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Eminent Domain and the Taking of Private Land by Governmental Entity - Term Paper Example

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Eminent Domain Part I: Discuss the rights of citizens in Florida under the Florida Constitution when their property is taken by a governmental entity, and explain why and how the property owner is entitled to be made whole.  In doing so, distinguish when property is taken by police power, and when it is taken by eminent domain…
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Download file to see previous pages Brigham, that the right to own property and to possess it is a valuable and protected right. It is within this context that the right to made whole is interpreted. In making the owner whole under eminent domain, the courts must not confine quantification of damages to mere compensation for the value of the property. The courts must also take account of the expense that the proceedings will undoubtedly put on an unwilling private owner. It therefore follows that in making the owner whole, the government must take responsibility for all costs incurred by the owner in challenging the proceedings and proving damages.3 Therefore the significance of the right to own property is reflected in substantive and procedural laws that accompany eminent domain. As demonstrated in the Dade County ruling, the mere taking of property with compensation for the value of the property will not amount to just compensation. Compensation understandably must put the owner in the position that he or she would have been in but for the takings. This means the expenses that the owner is forced to undertake pursuant to the takings’ proceedings must be accounted for. Thus the constitutional basis of property rights is supported by the property owner’s right not to be deprived of his or her property without due process. Specifically, Article 1, Section 2 of Florida’s Constitution provides that “no person shall be deprived of life, liberty or property without due process of law”.4 Due process has been established to mean that the individual in question shall be accorded the opportunity to be heard and to challenge any intended action to deprive the individual of his or her private property.5 Thus procedural fairness is required in the deprivation of private property under Florida’s Constitution. Therefore reasonable notice and the administration of justice via a fair hearing are prerequisites for the taking of private property by the state in Florida pursuant to Florida’s constitution. Procedural due process however, can have different implications depending on the legal context. This is because procedural due process is tied to substantive due process.6 The connection between procedural fairness and substantive fairness lies in the general imposition of the right to challenge governmental taking of private property.7 Procedural fairness refers to the process that official must follow in depriving a citizen of his or her property. In this regard, the degree of procedural fairness typically corresponds with the severity of the proprietary right at risk. Substantive fairness proceeds on the basis that the law permitting deprivation of property is constitutional and presumes that any law that encroaches upon human rights is unconstitutional and therefore not valid.8 Deprivation of property conceivably invokes two different legal contexts, both of which can be deemed serious proprietary rights: police powers and eminent domain. Police powers refer to the right of states to legislate for the protection of safety, health and morals.9 Thus police powers do not technically deprive the individual of his or her property, but rather deprives the individual of the right to use his or her property as he or she sees fit.10 Police powers are typically associated with ordinances and regulatory frameworks relative to zoning, building codes, health/safety standards, rent controls and city planning.11 These police powers are ...Download file to see next pagesRead More
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