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

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 Between 2001 and 2006, Wyoming, Kansas and New Mexico repealed their respective alien land laws.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.

As a part of this push for energy infrastructure projects, many Florida landowners will be approached by private companies with offers to purchase their property, portions of their property, or more likely, easements over portions of their property for rights to locate overhead electric power lines or underground natural gas pipelines. These offers and negotiations take on a different dynamic because the potential purchaser has the power of eminent domain on their side – effectively taking away a landowner’s right to say, “no thanks.”

The power of eminent domain is a function of the sovereignty of our government. This power is in contradiction to a basic fundamental right, the right of private property, and is therefore strictly construed against the government asserting the power. Certain private companies, however, are availed of the power through delegation from the legislature. While the statutes and constitution have been recently amended to prevent someone’s home being taken to build a Wal-Mart, Florida has long deemed that corporations “organized for the purpose of constructing, maintaining or operating public works”  may appropriate lands or any materials necessary for the construction of those works, using the state’s power of eminent domain. See§361.01 Florida Statutes (2008).

When a non-government agency seeks to acquire private property in Florida using this delegated authority of eminent domain, the fundamental constitutional protections for the rights of the landowner remain firm.

No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner.

           Article X, Section 6(a) Constitution of the State of Florida (1968).

The full compensation requirement of the constitution is intended to place the private landowner on a level playing field with the condemning authority, and to make the owner whole as much as possible and practicable. In fact, some aspects of the condemnation process are even more strict for private companies exercising the power of eminent domain. See §74.051(2) Florida Statues (2008) (requiring a private condemning authority to place twice the good faith estimate of value upon deposit in a quick taking proceeding).    

For more information on Florida energy infrastructure projects currently in the permitting phase, see:

Florida Gas Transmission Phase VIII

Cypress Pipeline Phase III

Florida Power & Light Bobwhite-Manatee 230kV Line

Florida Power & Light West County Expansion – Unit 3- Palm Beach County

Progress Energy/Tampa Electric Lake Agnes – Gifford 230kV Line

Progress Energy Levy Nuclear Power Plant and 188 miles of associated transmission lines.

For more information on the right of private property and the power of eminent domain, see our Owners’ Handbook.

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.

• 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.

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