by Sean McManus
Staff Writer
When the Department of Transportation decided it was going to build State Road 9A, the proposal called for the southern route to run straight through the Skinner family tree farm. A major project, the highway would divide the farm into two parts, basically terminating the operation on the western portion. To complicate matters, the Skinners had a serious cachet of irrigation pipes that fed trees with liquid fertilizer and water, all of which would be severed by the new road.
In the United States, like most countries, the government has the right of “eminent domain,” meaning that it has the power to take private land for public use. It does, after all, have to acquire land to continue its vital and necessary functions, like schools, roads, utilities, parks and government buildings. And in a state like Florida, where almost 5,000 new permanent residents move to every week, it is especially urgent. “Eminent domain is not found in any written constitution,” notes Jacksonville eminent domain lawyer David Foerster in a 1986 article in Florida Realtor, “but arises from the existence of the state as sovereign.”
However, the protection of private property rights was one of the foundations on which this country was built. And both the federal and state constitutions guarantee, Foerster continues, “that no citizen can be deprived of his property without the due process of law, nor without the payment of full compensation.” And that is what distinguishes the U.S. from the rest of the world.
“Not just fair, or decent, or reasonable, but full,” said Foerster, whose law practice, Foerster, Isaac, and Yerkes on Atlantic Boulevard, revolves around representing land owners who have their property taken by the government. “Usually, our role is not to prevent the land from being taken. We just want to ensure that the owner receives full compensation when it is.”
Foerster worked for almost four years on the Skinner land deal, piecing together a case that included an appropriate value for the land being taken, severances based damages caused to the east side of the property by the road on the west side and business damages based on the money the Skinners would have made, had the land not been taken.
By the end, Foerster won $1.8 million on land originally valued at $1.2 million. And the state offered $130,000 for the business damages, but Foerster recovered nearly $3 million for the Skinners, plus interest on that money for the years the case was in mediation.
Not only that, but in Florida the government is required to pay the attorneys fees plus the entire cost of defending the case, including surveying, engineering, accounting, real estate valuation and any other experts the owner may use to assert his claim for full compensation.
A few years ago, Foerster conducted a study on how Florida related to other states in terms of what he considered fair in matters of condemnation. The conclusion was that Florida has one of the most equitable and fair procedures in the country when it comes to eminent domain.
“So people can feel pretty good about fair treatment when they are represented by competent counsel,” said Foerster.
Bruce Page went a step further. Page is the attorney for the City who handles eminent domain cases and often finds himself on the other side of the table from Foerster. Page said unequivocally that “Florida is the most generous state in the union when it comes to eminent domain.”
Page is from Iowa where a panel of property owners determine compensation in cases of eminent domain and land owners who put up a fight are responsible for their own lawyer’s fees. In contrast, Florida attorneys make 33 percent on the overage that is gained from the original valuation. For example, if the City values a piece of land at $100,000 and the attorney recovers $150,000, he makes 33 percent of $50,000 in addition to normal fees.
When the City wants a piece of land, an initial inquiry is made through Pat Brown, chief of the City’s real estate division. And that process, Page said, is not always easy.
“Many times, there are several owners, some of which are in Jacksonville and some are not,” said Page. “And they don’t always agree on which move to make.”
Regardless, from fiscal year 1997-1998 to the present, the City acquired almost 3,000 “parcels” from private sources, or about 7,300 acres. But that includes land where the owner never paid any taxes, so it reverts back to the City, who then disperses it among various agencies according to use. If the case gets to Page, that means Brown’s department couldn’t resolve it.
The Better Jacksonville Plan is ushering in a whole new wave of eminent domain disputes. The City condemned two pieces of property to build the new county courthouse, which are still in mediation. For one, the City appraised the land for about $800,000 but the property owners are claiming that it is worth $1.3 million, in addition to $8 million in damages to potential business. Another, Page thinks, will garner somewhere in the neighborhood of $4 million.
Foerster said that at times land owners will argue that if they only had another five years for the economy to turn around, they would make a lot more on the sale.
“It doesn’t really work that way,” he said. “Valuation is based on the highest and best use at the time.”
Eminent domain law goes back to the year 1215 and the Magna Carta, which states, “No free man shall be taken or imprisoned or disceized, or outlawed or banished, unless by the lawful judgment of his peers or by the law of the land.” Disceized, in this context, means dispossessed of land.
And Forester said eminent domain is such an important law that in Florida it is the only other type of case, besides capital punishment, that requires a 12-person jury instead of six. All public agencies have the right to condemn land, from Florida Power and Light to the Florida Inland Navigation District to or any public school. Foerster said that it is rare that they will argue that the transaction shouldn’t go through in any form.
“Only when it’s a gross abuse of discretion,” he said. “Or if it’s arbitrary or unsafe.”
But generally, he said, the courts will not overrule the decision of the property-condemning agency.
When Foerster is picking a jury in eminent domain case the first question he asks is, “Do you think that the government can do no wrong?” When they say, “No,” he gets to work. A man’s home, after all, is his castle.