Scott J. Kennelly, In Honor of Walter O. Weyrauch: Florida’s Eminent Domain Overhaul: Creating More Problems than it Solved

60 Fla. L. Rev. 471 (2008) | | | |

INTRODUCTION :: A knock at your front door wakes you. Blurry-eyed, you open your door to a government official who tells you that the city would like to purchase your home for a price slightly greater than fair market value. According to the official, most of your neighbors have already agreed to sell their homes so that your “distressed” neighborhood can get an economic facelift, which will include a multi-tower condominium complex. While you briefly consider selling, you are bothered that the government will not put your property to what you deem a traditional public use. Quickly remembering that your state representative helped pass eminent domain reform in Florida last year, you smile and say that you will not sell your home (which is worth around $ 100,000) for less than $ 1 million. The government official refuses and promises to contact you in the future.


Six months later, you regret having turned away the official. Although you were happy when the city increased fire and police protection and repaved some roads in your neighborhood, the special assessments imposed on you from those projects have exponentially increased your property tax bill. Along with higher bills, you have repeatedly received government notices demanding that you comply with building permit restrictions and fill out paperwork to prevent the city from demolishing the porch that you are constructing. Additionally, although you knew of some drug dealing nearby, now the police catch a drug dealer in your neighborhood every few weeks, sometimes through controlled buys in your front yard. The city has warned you that you must take measures to abate this drug-related “public nuisance.”


Not surprisingly, when the government official again shows up at your door, you decide to “voluntarily” sell your home for slightly more than $ 100,000. If you had not sold, the government might have either seized your property for your failure to pay the increased taxes or condemned your property for failure to abate the nuisance.

Although this hypothetical paints a drastic scenario, the government’s current means likely are not any friendlier to the landowner than those that most people viewed as the “horrors” that occurred when the government used eminent domain for economic redevelopment. Before eminent domain was reformed in Florida, the government still attempted to negotiate a voluntary sale. If refused, the government had to follow the necessary eminent domain procedures, to demonstrate that the proposed project qualified as a “public use,” and ultimately to pay “just compensation.” Still, the fear and perception that landowners were given unjust compensation and that corrupt officials were abusing eminent domain to yield only private benefits has driven a harsh reaction to the U.S. Supreme Court’s 2005 ruling in Kelo v. City of New London. In Kelo, the Court upheld New London’s use of eminent domain to acquire land for a private development project. The Court reasoned that the project’s promise to create jobs, increase tax revenues, and revitalize an economically distressed area resulted in a constitutional “public use.”

After Kelo, legislators across the country worried that “economic redevelopment” would become a blanket justification for eminent domain. Florida legislators acted quickly. One day after Kelo was decided, Florida’s House of Representatives created the House Select Committee to Protect Private Property Rights. The committee was created to prevent Kelo’s perceived horrors by setting clear guidelines to allow eminent domain only where there is a clear public necessity and benefit. After passing a bill intended to limit abuses of eminent domain, the Florida Legislature crafted a constitutional amendment to place before voters in a statewide referendum. Voters overwhelmingly passed this amendment on November 7, 2006. Florida’s current framework requires the government to wait ten years before transferring to a private entity private property taken by eminent domain and forbids the use of eminent domain to eliminate “blight” conditions or public nuisances. Additionally, the Florida Constitution requires a three-fifths majority in both legislative houses to grant exceptions to the eminent domain prohibitions on private use.

This Note initially discusses how the Florida Legislature’s reaction to Kelo was unnecessary. However, accepting that the legislature felt the influence of the body politic to enact significant eminent domain reform, this Note argues that the legislature did not fully consider the consequences of its actions. Instead, the legislature’s measures were overly broad and created ambiguity. Additionally, the measures will have unintended consequences that could leave landowners and the community worse off than under the previous system. Finally, this Note offers solutions that would both provide Florida with a more comprehensive eminent domain framework and capture the Florida Legislature’s actual intent to curb abuse and provide opportunities that benefit the public.

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