Florida Eminent Domain Law Blog

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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Legislation has taken shape this session which proposes to limit the ability of government to take cemetery lands via eminent domain. Senate Bill 1308 (Michael S. Bennett) and House Bill 853(Baxter G. Troutman) both provide that, except for road system, transportation corridor, or rights-of-way purposes, a taking entity may only acquire an acre or more of land dedicated for cemetery purposes where it determines through a public hearing that there is “no reasonable alternative” to the taking.

While this seems to raise the bar on the standard for a taking via eminent domain, the broad exceptions and the size requirement of the taking would seem to limit the practical application to a fairly rare set of circumstances. 

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In a widely-sweeping bill formally introduced in the Senate earlier this month, electric utility providers in Florida are seeking measures to streamline the processes by which they acquire real estate and permit power plants and related facilities, including power lines and natural gas pipelines. Senate Bill 1506, sponsored by Senator Mike Bennett, includes provisions that:

• place strict deadlines upon the circuit court to hold Order of Taking Hearings and issue Orders of Takings in condemnation cases where the power of eminent domain is used to take property for power plants and associated facilities (including power lines and other associated facilities);     
• delegate the authority to grant easements over state lands for natural gas pipelines and power lines to the Secretary of the Department of Environmental Protection and/or the governing board of the water management district;
• set forth compensation schedules for the acquisition of property for natural gas pipelines and transmission lines in terms of property exchanges (1.5 times the land area in exchange for an easement- 2 times the land area for fee simple title), or in terms of cash (fair market value plus one half the cost savings associated with traversing state lands versus other alternatives);
• allow for advanced permitting for facilities associated with nuclear power plants prior to certification of the plant itself.

This legislation has been proposed in advance of several significant electric utility projects slated for the state. Progress Energy recently announced plans for about 200 miles of additional power lines to be in service by 2016 located in west central Florida. Much of this additional capacity is designed to accommodate the proposed $17 billion nuclear power plant being planned for Levy County. Tampa Electric Company has also announced the need for 100 new miles of lines in the greater Tampa Bay area over the next five years.

Additionally, Florida’s Public Service Commission recently approved a petition by FPL for a determination of need for two new nuclear units at its Turkey Point facility in Miami. The two new units are projected to come online in 2018 and 2020, and will generate enough power for approximately one million average residential homes.

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As posted back in January, Tallahassee lawmakers are now moving forward with legislation which would provide needed strength and clarification to the Bert J. Harris, Jr., Private Property Rights Protection Act. Identical versions of the bill were filed in both the House and Senate. House Bill 881 was filed on February 8, 2008 by co-sponsors Representative Stephen L. Precourt and Representative Dean Cannon, with the Senate version filed two days before by Senator Carey Baker. Both bills have been referred to committee with the House Bill receiving a first reading March 4, 2008. In addition to a number of technical corrections, key revisions to the statute include:

• a reduction of the notice period an owner must give the government from 180 to 120 days before filing a Harris Act claim in circuit court;
• an increase of the statute of limitations from one (1) to two (2) years after application of the regulation;
• a clarification of what constitutes the “application of a regulation” to property;
• a clarification on the extent of the State’s waiver of sovereign immunity for claims brought under the Act, conforming the statute to recent judicial interpretation;
• inclusion of governmentally-imposed development moratoria extending over one (1) year as actionable under the Harris Act.

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FORT PIERCE — A citywide ordinance limiting the height of cargo containers to no more than 30 feet could be violating the property rights of the owner of the Port of Fort Pierce.

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