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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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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The Florida Legislature is considering expanded statutory protection for homestead property acquired by government agencies through eminent domain.

The bill, if enacted, would require a condemning authority to separately determine, and a jury to consider as a component of full compensation, the present value of the future tax benefits provided under Section 4(c), Article VII of the State Constitution. Commonly known as the “Save Our Homes Cap” this amendment provides Florida homeowners with substantial protections and savings from rapidly increasing property assessments and taxes. At least one Florida circuit court judge has held that this benefit is compensable as a component of the constitutional requirement of full compensation. The proposed bill would provide statutory assurance that a homeowner does not lose this constitutional “Save Our Homes” benefit due to a government taking of their homestead property.

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Last year, Florida went on record in support of private property rights protection, passing one of the most comprehensive eminent domain reforms in the country. As a result, eminent domain cannot be used by community redevelopment agencies to take property from one private owner and give it to another in the instance of "slum" or "blight." A constitutional amendment also passed prohibiting the use of eminent domain to accomplish any private-to-private transfer of ownership and control unless approved by a three-fifths vote of the Legislature.

Now, just one year later, the Legislature is on the verge of giving money to government to do what it said last year should not be done. The question is: Will our legislators stick to their guns on private property rights?

Senate Bill 432 is a proposed appropriation bill that on its face seeks to fund seaport projects that improve moving goods and people to enhance global trade at Florida's 14 deepwater ports. These monies will come from the redirection of $10 million annually from vehicle registration fees or revenues outside of those generated by the ports themselves. The problem is that, unless modified, the legislation would enable seaports to use funds in eminent domain for private-to-private land takings, and we know at least one would.

The Jacksonville Port Authority is in fact currently pursuing a condemnation lawsuit to take approximately 65 waterfront acres from Keystone Coal Company, just to lease it to a competitor, Drummond Coal Sales, Inc. Jaxport, like many public port authorities, is a "passive landlord port," meaning it does not operate facilities leased to others. Of further note, Jaxport's revenues are not put back into the general revenue funds of the community, but instead are used to fund further port expansion as part of "economic development." Is this an example of how state funds should be used? Is "economic development" really accomplished by government choosing one private entity over another who through private ownership sought to do the same thing?
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MY VIEW
By Election Day, politicians will have expended extraordinary efforts to make sure voters remember their faces as the best candidates. However, as Floridians consider their vote on Amendment 8, which would restrict the use of eminent domain for private-to-private transfers, there are other faces that should be remembered.

Eminent domain became the talk at the dinner table and around the water cooler after the U.S. Supreme Court ruling in Kelo v. City of New London. People realized government's use of eminent domain was forcing owners to give up their properties for use by other private entities, on the pretense that such a taking furthered the community's economic development.

Though private-property ownership is protected as a constitutional right, the only way to protect this right is to limit the government's power of eminent domain.

When considering Amendment 8, one face to remember is that of Tom Scholl, a self-made coal industry entrepreneur and owner of Keystone Coal. For eight years, Scholl endured many setbacks as he attempted to secure property along the St. Johns River in Jacksonville. He made every attempt possible to lease an alternative site from the Jacksonville Port Authority. Finally, he purchased a property that Jaxport has passed up twice before.

Despite the fact that Keystone had purchased the 60-acre parcel, Jaxport negotiated a lease with Drummond Coal, a competitor. Does this seem fair? Then it filed for eminent domain based on its mission to be "an economic engine." Moreover, Jaxport officials indicated their desire that all property along the St. Johns River be in public, not private, ownership. Without constitutional limitation, Jaxport has the power of eminent domain to make that possible.

Tom Scholl is fighting Jaxport's lawsuit to take away his property, and it will be up to Florida's courts to interpret the constitution to protect property owners from takings in the name of "economic development."

However, Floridians will also have a chance to clarify constitutional intent by voting for Amendment 8, which is endorsed by Gov. Jeb Bush and the Legislature. Amendment 8 will require a three-fifths vote of the Legislature before eminent domain is used by state or local government to force a private-to-private transfer of private property.

Voters should remember the face of Tom Scholl and others whose private-property rights have been trampled as they vote on this important amendment.

The full text of all proposed amendments can be found here

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When the United States Supreme Court ruled in June of last year that the City of New London, Connecticut could take Suzette Kelo's home, demolish it, and turn her lot over to a private developer, many Americans recoiled in anger and disbelief. The 5-4 Supreme Court decision, Kelo v. New London, essentially held that a community redevelopment plan for an older area which provided economic stimulus for the over-all community was a legally defensible reason for the exercise of the power of eminent domain. The Court held that the purpose of economic development is sufficient to permit a forcible taking of private property, and meets the Public Use requirement of the Fifth Amendment to the U. S. Constitution.

The resulting national controversy over such governmental takings (called eminent domain or condemnation) has focused on the plight of private owners in the path of urban renewal. Yet as serious as this recent development is, and as wide-spread as takings for economic development have become, there is a broader, even more significant issue which the Kelo decision suggests. Many of our federal courts have gradually, almost imperceptibly, moved to the position that a citizen's right of private property, protected expressly by the Fifth and Fourteenth Amendments, is not a fundamental right. Kelo is clearly indicative that an institutional mind-set has emerged with many courts that private property is a lesser, inferior right than the other civil rights guaranteed by our Constitution's Bill of Rights.

What is at stake is the issue of, which of our rights are deemed fundamental? More than you may think. When a court labels a citizen's right as fundamental, any judicial inquiry into an infringement or injury to that right by governmental action is very protective of the citizen. For example, if a public employee criticizes her governmental boss, that employer may feel the urge to quiet the criticism by regulation or retaliation. The employee's job may even be at risk. Under our Constitution however, that employee's right to freedom of speech - which includes the freedom to criticize - is protected by law. In short, the burden is on the government to prove to the court that the restriction of speech is absolutely necessary for the public health, safety and welfare.

The situation is markedly different, however, when the citizen's right is deemed non-fundamental. A city may suddenly decide that it is weary of constant growth, and that no lot owner could, henceforth, build on his/her private lot without a prohibitively costly impact fee. Any challenge to that law in court could, at least in federal court, be held to affect a mere economic right, and not a truly fundamental one. In that event, the court would give great deference to the city, and only over-turn the regulation if it were obviously arbitrary or unreasonable and bore no substantial relationship to a legitimate state interest. The burden of proof would thus be on the complaining citizen; and the burden would be great, often insurmountable. The difference between the two labels (fundamental or non-fundamental) may well determine who wins the challenge to the governmental action.

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