Tuesday, May 29, 2007

Florida's New Eminent Domain Law

First, I'm not a lawyer (hurrah!). Fortunately, it appears the City of Key West has a good one.

Eminent domain is defined by wikipedia as:

Eminent domain in common law legal systems is the inherent power of the state to seize a citizen's private property, expropriate private property, or rights in private property, without the owner's consent. The property is taken either for government use or by delegation to third parties who will devote it to "public use." The most common uses of property taken by eminent domain are public
utilities, highways, and railroads. Some states require that the government body
offer to purchase the property before resorting to the use of eminent domain.

Eminent domain is a constitutionally protected power given to municipalities. The rule of eminent domain is the governmental power to take private property for public use. The Fifth Amendment of the U.S. Constitution states, "... nor shall private property be taken for public use without just compensation." The framers of the Constitution included this clause as a safeguard to property owners in recognition that the government would at times have a public need for private property, but at the same time assuring property owners that they would be paid for its’ taking.

Property owners have long realized and accepted that the government has this power. Most property owners although distressed are not surprised that the government can force a sale of their property if the property lies in the path of a proposed public highway or public building.

In response to a US Supreme Court ruling a few years ago, States began enacting laws to further define and limit the abuse of eminent domain. Florida was the first state in the US to pass such legislation.

Let's look at Florida's eminent domain law - which became effective this year. I highly encourage you to read the law - especially any of you barristers out there. Please feel free to comment to this post.

In short, the law:

"Prohibits the transfer of private property acquired through eminent domain to another private entity with certain exceptions, including for use by common
carriers, public transportation, public utilities, or where the private use is incidental to a public project. Prohibits the use of eminent domain to eliminate blight conditions or to generate additional tax revenue. Authorizes the use of eminent domain under the Community Redevelopment Act if it is necessary to remove a threat to the public health or safety"

So, the law says you can't take private property and give it to someone else unless there are certain exceptions. Mainly, the law restricts taking property for private endeavors. But this is a street that will remain a street (not turn into a commercial project). I couldn't find anything in the law that said the street could not lead to a commercial businesses. After reading much of the law, my understanding is that a street would be allowed for eminent domain. Actually, the law seems to me to clearly allow this to happen. The city of Key West would have to compensate Truman Annex for the taking, but with my plan of gating and fencing along Southard Street, Truman Annex would still be a gated community (so far, the bulk of their damage claims comes from losing a "gated" status). Plus, the law provides for eminent domain for community redevelopment, which may or may not apply here.

Some commenters to this blog have attacked me and anyone who believes that eminent domain is a viable legal option.

For example, a commenter signed as Harvey J. Keck wrote

The issue is that the city does not have the necessary rational to succeed in this endeavor. 1. Bad faith in negotiations with a signed and enforcible agreement (with the issue of police powers removed). It looks very bad when the city unanimously signs an agreement (which they freely did) to obtain land and
then once it gets the land abrogates that agreement. What will the courts say
about that, I wonder? 2. Already existing public roads which allow access to the
property and are presently used for traffic both private and commercial.3. Recent Florida laws restricting eminent domain to further commercial development especially when there are alternatives already in place.4. The requirement for the city to pay for both sides of this legal dispute. (Where's the money for
this going to come from especially after the Duck Tours gets their payments).There are other arguments but these need to be addressed with legal arguments and not just fantasy rationalizations.

In response,

  1. forget the agreement. that has nothing to do with eminent domain. if it makes you feel better, you can believe you won the case and got the contract enforced. NOW THE CITY FILES EMINENT DOMAIN. THINGS CHANGE. If a municipality needs a street for the common good - the law says they can do it. and since it is already a street, they could simply seek an EASEMENT - and Truman Annex would still own the street and the public could use it as the City sees fit
  2. yes, we know about the streets. but it is up to the municipality to decide what is the best plan. and with a growing waterfront usage, Southard Street makes sense.
  3. You keep saying this is a commercial endeavor. But that doesn't sound right to me. The eminent domaining of Southard Street would KEEP IT A STREET. And it would be leading to a property that is 75% park. It would not be difficult for the City of Key West to prove that this project is for the public good.
  4. Yes, Harvey. We know. You're going to make the City pay. And pay big. Are you looking forward to making the citizens (AND YOURSELF) pay? I'm not so sure it will be as expensive as you warn - especially given my idea. Heck - What does an easement cost? And what if the Navy declares a need for an easement? Anyway, I don't think you know what any of this will cost. Bringing up the Duck Tours as a final salvo is lame. Your FEAR is not working on me.
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Anonymous said...

I know you're real proud of "your plan" but even it were feasible it would still be dividing a neighborhood into two, which would have an economic impact which would require reimbursement (not to mention the value of the land that the street sits on). Plus all of the cost (for BOTH PARTIES) of litigation. For what?

Explain to me just what the value is to the city for doing this? (Leave out "morale boost to all the TAMPOA haters".)

Nobody has yet described why this is even required, other than "narrow Bahama Village streets", but the one-way plan there has removed that concern.

I do believe the continued stirring of the pot is just a cry for attention...

Cayo Dave said...

anonymous - I think it has been abundantly explained what value it would be to the City for Southard Street to remain an open street.
For whatever reason, you are not getting the message.
Hopefully a judge will make it clear to you.

Harvey J. Keck said...

Sorry, you appear to be confusing easements with eminent domain. The city may seek an easement but the private entity is not required to grant it. In eminent domain the municipality takes the property and must pay market rate for it. By the way the Navy already has an easement for itself. You have not commented on the city's bad faith in which they obtained the land only by showing that there were no objections from the community. This included Last Stand, TAMPOA, and one other. The city came to agreements with all and thus obtained the land sans significant cost. They also have stated in multiple correspondences their intent to abide by the contract. Now they are seeking to abrogate said contract. In eminent domain there is an issue of bad faith. In this case they got the land by the agreement and now seek to get out of the same. The court overseeing an eminent domain suit will need to consider this and I fear that they will not look kindly at it. Contract law is not to be taken lightly and the courts in general do not.
The fact that the city can try to use eminent domain does not mean that eminent domain will be allowed by the courts. The courts recently refused eminent domain to a municipality in upstate Florida. Eminent domain is by no means a given.
The rational for the taking of the street is to further the marina, the assisted care facility, and other commercial ventures along with the park. The taking is to a real extent for commercial endeavors. Without the commercial endeavors there is little rational for the need to take the street as entrance to the park via Fort St. is obtained by just taking down the city owned fence.
Gates or walls controlled by the city is not the same as gates owned and controlled by the "gated community". That's just apples and oranges.
Once again the courts will decide this. Hopefully this will not be another example of "Bubba Justice in Key West".
You ought to read this book!

Anonymous said...

The commercial nature of the propsoed "park" is what bugs me. It's gonna be "Bubba's Gone Wild," out there. Who do you think will own the Truman Waterfront Casino? I'm guessing it will be Brewer.

Anonymous said...

> I think it has been abundantly explained
> what value it would be to the City for
> Southard Street to remain an open street.

That's not the question (and even if it were, there's nothing "abundant" about any "explanations" I've seen here).

The question is: "What is the value to the City of invoking Eminent Domain?" I've seen nothing in all the rants in your posts that shows any significant VALUE in taking this action. Just a bunch of COST.

What exactly would the city get in return for that cost? They sure wouldn't be getting significantly more access to the waterfront than TAMPOA already offered (but the City turned down).

During mediation TAMPOA offered FULL TWO WAY ACCESS all except late at night, when those few folks who might want to "cruise the park" would still have several other paths there if they felt compelled.

(Note that any OFFICIAL need for access through Southard late at night would also still have been available as required.)

The City turned down that offer. Is the need for a few people to be able to cruise through Southard late at night worth all that money?

Oh wait, I just remembered -- YOU won't be paying it, since you don't pay property taxes. I guess it's okay to spend OTHER people's tax money on such frivolities...

Cayo Dave said...

The only reason that this will cost the city the exorbitant amount you threaten, anonymous, is that TAMPOA is aiming for the city wallets.
You ask what the city may gain? It is the full use of its streets. Seems quite reasonable to me.
And though I don't own real estate in town, I have an interest in Key West's future.
It is elitist pricks like you that the City most needs to battle.
Either way - this whole arguement is probably moot as the Navy/US Government (remember, the other party that TAMPOA is suing) can make a clear case for eminent domain. They don't have to be awarded the ownership of the street, nor does the City. The courts should simply award an easement - something permitted in eminent domain. TAMPOA will still own the street and the Citizens, Navy, Tourists, and EVERYONE will be able to enjoy what they have already been enjoying...for 100 years!
Oh, one more thing - what makes you think that people wanting to go to the waterfront at night is to be prohibited? Are you that paranoid of the population. Has the FEAR consumed you?

Anonymous said...

As usual, you twist around what's being said and use hate-speach (accusing those who disagree with you of being "elitist pricks") to deflect providing a real answer.

"Giving the city clear use of its streets" isn't an answer. They don't own Southard Street, it's not their street to "clearly use". Just like the parking lots at Casa Marina aren't the city's to use as they wish, just like Roosevelt Annex's entrance street isn't thiers to use as they wish, just like Peary Court's streets aren't theirs to use as they please. The property belongs to someone else.

You still haven't spelled out what value the city will get back for spending all the eminent domain money. I have a feeling that's the best you can do...

Note that the Navy ALREADY has an easement on that stretch of Southard and TAMPOA has made no effort whatsoever to attempt to remove it. TAMPOA has been more than forthcoming in dealing with both the Navy and the City. It's the City that has reneged on their agreements.

Regarding "prohibiting" people from going to the waterfront at night, TAMPOA has made no such demand. Just that the other entrances be used rather than TAMPOA's private street. Reasonable people don't have a problem with that..

Anonymous said...

> The only reason that this will cost the city
> the exorbitant amount you threaten,
> anonymous, is that TAMPOA is aiming for
> the city wallets.

Come again? The only reason it will cost that is if the city attempts to take over TAMPOA's private property. That wouldn't be TAMPOA's fault (unless one beleives that they should just "give away" their property). Clearly it's THE CITY that's aiming for people's wallets, if they take that action.

Anonymous said...

Wow. A friend just told me to read all of this because she knows that I worked on an Orlando eminent domain case in my youth. (I was not the lead attorney but I did a lot of the research.)

You guys have written a lot. Some good ideas and some good info.

OK. Here's my take. This is not really a problem anymore. The Navy has an easement. Ft. Zach has an easement. Clayton Lopez already has a new and improved traffic plan for Bahama Village that is already approved and is about to be fully implemented.

It is easier for the Commission to just let the City lose in court. That way they never have to vote on it. I doubt that the City would appeal a loss and the City certainly won't try eminent domain.

Eminent domain would lose immediately. The Navy required an economic transfer. Florida law prohibits eminent domain for private economic gain. As long as there are going to be things like marinas and shops and the housing and markets that Bahama Village wants, the street can't be taken by eminent domain under current FL law. (Maybe it could be taken if it were just a park only.)

I have read the comments on bad faith and on alternative access. Those arguments appear somewhat valid too but I would have to physically see how easy access would be from other streets. Is it just a fence blocking it now? If so, and if the City can just take down the fence...pretty much end of story.

You're not suppossed to take away private property if you don't absolutely need it. It's un-American to do so.

The only remaining issue is the assisted living guys. Someone wrote Brewer & Co. Pretty funny. Brewer and Swift will probably not get the "assisted living" center anyway. (Assisted as in ...I'm loaded and I have a maid and a chef.)

I think it would have to go to a referendum of the voters. I don't know anyone who will vote to have healthy active retirees in million dollar condos on the park land.

To me, it looks like the City will ultimately get a court order to honor the original contract. The good news is that it doesn't look like access is a problem anymore since Lopez got the new traffic plan approved for BV.

Cayo Dave said...

Eminent domain would lose immediately. The Navy required an economic transfer
I'm not certain, but I think that only part of the Truman Waterfront property had an economic conveyence clause attached to it - the 6 or so acre parcel that will be the Bahama Village market/cultural project.

Anonymous said...

You make an interesting point. If you have the Navy language post it here and I'll take a look at it. A different hurdle would be the other roads. FL's new eminent domain law is meant to protect against abuse from "big brother". If there are viable alternatives, such as another road that could be used for access, then the government is not suppossed to take private property. I understand why you don't like it in this particular case, but overall, it's a good, progressive law. Back on the other point, if you have the Navy language, I'd be interested in reading it. If it applies to only part of the acreage, an case could be made.