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.
- 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
- 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.
- 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.
- 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.