Property Rights Have Their Day in the Sun
The fundamental right to own property has been set forth in the United States Constitution, enumerated in the Bill of Rights, and has been given added meaning and protection for the citizens of Florida through Florida’s Constitution and Statutes. Now, property rights have had their own day in the Florida sun.
This past week the Florida House, Representative Frank Attkisson offered House Resolution 9157, officially declared April 24, 2008 to be “Property Rights Day” in Florida. The House, through the Resolution recognized that property rights are “inalienable human rights which provide the foundation for individual freedom and individual economic opportunity” and are “integrally linked to the social and economic welfare of the State of Florida.”
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Fly Your Flags
A number of bills are making their way through both chambers which protect Floridians’ rights to display not only the United States Flag, but also the State Flag of Florida, the flags of the branches of the armed forces, and the POW-MIA flag. The protections sought by some of the bills are against rule-minded homeowners associations and management companies from dampening the spirit of homeowners and their ability to show their colors (SB 857). The “Florida Flies the Flag Act,” sponsored by Senator Burt L. Sunders, takes aim at counties and municipalities and would prevent them from enacting ordinances against the display of the United States flag and also prohibit any requirement of a permit or the payment of a fee to fly Old Glory.
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Protection For Cemeteries From Eminent Domain
Legislation has taken shape this session which proposes to limit the ability of government to take cemetery lands via eminent domain. Senate Bill 1308 (Michael S. Bennett) and House Bill 853(Baxter G. Troutman) both provide that, except for road system, transportation corridor, or rights-of-way purposes, a taking entity may only acquire an acre or more of land dedicated for cemetery purposes where it determines through a public hearing that there is “no reasonable alternative” to the taking.
While this seems to raise the bar on the standard for a taking via eminent domain, the broad exceptions and the size requirement of the taking would seem to limit the practical application to a fairly rare set of circumstances.
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Electric Utilities Gear Up For Expansion
In a widely-sweeping bill formally introduced in the Senate earlier this month, electric utility providers in Florida are seeking measures to streamline the processes by which they acquire real estate and permit power plants and related facilities, including power lines and natural gas pipelines. Senate Bill 1506, sponsored by Senator Mike Bennett, includes provisions that:
- place strict deadlines upon the circuit court to hold Order of Taking Hearings and issue Orders of Takings in condemnation cases where the power of eminent domain is used to take property for power plants and associated facilities (including power lines and other associated facilities);
- delegate the authority to grant easements over state lands for natural gas pipelines and power lines to the Secretary of the Department of Environmental Protection and/or the governing board of the water management district;
- set forth compensation schedules for the acquisition of property for natural gas pipelines and transmission lines in terms of property exchanges (1.5 times the land area in exchange for an easement- 2 times the land area for fee simple title), or in terms of cash (fair market value plus one half the cost savings associated with traversing state lands versus other alternatives);
- allow for advanced permitting for facilities associated with nuclear power plants prior to certification of the plant itself.
This legislation has been proposed in advance of several significant electric utility projects slated for the state. Progress Energy recently announced plans for about 200 miles of additional power lines to be in service by 2016 located in west central Florida. Much of this additional capacity is designed to accommodate the proposed $17 billion nuclear power plant being planned for Levy County. Tampa Electric Company has also announced the need for 100 new miles of lines in the greater Tampa Bay area over the next five years.
Additionally, Florida’s Public Service Commission recently approved a petition by FPL for a determination of need for two new nuclear units at its Turkey Point facility in Miami. The two new units are projected to come online in 2018 and 2020, and will generate enough power for approximately one million average residential homes.
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Harris Act Legislation Takes Shape
As posted back in January, Tallahassee lawmakers are now moving forward with legislation which would provide needed strength and clarification to the Bert J. Harris, Jr., Private Property Rights Protection Act. Identical versions of the bill were filed in both the House and Senate. House Bill 881 was filed on February 8, 2008 by co-sponsors Representative Stephen L. Precourt and Representative Dean Cannon, with the Senate version filed two days before by Senator Carey Baker. Both bills have been referred to committee with the House Bill receiving a first reading March 4, 2008. In addition to a number of technical corrections, key revisions to the statute include:
- a reduction of the notice period an owner must give the government from 180 to 120 days before filing a Harris Act claim in circuit court;
- an increase of the statute of limitations from one (1) to two (2) years after application of the regulation;
- a clarification of what constitutes the “application of a regulation” to property;
- a clarification on the extent of the State’s waiver of sovereign immunity for claims brought under the Act, conforming the statute to recent judicial interpretation;
- inclusion of governmentally-imposed development moratoria extending over one (1) year as actionable under the Harris Act.
Cargo law may violate property rights
FORT PIERCE — A citywide ordinance limiting the height of cargo containers to no more than 30 feet could be violating the property rights of the owner of the Port of Fort Pierce.
The city's Code Enforcement Board found King Maritime Group, owner of the Port of Fort Pierce, which does business as Indian River Terminal, in violation of the ordinance at a Feb. 13 hearing.
Indian River Terminal was stacking cargo containers four high and has 30 days to remedy the violation or it could face a $250-a-day fine.
Attorney John Little of Brigham Moore LLP, who represents King Maritime Group, said he would challenge the fairness of the city rule in circuit court.
The city adopted the ordinance Oct. 15 restricting cargo containers to no more than three high or 30 feet. Prior to the ordinance, there were no height restrictions on cargo containers, Little said. At the time the law was passed, Indian River Terminal was stacking cargo containers to a height of four high.
Because the company was there before the law, the city's code allows "non-conforming" uses to continue, Little said.
"In an effort to avoid or minimize property rights claims when a new ordinance goes into effect, many governments have established grandfather provisions in their codes to allow that non-conforming use to continue," Little said. "Here, the city failed to follow its code and is forcing the owner into further litigation in order to protect their property rights. "
Excerpted from TCPalm, Feb. 28, 2008
Full article by Alexi Howk
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Proposed Legislation Would Strengthen Florida's Harris Act
Originally enacted in 1995, the Bert J. Harris, Jr., Private Property Rights Protection Act (codified as Chapter 70, Florida Statutes 2007) provides landowners a statutory remedy for government regulation of real property that may act to “inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution …” A bill proposing to clarify and strengthen the Harris Act has been drafted and is being circulated for consideration during the 2008 Legislative Session in Tallahassee. In addition to a number of technical corrections, key revisions to the statute include:
- a reduction of the notice period an owner must give the government from 180 to 120 days before filing a Harris Act claim in circuit court;
- an increase of the statute of limitations from one (1) to two (2) years after application of the regulation;
- a clarification of what constitutes the application of a regulation to property;
- a clarification on the extent of the State’s waiver of sovereign immunity for claims brought under the Act, conforming the statute to recent judicial interpretation;
- inclusion of governmentally-imposed development moratoria extending over one (1) year as actionable under the Harris Act.
Legislature Seeks To Protect Homesteads Acquired by Eminent Domain
The Florida Legislature is considering expanded statutory protection for homestead property acquired by government agencies through eminent domain.
The bill, if enacted, would require a condemning authority to separately determine, and a jury to consider as a component of full compensation, the present value of the future tax benefits provided under Section 4(c), Article VII of the State Constitution. Commonly known as the “Save Our Homes Cap” this amendment provides Florida homeowners with substantial protections and savings from rapidly increasing property assessments and taxes. At least one Florida circuit court judge has held that this benefit is compensable as a component of the constitutional requirement of full compensation. The proposed bill would provide statutory assurance that a homeowner does not lose this constitutional “Save Our Homes” benefit due to a government taking of their homestead property.
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Property Rights Pact Forgotten?
Last year, Florida went on record in support of private property rights protection, passing one of the most comprehensive eminent domain reforms in the country. As a result, eminent domain cannot be used by community redevelopment agencies to take property from one private owner and give it to another in the instance of "slum" or "blight." A constitutional amendment also passed prohibiting the use of eminent domain to accomplish any private-to-private transfer of ownership and control unless approved by a three-fifths vote of the Legislature.
Now, just one year later, the Legislature is on the verge of giving money to government to do what it said last year should not be done. The question is: Will our legislators stick to their guns on private property rights?
Senate Bill 432 is a proposed appropriation bill that on its face seeks to fund seaport projects that improve moving goods and people to enhance global trade at Florida's 14 deepwater ports. These monies will come from the redirection of $10 million annually from vehicle registration fees or revenues outside of those generated by the ports themselves. The problem is that, unless modified, the legislation would enable seaports to use funds in eminent domain for private-to-private land takings, and we know at least one would.
The Jacksonville Port Authority is in fact currently pursuing a condemnation lawsuit to take approximately 65 waterfront acres from Keystone Coal Company, just to lease it to a competitor, Drummond Coal Sales, Inc. Jaxport, like many public port authorities, is a "passive landlord port," meaning it does not operate facilities leased to others. Of further note, Jaxport's revenues are not put back into the general revenue funds of the community, but instead are used to fund further port expansion as part of "economic development." Is this an example of how state funds should be used? Is "economic development" really accomplished by government choosing one private entity over another who through private ownership sought to do the same thing?
Florida Voters Protect Property Rights
On November 7, 2006, Florida voters responded to the recent assaults on private property rights by several local governments as well as the Supreme Court's now infamous "Kelo" decision with a resounding approval of a constitutional amendment which provides greater protections for private property rights in the face of eminent domain.
"Amendment 8" passed with a yet-to-be official 69.1 percent of the total Florida vote, and by at least a simple majority in every single Florida county. Amendment 8, which will apply to potential takings initiated on or after January 2, 2007, modifies Article X, Section 6 of Florida's Constitution and requires a supermajority approval from each house of the Florida Legislature before property may be taken via eminent domain and conveyed to a private entity.
Florida was not alone in the charge to restore private property rights. Citizen voters in eight other states also approved ballot measures and initiatives protecting private property rights by limiting government's power to take homes and businesses. Constitutional amendments in states such as Georgia, Michigan, South Carolina and New Hampshire passed with majorities exceeding 80 percent, clearly sending a message to the government that takings for economic development will not be allowed to continue unchecked.
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