Private Corporations in Florida Wield The Government's Power of Eminent Domain
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
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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Property Rights Have Their Day in the Sun
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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Electric Utilities Gear Up For Expansion
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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Cargo law may violate property rights
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.
The city's Code Enforcement Board found King Maritime Group, owner of the Port of Fort Pierce, which does business as Indian River Terminal, in violation of the ordinance at a Feb. 13 hearing.
Indian River Terminal was stacking cargo containers four high and has 30 days to remedy the violation or it could face a $250-a-day fine.
Attorney John Little of Brigham Moore LLP, who represents King Maritime Group, said he would challenge the fairness of the city rule in circuit court.
The city adopted the ordinance Oct. 15 restricting cargo containers to no more than three high or 30 feet. Prior to the ordinance, there were no height restrictions on cargo containers, Little said. At the time the law was passed, Indian River Terminal was stacking cargo containers to a height of four high.
Because the company was there before the law, the city's code allows "non-conforming" uses to continue, Little said.
"In an effort to avoid or minimize property rights claims when a new ordinance goes into effect, many governments have established grandfather provisions in their codes to allow that non-conforming use to continue," Little said. "Here, the city failed to follow its code and is forcing the owner into further litigation in order to protect their property rights. "
Excerpted from TCPalm, Feb. 28, 2008
Full article by Alexi Howk
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Brigham Moore Applauds Florida's New Stricter Eminent Domain Law
With the signing of HB 1567, Florida Governor Jeb Bush put an end to eminent domain abuse in the context of "community redevelopment" in Florida.
The state is putting a stop to the taking of private property for less than genuine public purposes under the label of "slum" or "blight," according to Andrew Brigham, a Florida lawyer with Brigham Moore LLP, who testified repeatedly during the recent legislative hearings.
The firm is Florida's leading statewide eminent domain and property rights defense firm with offices throughout the state.
"In the past 10 to 15 years, takings of private property were not occurring in the inner city where free enterprise had been found to abandon the community," said Brigham. "Instead, takings for the bigger, better and more beautiful visions of local government and favored developers were occurring near the oceanfront or Intracoastal, requiring the taking of private property from those who were less economically or politically empowered than the developers to whom title would transfer."
Controversy erupted recently when Michael Brown, Riviera Beach, FL, Mayor, and Robert Healey, a New Jersey developer owning Viking Yachts, mounted a last minute lobbying effort to allow local government a "grace period" in which to enter into development agreements to use the power of eminent domain to assemble property for the developer. This would allow eminent domain proceedings to be filed by the City up until 2010.
Healey proposes to build a marina, hotels, restaurants, retail shops and condos where homes and small businesses now stand under private ownership. Brown calls the development effort a "rescue mission" to save poor neighborhoods. To back their plan, Healey offered to pay for chartered buses to transport protestors to Tallahassee, FL in the hopes of deterring Governor Bush from signing the bill.
According to Brigham's prevailing viewpoint, "It is hard to conceive that 'saving' the neighborhood requires actually 'selling' the neighborhood to a developer. Can it really be suggested that you are on a 'rescue mission' when you are taking away a person's home or business? These people do not want to be rescued, only left alone."
Rather than allowing for a "grace period," Florida's lawmakers stood by their original promise to provide meaningful reform to the state's property owners. HB 1567 was signed in record time to accelerate the commencement of eminent domain proceedings, and an effective date was provided upon the governor's signature. So too, HB 1569 was signed and provides that a constitutional amendment be placed on November's ballot for protection against takings of private property for the sole purpose of economic development.
"This is an uplifting testament of how Florida's Legislature and Governor stayed true to the hard-working people whose homes or businesses were in the sites of a 'reverse-Robin-Hood' eminent domain exercise," said Brigham.
"We avoided a devastating compromise sought by a number of local governments and their developers. Our representatives in Tallahassee did not forget whom they serve."
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