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Eminent Domain

DOT sued for clearing, paving on land residents claim to own

By October 13, 2009No Comments

DOT Clearing

Two Islamorada property owner are suing the Florida Department of Transportation and the Village of Islamorada for allegedly taking their land for a road widening project without consent or compensation.” —  by David Ball

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This article presents a classic “inverse condemnation” scenario.  Inverse condemnation occurs when a governmental authority with the power of eminent domain “takes” private property without formally using its power of eminent domain.

An inverse condemnation taking does not occur until a judge hears the evidence presented by a landowner and decides whether the government has violated the landowner’s constitutional property rights.  Inverse condemnation takings arise under one of two scenarios.  First, a taking always occurs when a landowner can prove that the government has physically invaded their property.  Second, a taking may occur if the government regulates a piece of property in such a way that it no longer has any beneficial use.

If the Sands can prove that the Department of Transportation cleared and paved their private property without paying them for the right to do so, then the Sands can compel the Department to pay them for the land.  If the Department chooses to remove the paving and restore the land, then the Sands would be entitled to compensation for the time that the department occupied their property.

Once a landowner proves to a judge that they are entitled to compensation, the case then proceeds to a trial by jury in order to determine the amount of compensation.  In such a case, the landowner would be entitled to recover the attorneys fees and costs incurred in proving that their land was taken.

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