachfront property owners regarding the City of Destin and Walton County’s beach restoration project. In 2003, Destin and Walton County officials proposed a plan to pump sand onto a 6.9 mile stretch of land in Florida’s Panhandle, indicating the renourishment was necessary due to the region’s impact by recent hurricanes. The officials looked to Florida’s Beach and Shore Preservation Act, which would allow a change to the boundary line between the submerged public lands and the owner’s waterfront property. Essentially, rather than using the Mean High Water Line (MHWL), the FDEP established a new standard, the Erosion Control Line (ECL). The ECL is a fixed boundary which once established would allow all sand pumped on the sea side of the line to denote state-owned land. As such, the beachfront private property owners would lose the right to claim any accreted land seaward and their property would become a mere waterview as opposed to a waterfront property. The Beach Renourishment application was challenged by two property owner groups (Save our Beaches, Inc. and Stop the Beach Renourishment, Inc.)

In 2008, the Florida Supreme Court ruled 5-2 against the property owners, ruling that the State has an obligation to maintain Florida beaches “in trust for all the people, “ and the ECL designation did not constitute a taking of private property.

The essential question facing the U.S, Supreme Court is whether the Florida Supreme Court’s ruling and reversal of 100 years of Florida property law that littoral rights are constitutionally protected, amounts to a judicial taking of property without just compensation.

Photo credit: www.destin-fwb.com - Beach Restoration in Progress, Eastern Destin

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 In the 2009 session the Florida Legislature, via joint resolution of the House and Senate, proposed an amendment to the Florida Constitution which would eliminate the last alien land law remaining on the books in the United States of America. To do so, the Legislature seeks to place a proposed amendment on the next statewide ballot to eliminate an antiquated constitutional provision which allows the legislature to regulate or prohibit the ownership, inheritance, disposition, and possession of real property by aliens ineligible for citizenship.

The pertinent section of the Florida Constitution comes from Article I, the Declaration of Rights. Section Two therein sets forth Floridians’ basic rights,

 

“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.” (Emphasis supplied).    

 

The Joint Resolutions (SJR 314 and HJR 203) propose to eliminate the highlighted language. According to the legislative staff analyses accompanying the Resolutions, most alien land laws had been found unconstitutional in the United States by 1960, with Wyoming, Kansas, New Mexico and Florida the last of the states with such provisions. Between 2001 and 2006, Wyoming, Kansas and New Mexico repealed their respective alien land laws. Because Florida’s alien land law is part of the state constitution, the Legislature may not simply repeal the measure; rather the Florida Constitution must be amended. This will be the second attempt at eliminating this language from Florida’s Declaration of Rights, a similar measure (Amendment 1) failed to achieve the necessary majority of sixty percent in November of 2008.

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From the outer reaches of the panhandle, down to the tip of the Florida Keys, and in all places in between, Floridians should expect to see more and more visible signs of an increase in expansion activities by private utility companies in the coming months, particularly in the area of energy infrastructure. Providers of electric power and natural gas are seeking to improve and expand Florida’s energy infrastructure in an effort to catch up with the state’s rapid growth of the last ten years, and to keep pace with the growth that is expected for the decades to come. Major projects such as Progress Energy’s Levy County Nuclear Power Plant  and 188 miles of associated transmission line expansion, and the Florida Gas Transmission Company’s Phase VIII expansion to the natural gas transmission pipeline network are in the planning and permitting phase, and are likely to begin construction activities in the upcoming year. In addition to these large projects, many smaller energy infrastructure expansion and improvement projects are in the works as well.

As a part of this push for energy infrastructure projects, many Florida landowners will be approached by private companies with offers to purchase their property, portions of their property, or more likely, easements over portions of their property for rights to locate overhead electric power lines or underground natural gas pipelines. These offers and negotiations take on a different dynamic because the potential purchaser has the power of eminent domain on their side – effectively taking away a landowner’s right to say, “no thanks.”

The power of eminent domain is a function of the sovereignty of our government. This power is in contradiction to a basic fundamental right, the right of private property, and is therefore strictly construed against the government asserting the power. Certain private companies, however, are availed of the power through delegation from the legislature. While the statutes and constitution have been recently amended to prevent someone’s home being taken to build a Wal-Mart, Florida has long deemed that corporations “organized for the purpose of constructing, maintaining or operating public works”  may appropriate lands or any materials necessary for the construction of those works, using the state’s power of eminent domain. See§361.01 Florida Statutes (2008).

When a non-government agency seeks to acquire private property in Florida using this delegated authority of eminent domain, the fundamental constitutional protections for the rights of the landowner remain firm.

No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner.

           Article X, Section 6(a) Constitution of the State of Florida (1968).

The full compensation requirement of the constitution is intended to place the private landowner on a level playing field with the condemning authority, and to make the owner whole as much as possible and practicable. In fact, some aspects of the condemnation process are even more strict for private companies exercising the power of eminent domain. See §74.051(2) Florida Statues (2008) (requiring a private condemning authority to place twice the good faith estimate of value upon deposit in a quick taking proceeding).    

For more information on Florida energy infrastructure projects currently in the permitting phase, see:

Florida Gas Transmission Phase VIII

Cypress Pipeline Phase III

Florida Power & Light Bobwhite-Manatee 230kV Line

Florida Power & Light West County Expansion – Unit 3- Palm Beach County

Progress Energy/Tampa Electric Lake Agnes – Gifford 230kV Line

Progress Energy Levy Nuclear Power Plant and 188 miles of associated transmission lines.

For more information on the right of private property and the power of eminent domain, see our Owners’ Handbook.

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This past week, more than 200 hundred citizens gathered outside a small pink house in the district of New London, Connecticut, for a ribbon cutting ceremony to mark the third anniversary of the Kelo vs. New London Supreme Court decision and to commemorate the successful relocation and reconstruction of Susette Kelo's home.  The house and the land it once stood upon became famous on June 23, 2005, when the Court issued its 5-4 split ruling in favor of the City's authority to take Kelo's property for a public purpose. This ruling shocked the nation, as it was a violation the spirit and letter of the 5^th Amendment which clearly states, "nor shall private property be taken for public use, without just compensation."

As a result of the ruling,Susette Kelo lost the right to remain in her home on her property. Due to the media attention surrounded this case, the city allowed her to physically relocate the house to a new property.

The home was saved to stand as a symbol for the national property rights awakening and the nationwide backlash against eminent domain abuse, resulting in judicial decisions, citizen activism, initiatives, and legislation in favor of property owners.

Since Kelo, two state supreme courts have rejected the decision as violating protections in their state constitutions.

Forty-two states have changed their eminent domain laws either through citizen initiative or legislation. About half are viewed as substantive. Florida's reforms are considered among the strongest in the nation.

Excerpted from Coalition for Property Rights post, June 27, 2008

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The fundamental right to own property has been set forth in the United States Constitution, enumerated in the Bill of Rights, and has been given added meaning and protection for the citizens of Florida through Florida’s Constitution and Statutes. Now, property rights have had their own day in the Florida sun.

This past week the Florida House, Representative Frank Attkisson offered House Resolution 9157, officially declared April 24, 2008 to be “Property Rights Day” in Florida. The House, through the Resolution recognized that property rights are “inalienable human rights which provide the foundation for individual freedom and individual economic opportunity” and are “integrally linked to the social and economic welfare of the State of Florida.”

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A number of bills are making their way through both chambers which protect Floridians’ rights to display not only the United States Flag, but also the State Flag of Florida, the flags of the branches of the armed forces, and the POW-MIA flag. The protections sought by some of the bills are against rule-minded homeowners associations and management companies from dampening the spirit of homeowners and their ability to show their colors (SB 857). The “Florida Flies the Flag Act,” sponsored by Senator Burt L. Sunders, takes aim at counties and municipalities and would prevent them from enacting ordinances against the display of the United States flag and also prohibit any requirement of a permit or the payment of a fee to fly Old Glory.   

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