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Abbott’s Frozen Custard victim of eminent domain


If you are one of the devoted fans of Abbott’s Frozen Custard, a century-old New York creamery with a couple of shops in Florida, you may soon have trouble getting your regular fix of the tasty cold treat.

The Vero Beach shop, a franchise, could lose its home on Route 60 at 43rd Avenue next spring after the Florida Department of Transportation exercises its power of eminent domain on the property where the business is located.

Thick frozen custard, made with a special machine and denser than traditional ice cream, has a cult of loyal fans, especially among transplanted residents of Rochester, N.Y., the site of the original Abbott's.

In addition to the yogurt shop, a bank and STFU Holdings also will be impacted by the eminent domain taking, which was approved by Nineteenth Circuit Court Judge Paul Kanarek on Aug. 29, after the state announced its intention in mid-June.

Abbott’s, a tenant of STFU Holdings, was provided a nine-month extension to continue operations on the property.

The parties are now in the process of determining if it will still be possible to do business once the land is taken, according to real-estate lawyer Mickey Barkett, who is representing the building owner in the negotiations.  Considerations such as space for parking, landscaping, outdoor features like patio seating or a drive through must be taken into account.

In response to the state’s petition for the land, lawyers for TD Bank, STFU Holdings and Abbott’s argued that the state’s construction plans had not been made clear, that it wasn’t obvious the proposed project is necessary for the public good, and that the estimated deposit amount to compensate them for their property was not a valid appraisal.

“(Abbott’s Frozen Custard) has been in continuous operation on the property sought to be acquired for a period of more than five years,” Orlando-based attorney Felecia Ziegler wrote the court. “The proposed taking will severely damage or destroy the business.”

Despite those objections, Kanarek said it appeared the state had given appropriate notice to the defendants and others claiming interest in the property. The Florida Department of Transportation exercised its authority properly and its estimates were made in good faith based on a valid appraisal, he said.

Indian River County has long planned to expand the intersection, said Deputy County Attorney Bill De-Braal. The project got delayed during the recession, but now that funding is available, it is moving forward again. 

There will be additional turn lanes, through lanes and a widened bridge over the main relief canal that will improve the flow of traffic, DeBraal said.

Eminent domain takeover is relatively rare in Indian River County and can be contentious, according to DeBraal, who is closely following the land transfer. There have only been a handful of cases in the last decade, when property was needed for infrastructure and road improvement projects, he said.

“[Eminent domain cases] are some of the only cases beside a capital murder case that necessitate a 12-person jury,” DeBraal added. “It’s a very important matter when the government takes the property of private citizens and the court ensures that they are afforded as much due process as possible.”

Condemning authorities have broad discretion regarding what property is necessary for the public good, Marcie McDonie, an attorney for the Florida Department of Transportation argued in an August memorandum to the court supporting the takeover. 

Adjudication in the case so far includes a stipulation that a $567,700 deposit be made with the Registry of the Court to secure any compensation entitled to T.D. Bank for 2,403-square-feet of its space. An additional $298,100 deposit will be made for 3,102-square-feet of STFU Holdings’ space.

During a second legal phase, the businesses have the right to challenge the deposit amounts set by the state and seek additional compensation. If an agreement can’t be made through a settlement or mediation process, the issue will go before a jury.