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Florida Eminent Domain and Inverse Condemnation

Florida Eminent Domain and Inverse Condemnation: the foundation of private property rights and recent changes to the Bert J. Harris Jr. Private Property Rights Protection Act of 1995.

On June 21, 2011, Florida ‘s Governor Rick Scott amended Florida Statute 70.001, also known as the Bert J. Harris, Jr. Private Property Rights Protection Act. These amendments became effective July 1, 2011, and constitute an effort to strengthen private property rights in Florida.

The major changes to this Act are as follows:

1. It allows a private property owner to file a claim on a temporary impact if that impact extends longer than one year.

2. It extends the notification of intent to file a claim to 150 days, 90 days if the property is agricultural.

3. It clarifies that the State waives sovereign immunity related to the Act.

Protecting private property was one of the principles embraced by our founding fathers. The Fifth Amendment to the United States Constitution protects citizens against the power of the government to appropriate private property. The Fifth Amendment is part of the Bill of Rights and is designed to protect against abuses of governmental authority. Many of the provisions of the Fifth Amendment stem from the English Magna Carta of 1215. For instance, grand juries and due process rights were adopted from the Magna Carta.

The Fifth Amendment provides that “no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.”

The above provision is known as the “ takings clause”. This clause gives the Federal government the power of eminent domain, i.e. the power to take private property for public use. It also requires private property owners to be justly compensated for such takings.
The provisions of the takings clause of the Fifth Amendment apply to the states through the 14th Amendment to the United States Constitution.

There are 3 classifications of eminent domain or inverse condemnation:

1. Per Se. This is where the private property owner is deprived of all economically beneficial use of his/her property.

2. Easement or Other Property Rights Given to Government. When the government seeks an easement through private property, this is a form of inverse condemnation and the private property owner is entitled to compensation.

3. Governmental Regulations that Impose a Severe Restriction on Use of Property. A governmental regulation that imposes a severe restriction on a private property owner’s use of his or her property can be a form of inverse condemnation or eminent domain. As Justice Holmes stated, “If regulation goes too far, it will be recognized as a taking. In this situation, the nature and the extent of the impact on the private property owner must be determined in order to calculate reasonable compensation.”

In 2005, the United States Supreme Court, in Kelo v. City of New London (in a 5-4 decision), held that state and local governments can take private property for private commercial development on behalf of private developers, as long as the plan has a public purpose. In a strong dissent, Justice Sandra Day O’Connor argued that this holding would benefit the rich over the poor. It would give those with access to local government officials leverage to secure private financial gain at the expense of less affluent citizens.

The Kelo decision has been controversial and continues to have far reaching affects. Florida and other states are trying to limit its impact through legislative amendments, such as the recent amendments to the Bert J. Harris Act.