Polk Considers Eminent Domain to Get Water: The (Lakeland FL) Ledger, 6/16/05

County officials seek five-acre lots for much-needed wells, but don't know if they can force landowners to sell

By Mike Grogan

The laundry list of needs in this fast growing region is a long one.

It includes new roads to accommodate the huge increase in traffic, more schools for the children of the families that are moving here, a series of wells to provide the water for all the new homes and businesses, and quality-of-life necessities such as parks and libraries.

Paying for the amenities to support past growth or to meet the needs that new development brings is an issue that all the counties in Four Corners are trying to solve — with varying degrees of success.

But money isn't the only issue. There is also the matter of acquiring the land that is necessary -- land to pave over for roads or on which to build schools, libraries and parks, and land to drill through to get to underground water sources. With rural and agricultural lands disappearing quickly to the developers' bulldozers and graders, property values throughout Four Corners are skyrocketing, making it more and more difficult to set land aside for public purposes.

Local officials have a tool at their disposal that is used sparingly to acquire the needed land. It's called eminent domain, and it allows county governments and municipalities to take privately owned property to use for the public good.

But Linda McKinley, the deputy county attorney for Polk County, said recently there are rules that put restrictions on governments by limiting their ability to use eminent domain powers to take a citizen's property.

"To use eminent domain, it must be proven that there is a compelling public purpose to acquire the land," McKinley said.

In the past, she said, Polk County has used eminent domain to condemn property for road construction and drainage purposes, both of which have been accepted by the courts as a public purpose that supercedes personal property rights.

"You can condemn for parks, recreation and schools, too," McKinley added.

The question came up in recent weeks as to whether eminent domain could be used to acquire land necessary to site wells in northeast Polk County where the county's severest irrigation restrictions are in place because of the strain growth has put on the water supply.

County Commissioner Paul Senft and the county's water resources manager, K.V. Duke Clem, have said past promises to provide new wells in the area have had to be put on hold because of the difficulty of finding property to put them on.

"The problem is getting landowners to let go of the land for the wells," Clem said at a water resources meeting recently held in Four Corners.

With property values increasing as they are, he added, owners are unwilling to give up the five acres it takes to sink and maintain a single well. That led to the question of whether the county's powers of eminent domain could be used to acquire the land. Clem said he didn't know if that is a proper use of eminent domain.

"I've never seen one (condemnation) done for a well," McKinley said. "That doesn't mean it couldn't be done."

The major issue, she added, is whether the well could be just as easily located elsewhere than on a specific piece of property.

"You have to prove a reasonable necessity for that particular spot," she said, citing the law governing the use of eminent domain.

There is little question that providing a water supply is a viable public purpose, McKinley said. The question is, what makes one well location more essential than another.

That is not the issue when it comes to siting such things as schools, roads or parks, all of which are pretty much area-specific in that they serve certain neighborhoods or districts.

Jay Wheeler, who holds the District One seat on the Osceola County School Board, said he is all for the use of eminent domain for acquiring land for much needed schools. Osceola County, he said, is growing so fast that 29 students — one full classroom — are being added to school rolls each day. That is making it difficult to build schools fast enough to accommodate the influx of new students.

"I don't want to displace folks who live (on their property)," Wheeler said. "But if it makes sense to put a school in a certain location, I don't want to get what (price) they decide to give us."

The "they" he was referring to is developers who often set aside land within their development for new schools. Poinciana developer Avatar, Inc., for instance, is well known for donating land for public purposes such as schools.

"I've never seen a case of eminent domain in Poinciana," said Jeanette Coughenour, manager of the Association of Poinciana Villages. "The developer always seems to come through when something is needed."

Coughenour said one problem with the use of eminent domain is that it often results in litigation by the property owners.

Another of the rules of eminent domain is that in order to take a property, the government must pay a fair market price to the owner. Just what is the fair market price for a specific parcel is often disputed by the property owner, Coughenour said.

"That tends to take a long time," she said. "You don't want to be tied up in court all the time."

Counties often find other ways to get the land they need for certain projects. In some cases, such as the building of new roads, governments will negotiate with property owners in order to reach a price that is equitable to both rather than use eminent domain. That, said Osceola County Commissioner Atlee Mercer, is the case in the planned construction of the Poinciana Parkway, the road that should provide a much-needed additional exit point from the sprawling community of 52,000 that spreads over Osceola and Polk counties.

In other cases, such as the road in Polk County now being called the Green Swamp Trail, visionary planning in the past provided much of the land the two-lane road, which will run somewhat parallel to U.S. 27 and ease traffic on the four-lane highway, will use.

The Green Swamp Trail was planned by the county years ago before the abundance of subdivisions were build to the west of U.S. 27. Foreseeing the amount of growth that was expected to come to the area, Polk County made it a requirement of developers to set land aside for the roadway before their construction plans were permitted.

So the land is available to the county when it decides to build the road to run from the Polo Park neighborhood just south of the Polk/Lake county line south to Deen Still Road and possibly be continued farther south to where the Posner development is being built in the area once known as Baseball City.

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