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.