As a result of the ruling,Susette Kelo lost the right to remain in her home on her property. Due to the media attention surrounded this case, the city allowed her to physically relocate the house to a new property.

The home was saved to stand as a symbol for the national property rights awakening and the nationwide backlash against eminent domain abuse, resulting in judicial decisions, citizen activism, initiatives, and legislation in favor of property owners.

Since Kelo, two state supreme courts have rejected the decision as violating protections in their state constitutions.

Forty-two states have changed their eminent domain laws either through citizen initiative or legislation. About half are viewed as substantive. Florida's reforms are considered among the strongest in the nation.

Excerpted from Coalition for Property Rights post, June 27, 2008

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.”

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. 

• 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.

• 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.

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.

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.

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?

"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.

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

The state is putting a stop to the taking of private property for less than genuine public purposes under the label of "slum" or "blight," according to Andrew Brigham, a Florida lawyer with Brigham Moore LLP, who testified repeatedly during the recent legislative hearings.

The firm is Florida's leading statewide eminent domain and property rights defense firm with offices throughout the state.

"In the past 10 to 15 years, takings of private property were not occurring in the inner city where free enterprise had been found to abandon the community," said Brigham. "Instead, takings for the bigger, better and more beautiful visions of local government and favored developers were occurring near the oceanfront or Intracoastal, requiring the taking of private property from those who were less economically or politically empowered than the developers to whom title would transfer."

Controversy erupted recently when Michael Brown, Riviera Beach, FL, Mayor, and Robert Healey, a New Jersey developer owning Viking Yachts, mounted a last minute lobbying effort to allow local government a "grace period" in which to enter into development agreements to use the power of eminent domain to assemble property for the developer. This would allow eminent domain proceedings to be filed by the City up until 2010.

Healey proposes to build a marina, hotels, restaurants, retail shops and condos where homes and small businesses now stand under private ownership. Brown calls the development effort a "rescue mission" to save poor neighborhoods. To back their plan, Healey offered to pay for chartered buses to transport protestors to Tallahassee, FL in the hopes of deterring Governor Bush from signing the bill.

According to Brigham's prevailing viewpoint, "It is hard to conceive that 'saving' the neighborhood requires actually 'selling' the neighborhood to a developer. Can it really be suggested that you are on a 'rescue mission' when you are taking away a person's home or business? These people do not want to be rescued, only left alone."

Rather than allowing for a "grace period," Florida's lawmakers stood by their original promise to provide meaningful reform to the state's property owners. HB 1567 was signed in record time to accelerate the commencement of eminent domain proceedings, and an effective date was provided upon the governor's signature. So too, HB 1569 was signed and provides that a constitutional amendment be placed on November's ballot for protection against takings of private property for the sole purpose of economic development.

"This is an uplifting testament of how Florida's Legislature and Governor stayed true to the hard-working people whose homes or businesses were in the sites of a 'reverse-Robin-Hood' eminent domain exercise," said Brigham.

"We avoided a devastating compromise sought by a number of local governments and their developers. Our representatives in Tallahassee did not forget whom they serve."

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.

At the same time our Supreme Court has ruled the right to display obscene political comments is fundamental; the right to burn the American Flag is protected; and the right to pass out leaflets door to door is basic to our constitutional way of life. Private property, to some courts, is not fundamental; yet the right to use contraceptives is basic and constitutionally protected.

The conclusion of marginalizing the civil right of private property, is drastically different from the thinking which has permeated the roots of our Anglo-American culture since the middle ages. From the monumental Magna Charta in the 13th Century which protected private property seizures in violation of the law of the land, to Sir Edward Coke and John Locke in the 16th and 17th centuries, English custom, law and theory have heralded the central part private property plays in a free society. This philosophy was firmly rooted in early American traditions as well, and is reflected in the writings of Hamilton, Madison and John Marshall. And of course it is difficult to escape the plain language of the Fifth and Fourteenth Amendments to the U.S. Constitution! No person shall be deprived of life, liberty or property without due process of law. How can one even suggest that property is not fundamental.

Yet the Kelo decision and other recent federal court opinions seem to betray an ignorance of that basic tradition of private property; so firmly rooted in our culture. It is time, hopefully not past time, to raise the alarm; and more importantly to begin a drive to re-educate our lawyers and judges to what is truly and deeply fundamental to our American way of life.

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