Amendment Profile: # 8

In June of 2005, the United States Supreme Court decided, in Kelo v City of New London (PDF), that state and local governments could use the eminent domain process to take property from a private owner and transfer it to another private owner as part of a comprehensive economic redevelopment project. Economic redevelopment, it turned out, is a permissible public use under the Fifth Amendment to the U.S. Constitution, because an improved economy and larger tax base benefits everyone.

The outcry after this ruling spread far and wide. Local governments passed ordinances making it harder for themselves to take land. State governments started passing laws to clearly spell out the definition of “public use” under which local governments can take real property. Florida is no different.

Section 73.013, Florida Statutes, provides specific uses under which a local government can take land through the eminent domain process:

  • Transit systems;
  • Roads;
  • Toll-road facilities, including ‘turnpike system’ rest-stops;
  • Electricity, natural gas, water, swere, stormwater, and telecommunications facilities;
  • Public infrastructure;
  • Leasing an ‘incendental part’ for selling goods or services to the public; or

Section 73.014, Florida Statutes, specifically prohibits the taking of land as part of a redevelopment project. Governments can still purchase the land from sellers willing to sell, but they can not take the land using the eminent domain process.

All of this is prelude to Amendment 8:

Proposing an amendment to the State Constitution to prohibit the transfer of private property taken by eminent domain to a natural person or private entity; providing that the Legislature may by general law passed by a three-fifths vote of the membership of each house of the Legislature permit exceptions allowing the transfer of such private property; and providing that this prohibition on the transfer of private property taken by eminent domain is applicable if the petition of taking that initiated the condemnation proceeding was filed on or after January 2, 2007.

The amendment would say that the Florida Legislature could not change Sections 73.013 or 73.014, Florida Statutes, without passing the bills by a 3/5 vote of the membership of each house. Three-fifths of the membership of the Florida House is 72, and of the Florida Senate is 24. The Amendment was placed on the ballot by the Florida Legislature, by votes of 115-0 in the House and 38-2 in the Senate.

This amendment has not received much play in the blogosphere, but several Florida newspapers have provided their opinion. Almost all of them recommend voting against the amendment. The Miami Herald said that it is not necessary, because the legislature already acted. The Tampa Tribune said that the three-fifths requirement would be difficult to overcome. The St. Pete Times called it “legislative showboating.” Only the Naples Daily News supports it, by saying it would help protect property owners.

The Florida Legislature did a great job in responding to the Supreme Court decision by passing the most stringent eminent domain law in the country. The taking of private property should be limited to truly public needs. However, there are always unforseen circumstances. In those cases, a small minority of 49 members of the Florida House or 17 members of the Senate should not be allowed to block changes designed to respond to the future needs of the people of Florida.

Therefore, the State of Sunshine recommends voting NO on Amendment 8.

About Jim Johnson

Editor and publisher of The State of Sunshine.
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