Florida Eminent Domain Blog | Gregory W. Stoner

When Sonia Sotomayor was nominated for the Supreme Court, there were many concerns about her judicial history. For some, it was her statement that judges should practice judicial activism. For others, it was that she did not represent a powerful liberal alternative to the conservative judges on the Court.

But others objected to Sotomayor's possible stance on eminent domain. In particular, critics point to the decision in Didden v. Village of Port Charles (2006), which is an unsigned opinion presented by a panel of three judges of the Second Circuit Court of Appeals, one of whom was Sotomayor. In this case, some say she participated in state-sponsored extortion, in which one developer, Bart Didden, was asked to pay $800,000 or give a share of profits to another developer, Gregory Wasser, in order to stop condemnation procedures against his property. When Didden refused, condemnation procedures on his property began on November 6, 2003.

The dialogue between Didden and Wasser is according to Didden and is otherwise unconfirmed. It is also irrelevant to the basis of the Court's decision. The Court said it would have made its decision because it was forced to by the recent Kelo v. City of New London. The decision cites Kelo's language about when judges cannot intervene in an eminent domain case: "Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what land it needs to acquire in order to effectuate the project." Essentially, the Court has said that it cannot comment on and interfere with a City's development plans once the project has passed the muster of "public use," which in Kelo was a pretty easy muster.

But just as that wasn't the real reason for the decision, it isn't the real lesson we need to take away from the case. The case was really decided because the claims were time-barred, according to the Second Circuit Court of Appeals. Even though Port Charles did not begin actual condemnation procedures on Didden's land until 2003, the Court said that he should have acted to protest the taking in 1999 when the Village of Port Charles announced its development plans and informed him of its plan to condemn his land. Now the Court has denied his attempt to stop the taking, leaving Didden only able to seek just compensation for his land.

If you have received notification that a condemning authority plans to take your land, don't wait. Take action today to protect your property rights. Contact the Florida Property Rights Law Firm, PA to learn how.

Eminent domain is a sovereign right of the government, but in both the US Constitution and the Constitution of the State of Florida this right is explicitly limited. The Fifth Amendment of the US Constitution states, "Nor shall private property be taken for public use, without just compensation."

The Constitution of the State of Florida has similar, but more extensive language in Article X, Section 6 Eminent Domain:

(a) . No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.
(b). Provision may be made by law for the taking of easements, by like proceedings, for the drainage of the land of one person over or through the land of another.
(c). Private property taken by eminent domain pursuant to a petition to initiate condemnation proceedings filed on or after January 2, 2007, may not be conveyed to a natural person or a private entity except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature.

We have spoken on several occasions about the legal challenge to the Beach and Shore Preservation Act (BSPA), but mostly we have looked at the majority opinion. However, it is the strength of the dissent's remarks that have cause the Supreme Court to hear the case, so it makes sense for us to take some time to understand what the dissent is saying.

The dissent notes that the majority opinion depends on severing littoral rights from literal contact with the water. The Supreme Court of Florida stated that the literal connection with the water is not inherent to riparian water rights, but the dissent states, "By essential, inherent definition, riparian and littoral property is that which is contiguous to, abuts, borders, adjoins, or touches water."

The dissent makes significant use of Belvedere Development Corporation v. Department of Transportation (1982), which agrees with the principle that "To speak of riparian or littoral rights unconnected with ownership of the shore is to speak a non sequitur," as well as utilizing a number of earlier decisions for definitional support of littoral rights being based on actual contact with the water. Belvedere is a case in which the Florida Department of Transportation (FDOT) sought to acquire land at the water's edge of properties using eminent domain and paying only a simple fee for the land actually taken without paying severance damages, which the Court decided was inappropriate because taking upland property inherently severed the property from the water.

Most importantly, the dissent calls attention to Hughes v. Washington (1967), which notes the soundness of the principle of accretion and reliction rights, saying "Any other rule would leave riparian owners continually in danger of losing the access to the water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines."

The dissent acknowledges that the BSPA may be constitutional if it allowed Florida to restore the beach only to the point that the new water line were at the ECL, but as soon as it goes beyond that to create new beach, it must acknowledge that doing so constitutes a partial taking that severs littoral property rights from the upland property.

It will be interesting to see whether the US Supreme Court upholds the Florida Supreme Court decision or favors the dissent.

If you believe that the actions of a federal, state, or local government constitute a taking of your property, you may be able to file an inverse condemnation lawsuit. The Florida Property Rights Law Firm, PA can help you protect your property and your rights. Please contact us today to learn more.

If a new development is being built in your area, it will need access to municipal water supplies. Chances are that current pipes will not be sufficient to supply the new development and new sewer lines may need to be installed to remove waste. These pipes may be planned to go through your property.

Putting a sewer or water line under your property requires a special grant from you known as an easement. An easement allows people to use your property for a specific purpose. In the case of a sewer or water line, remember that an easement means not only that your property can be used for placing the line, but also for maintenance.

If you do not want to allow the sewer line, it may be possible to fight eminent domain if the line is going to serve a private development. Florida law forbids the use of eminent domain to serve private interests, and this argument may be used to stop a proposed sewer or water line.

Even if you cannot prevent an easement, an experienced eminent domain lawyer can help you get maximum compensation for your property rights. Please call or email the Florida Property Rights Law Firm, P.A. to learn more about your rights and how to protect them.

Responsible development is a powerful concept in contemporary planning. Communities are demanding that private developers and government agencies be aware of the environmental impact of any given project.

Although responsible development is good for the environment and for the community as a whole, it can lead to an increased use of eminent domain. Now, roadway and other public projects need land not only for the project itself, but also for environmentally conscious areas set aside to offset the environmental damage of the project.

An example of this is the Wekiva Parkway Project. In planning this project, the Florida Department of Transportation (FDOT) and its local partner, the Orlando-Orange County Expressway Authority (OOCEA), sought to acquire land not only for the road, but also for conservation areas of the "natural treasure" that is the Wekiva River Basin. In all, 9,000 acres were set aside as part of this project. Although some of it was already park land, other parcels were obtained through eminent domain to serve as conservation areas.

If you have property and a government agency wants to purchase it for conservation purposes, refusing to take the government's first offer does not mean you are opposed to conservation. You have a right to get the best possible value for your property, no matter why the government seeks to acquire it.

If you are facing a condemnation procedure for your property, no matter why the government seeks it, the lawyers at the Florida Property Rights Law Fim, P.A. can help. Contact us today to learn how.

Business damages are different from other eminent domain damages because they are not guaranteed in either the Florida or the US Constitution. In the words of the Supreme Court of Florida, they are "a matter of legislative grace, not constitution imperative." As a result, they are not considered part of either "just" or "full" compensation.

But this does not mean that business losses you incur as a result of an eminent domain taking of your business property are not considered by the court. There are several ways in which the court can compensate you for these "intangibles."

Property appraisal should include the value of your land at its "highest and best" use, which should take into account the value of the location for your business. You should be compensated at a rate that would allow you to purchase a new property of comparable value for your business, although whether you can actually find such a location can never be guaranteed.

Statutory damages have been granted for businesses in certain situations. This includes businesses that are subject to a partial taking for certain types of rights-of-way when the partial taking forces the business to relocate. Sometimes, it can be argued that the loss of your current location is tantamount to losing your business entirely and receive full compensation based on the total value of your business. Statutory business damages are granted in a separate hearing after the conclusion of the normal eminent domain process.

Property cures for partial takings that threaten your business can be designed to minimize business damages and restore your business to its state before it was affected by condemnation. These are incorporated into severance damages.

If your business is threatened by eminent domain, a skilled property rights lawyer can help you get the maximum allowable compensation for your property. Contact the Florida Property Rights Law Firm, P.A. today to learn more about protecting your business from irreparable damage due to eminent domain.