Florida Eminent Domain Law Blog

Today, the U.S. Supreme Court will hear argument from Destin beachfront property owners regarding the City of Destin and Walton County’s beach restoration project. In 2003, Destin and Walton County officials proposed a plan to pump sand onto a 6.9 mile stretch of land in Florida’s Panhandle, indicating the renourishment was necessary due to the region’s impact by recent hurricanes. The officials looked to Florida’s Beach and Shore Preservation Act, which would allow a change to the boundary line between the submerged public lands and the owner’s waterfront property. Essentially, rather than using the Mean High Water Line (MHWL), the FDEP established a new standard, the Erosion Control Line (ECL). The ECL is a fixed boundary which once established would allow all sand pumped on the sea side of the line to denote state-owned land. As such, the beachfront private property owners would lose the right to claim any accreted land seaward and their property would become a mere waterview as opposed to a waterfront property. The Beach Renourishment application was challenged by two property owner groups (Save our Beaches, Inc. and Stop the Beach Renourishment, Inc.)

In 2008, the Florida Supreme Court ruled 5-2 against the property owners, ruling that the State has an obligation to maintain Florida beaches “in trust for all the people, “ and the ECL designation did not constitute a taking of private property.

The essential question facing the U.S, Supreme Court is whether the Florida Supreme Court’s ruling and reversal of 100 years of Florida property law that littoral rights are constitutionally protected, amounts to a judicial taking of property without just compensation.

Photo credit: www.destin-fwb.com - Beach Restoration in Progress, Eastern Destin

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 In the 2009 session the Florida Legislature, via joint resolution of the House and Senate, proposed an amendment to the Florida Constitution which would eliminate the last alien land law remaining on the books in the United States of America. To do so, the Legislature seeks to place a proposed amendment on the next statewide ballot to eliminate an antiquated constitutional provision which allows the legislature to regulate or prohibit the ownership, inheritance, disposition, and possession of real property by aliens ineligible for citizenship.

The pertinent section of the Florida Constitution comes from Article I, the Declaration of Rights. Section Two therein sets forth Floridians’ basic rights,

 

“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.” (Emphasis supplied).    

 

The Joint Resolutions (SJR 314 and HJR 203) propose to eliminate the highlighted language. According to the legislative staff analyses accompanying the Resolutions, most alien land laws had been found unconstitutional in the United States by 1960, with Wyoming, Kansas, New Mexico and Florida the last of the states with such provisions. Between 2001 and 2006, Wyoming, Kansas and New Mexico repealed their respective alien land laws. Because Florida’s alien land law is part of the state constitution, the Legislature may not simply repeal the measure; rather the Florida Constitution must be amended. This will be the second attempt at eliminating this language from Florida’s Declaration of Rights, a similar measure (Amendment 1) failed to achieve the necessary majority of sixty percent in November of 2008.

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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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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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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?
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MY VIEW
By Election Day, politicians will have expended extraordinary efforts to make sure voters remember their faces as the best candidates. However, as Floridians consider their vote on Amendment 8, which would restrict the use of eminent domain for private-to-private transfers, there are other faces that should be remembered.

Eminent domain became the talk at the dinner table and around the water cooler after the U.S. Supreme Court ruling in Kelo v. City of New London. People realized government's use of eminent domain was forcing owners to give up their properties for use by other private entities, on the pretense that such a taking furthered the community's economic development.

Though private-property ownership is protected as a constitutional right, the only way to protect this right is to limit the government's power of eminent domain.

When considering Amendment 8, one face to remember is that of Tom Scholl, a self-made coal industry entrepreneur and owner of Keystone Coal. For eight years, Scholl endured many setbacks as he attempted to secure property along the St. Johns River in Jacksonville. He made every attempt possible to lease an alternative site from the Jacksonville Port Authority. Finally, he purchased a property that Jaxport has passed up twice before.

Despite the fact that Keystone had purchased the 60-acre parcel, Jaxport negotiated a lease with Drummond Coal, a competitor. Does this seem fair? Then it filed for eminent domain based on its mission to be "an economic engine." Moreover, Jaxport officials indicated their desire that all property along the St. Johns River be in public, not private, ownership. Without constitutional limitation, Jaxport has the power of eminent domain to make that possible.

Tom Scholl is fighting Jaxport's lawsuit to take away his property, and it will be up to Florida's courts to interpret the constitution to protect property owners from takings in the name of "economic development."

However, Floridians will also have a chance to clarify constitutional intent by voting for Amendment 8, which is endorsed by Gov. Jeb Bush and the Legislature. Amendment 8 will require a three-fifths vote of the Legislature before eminent domain is used by state or local government to force a private-to-private transfer of private property.

Voters should remember the face of Tom Scholl and others whose private-property rights have been trampled as they vote on this important amendment.

The full text of all proposed amendments can be found here

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When the United States Supreme Court ruled in June of last year that the City of New London, Connecticut could take Suzette Kelo's home, demolish it, and turn her lot over to a private developer, many Americans recoiled in anger and disbelief. The 5-4 Supreme Court decision, Kelo v. New London, essentially held that a community redevelopment plan for an older area which provided economic stimulus for the over-all community was a legally defensible reason for the exercise of the power of eminent domain. The Court held that the purpose of economic development is sufficient to permit a forcible taking of private property, and meets the Public Use requirement of the Fifth Amendment to the U. S. Constitution.

The resulting national controversy over such governmental takings (called eminent domain or condemnation) has focused on the plight of private owners in the path of urban renewal. Yet as serious as this recent development is, and as wide-spread as takings for economic development have become, there is a broader, even more significant issue which the Kelo decision suggests. Many of our federal courts have gradually, almost imperceptibly, moved to the position that a citizen's right of private property, protected expressly by the Fifth and Fourteenth Amendments, is not a fundamental right. Kelo is clearly indicative that an institutional mind-set has emerged with many courts that private property is a lesser, inferior right than the other civil rights guaranteed by our Constitution's Bill of Rights.

What is at stake is the issue of, which of our rights are deemed fundamental? More than you may think. When a court labels a citizen's right as fundamental, any judicial inquiry into an infringement or injury to that right by governmental action is very protective of the citizen. For example, if a public employee criticizes her governmental boss, that employer may feel the urge to quiet the criticism by regulation or retaliation. The employee's job may even be at risk. Under our Constitution however, that employee's right to freedom of speech - which includes the freedom to criticize - is protected by law. In short, the burden is on the government to prove to the court that the restriction of speech is absolutely necessary for the public health, safety and welfare.

The situation is markedly different, however, when the citizen's right is deemed non-fundamental. A city may suddenly decide that it is weary of constant growth, and that no lot owner could, henceforth, build on his/her private lot without a prohibitively costly impact fee. Any challenge to that law in court could, at least in federal court, be held to affect a mere economic right, and not a truly fundamental one. In that event, the court would give great deference to the city, and only over-turn the regulation if it were obviously arbitrary or unreasonable and bore no substantial relationship to a legitimate state interest. The burden of proof would thus be on the complaining citizen; and the burden would be great, often insurmountable. The difference between the two labels (fundamental or non-fundamental) may well determine who wins the challenge to the governmental action.

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