Florida's Takings Law: A Bark Worse than its Bite
By David Spohr
INTRODUCTION
A heated political debate currently surrounds the issue of private property rights. Since 1991, roughly twenty-six states have passed legislation addressing property rights protection. In addition, a private property rights bill passed the U.S. House, and another was reported out of the U.S. Senate Judiciary Committee. This Note examines the most detailed and sophisticated of all state “takings” laws, the two distinct acts that comprised Florida's 1995 Private Property Rights Protection Act--the Harris Act and the Dispute Resolution Act (“the Acts” or “the Florida Acts”). Against the backdrop of public controversy over property rights protection, this Note compares the Acts with the solutions put forward by other states and the federal government and analyzes the Acts' potential impact on the manner and degree of environmental protection in Florida. This Note argues that while the Acts may not be a blessing for the environment, they are far less draconian than their counterparts in other jurisdictions and may not be as harmful to the environment as some observers fear. Florida was almost certain to pass some form of property rights law in 1995, and, from an environmental protection standpoint, the Acts should be seen as a reasonable result. While the Acts ensure greater protection for property rights, they also provide adequate protection for the environment. Moreover, the Acts may allow and encourage the use of more effective means for settling land-use disputes than exist under traditional takings jurisprudence, and they may present a better model for resolving contentious environmental conflicts.
Part I begins with an overview of the rise of the property rights movement, the philosophical and economic justifications for expanded property rights protection, the composition of the movement's members, and the reasons supporters demand protections beyond those offered by the Fifth Amendment. It concludes with an introduction to legislative enactments on takings. Part II focuses on the Acts, tracks their legislative history, and provides a summary of the principal procedures for bringing a claim. Part III examines some of the critical subsections of the Acts and attempts to predict how these might be applied, including their potential impact upon the environment. Part IV compares the Acts to the other state and federal compensation measures in terms of the grounds they set for a claim, the process for making a claim, and the effect of proving a taking. Part V analyzes the impact of the Acts to date and predicts their future course.
A heated political debate currently surrounds the issue of private property rights. Since 1991, roughly twenty-six states have passed legislation addressing property rights protection. In addition, a private property rights bill passed the U.S. House, and another was reported out of the U.S. Senate Judiciary Committee. This Note examines the most detailed and sophisticated of all state “takings” laws, the two distinct acts that comprised Florida's 1995 Private Property Rights Protection Act--the Harris Act and the Dispute Resolution Act (“the Acts” or “the Florida Acts”). Against the backdrop of public controversy over property rights protection, this Note compares the Acts with the solutions put forward by other states and the federal government and analyzes the Acts' potential impact on the manner and degree of environmental protection in Florida. This Note argues that while the Acts may not be a blessing for the environment, they are far less draconian than their counterparts in other jurisdictions and may not be as harmful to the environment as some observers fear. Florida was almost certain to pass some form of property rights law in 1995, and, from an environmental protection standpoint, the Acts should be seen as a reasonable result. While the Acts ensure greater protection for property rights, they also provide adequate protection for the environment. Moreover, the Acts may allow and encourage the use of more effective means for settling land-use disputes than exist under traditional takings jurisprudence, and they may present a better model for resolving contentious environmental conflicts.
Part I begins with an overview of the rise of the property rights movement, the philosophical and economic justifications for expanded property rights protection, the composition of the movement's members, and the reasons supporters demand protections beyond those offered by the Fifth Amendment. It concludes with an introduction to legislative enactments on takings. Part II focuses on the Acts, tracks their legislative history, and provides a summary of the principal procedures for bringing a claim. Part III examines some of the critical subsections of the Acts and attempts to predict how these might be applied, including their potential impact upon the environment. Part IV compares the Acts to the other state and federal compensation measures in terms of the grounds they set for a claim, the process for making a claim, and the effect of proving a taking. Part V analyzes the impact of the Acts to date and predicts their future course.
