By Daniel Peterson, Senior Fellow, The James Madison Institute
The 2018 elections will decide…
“Life, Liberty, and the Pursuit of Happiness.” Every American should recognize these words penned by Thomas Jefferson in the Declaration of Independence. What many Americans do not know is that he borrowed these words from the 15th century English philosopher John Locke who had authored the phrase, “Life, liberty, and property.” Jefferson and our Founding Fathers recognized that freedom to use and enjoy property was the gateway to maintain individual independence and grow prosperity. They understood that, as these rights were protected and granted to each and every person, a nation’s common good and security would be advanced.
Florida’s 2018 election will be pivotal in determining whether private property rights are protected and strengthened or the police and regulatory powers of government over property are expanded.
Over the past 35-40 years, private property rights have both gained protections and suffered policies that have served to weaken them. The rights of a property owner are often called a handful of rights, like something that can be grasped by the five appendages of one’s hand. They include the right to possess, to enjoy, to use, to exclude from, and to dispossess.
A Most Recent Example of Property Rights Protection
One of these rights, the right to exclude persons from one’s property, was strongly contested during Florida’s 2018 Legislative Session. In 2016, the Walton County Board of County Commissioners passed an ordinance giving tourists the right to enjoy privately-owned beaches. The basis for its new ordinance was the common law, “Doctrine of Customary Use.” This doctrine says that use must be based upon customary use that is: (1) ancient; (2) reasonable; (3) without interruption and (4) free from dispute. In other words, it is based on past precedence. It is not something to be legislated by a governing body, but decided on a legal basis by a court of law. The new 2018 law (CS/HB 631) does not permit, nor does it prohibit the use of private property based on customary use. But it does prohibit a government entity from passing such ordinances. And it also recognizes the right of anyone claiming customary use to make their claim in a court of law where proper due process can be exercised. This is a just and right law protecting property rights and the right of exclusion.
Imagine you own a home with beautiful landscaping located near a football stadium. You try to keep masses of people from walking across your property on game day, only to have your local government pass an ordinance giving them permission based on customary use. No property owner would stand for that. However, suppose enough people were elected to office who did not value the property right of exclusion. Imagine them passing a law giving anyone and everyone the right to transverse your property. You would have no ability or right to protect your property from damage or its diminished value. Electing people with a strong understanding of and adherence to property rights protects you and the value of your home.
Florida Protects Property from Improper Condemnation Via Its Eminent Domain Law
Florida’s eminent domain law is a strong one protecting property owners. The Fifth Amendment to the Constitution permits government to exercise its police power to take private property for a public purpose, provided just compensation is paid to the owner. However, in 1995, elected officials of the city of New London, Connecticut, who were weak on protecting property rights, voted to condemn private property for privately-funded facilities. Despite the protests of property owners and a lawsuit brought by Suzette Kelo, liberal-minded judges on the Supreme Court failed to protect property rights, and the properties were taken. In response to this shocking outcome, in 2016, the Florida Legislature (led by then-Speaker of the House Marco Rubio), returned eminent domain to its original and limited use by making clear its purposes and limits.
Had elected officials with a weaker stance regarding private property rights been in charge, the security of property would be subject to the threat of eminent domain by any attractive-sounding development project. Fortunately, the right of property prevailed because candidates with strong property rights values and an understanding of the U.S. Constitution had been elected by the voters of Florida.
Florida Protects Property from Regulatory Condemnation Via the Bert J. Harris Act
The election of candidates that value strong property rights was important in the passage of the Bert J. Harris Private Property Protection Act in 2014. They recognized that new laws, regulations, ordinances, or rules can unfairly and negatively affect the use or value of private property. Imagine you invest your money in beachfront property and are permitted by local government to construct an eight-story condo. After the purchase, but before construction begins, the local government passes an ordinance limiting construction to four stories. As the owner, you just lost half of your investment-backed expectation because your property has just been inordinately burdened.
Thanks to property rights advocates and elected officials with a strong commitment to property rights, property owners now have recourse when local government actions negatively affect their right to use their property. An owner now has the right to sue the government when an unfair or disproportionate burden is placed on one’s property.
A potentially explosive situation is building in Florida. Radical environmentalists and some governments are accusing property owners of polluting ground water through the use of septic systems. These systems have been permitted through the Florida Department of Health. They have not been individually tested. Rather, water samples have been taken from well and water bodies. The water qualities of these wells and water bodies are subject to pollution from storm and hurricane run-off, failing waste water treatment and delivery systems that pump millions of gallons of raw sewage into the environment. Should regulations be enacted to force property owners to bear the cost of replacing their permitted and functioning septic systems with expensive electricity-dependent “high-performance” systems, property owners would have a just cause for suing the government based on the Bert J Harris Act.
Florida Protects Private Property Owners from Extortion When Using Their Property
In December 2013, the Supreme Court of the United States (SCOTUS) settled a case which had been ongoing for 19 years. Coy Koontz, Sr. owned approximately 15 acres of wetlands in Orange County, Florida. In seeking a permit to position his property for development, Koontz offered to place 11 acres into a conservation easement, leaving 3.7 acres to development. Instead, the District said he would need to pay for improvements to a District-owned property located several miles away that was completely unrelated to the property he was seeking to develop. Koontz refused to pay what, in effect, was extortion. Multiple court cases ensued until the SCOTUS ruled in favor of Koontz.
Elected state officials with strong property rights values took the initiative to protect property owners in Florida from this type of extortion. In 2015, a law was passed that made such exactions (extortions) unlawful. It required that any exactions on a property have a “nexus” to the subject property and be proportionate.
Had candidates with a weaker perspective on property rights been in office, government agencies might still be forcing unreasonable exactions on property owners wishing to exercise their right to use their property.
Threats to Private Property Rights Exist Today
Despite the great work of elected leaders in Florida, the battle for the protection of private property rights continues today. Threats and restrictions to property rights, at times, seem legion. Overreaching environmental regulations, complicated comprehensive plans, expensive impact fees, disproportionate taxes, and time/money-consuming paperwork and permitting are just a few of the obstacles to overcome.
In some areas, the field is simply not level. For example, if you have property and want to use it, you must comply with your local comprehensive plan. Florida’s Growth Management law (163.3177) requires nine mandated elements to be considered by local governments when addressing growth management. Thy are:
- capital improvements
- future land use conservation
- general facilities element including sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge
- recreation and open space
- coastal management (for coastal local governments)
- intergovernmental coordination
Notice that not one of these elements expresses the Legislative intent (163.3161(10)) of this law to protect private property rights. Because of this omission, private property rights are often burdened or abused at local levels or denied.
Measuring a Candidate’s Commitment to Protecting Private Property Rights
The 2018 election will define the next generation of property ownership in Florida. With that in mind, this presents a great opportunity to measure candidates’ commitment to property rights. Ask if he or she will support a 10th mandated element to the local comprehensive plan that would require private property rights to be considered in land use decisions.
Another threat that clouds property rights is the growing government estate. This is more of a threat to the existence of private property. Government owns approximately one-third of the land mass of Florida. More than 30 percent of our state is already in conservation. Nevertheless, radical environmentalists continue to push for the acquisition of land. Billions of dollars are scheduled to flow into the Florida Forever program to acquire more conservation lands. Meanwhile, currently-owned lands go improperly maintained due to a lack of funding. Unmaintained public lands become breeding grounds of plant and animal invasive species, insects, and fire. This devalues adjacent private property. Additional public land means less property tax revenue needed by local governments to provide for the needs of their citizens. The cycle continues as money for services such as roads, infrastructure improvements, fire and safety are siphoned off in the name of conservation.
Will future elected officials continue to grow the government estate or scale back the growth and land ownership of government? Will they promote stewardship of already-owned property or irresponsibly pursue increased accumulation? How candidates answer these questions will speak volumes about their commitment to stabilizing and even growing the amount of private property or growing government.
A Bright Future for Florida?
The question each of us must answer is will the right of property be nurtured and protected? Or, will those rights continue to be eroded or destroyed in the name of conservation or environmental protection or reducing our state’s carbon footprint? No one expects or proposes that all regulations be eliminated. It is good stewardship to protect our state and its resources from careless or thoughtless abuse or neglect. In a free-market society, reasonable people can be elected who can discuss such issues, protect property rights and protect the beauty and resources of our state. And, it must be remembered, ultimately private property owners are the best stewards of the land they own.
In recent years, great strides have been made. Innovative means of protecting both the environment and property rights have been developed. Affordable, passive conventional septic systems and drainfield mediums, which filter out harmful nutrients, are available if our Department of Health will approve their testing. The current administration under Governor Rick Scott’s leadership has aggressively pursued several environmental improvement projects. Accelerating restoration of the Everglades through funding the raising of the Tamiami Trail to advance water flow, funding faster repairs to the Herbert Hoover Dike, and seeking to accelerate federal funding for the same in conversations with President Trump are just a few examples.
Florida’s future is promising because we have elected policymakers who have balanced environmental and other concerns with protecting property rights. Nevertheless, it will remain so only if we continue to elect people who understand the need for and benefits of strengthening private property rights. Not to do so limits our state’s future. And, perhaps most importantly, it diminishes every Floridian’s unalienable right to “Life, Liberty, and the Pursuit of Happiness.”
As this watershed election approaches, take time to know the candidates, ask them hard questions, see where they stand on property rights issues, and work hard to elect the best. Florida deserves no less.
Read: “Florida’s Future: Protecting Private Property Rights or Growing the Regulatory State?” here: https://www.jamesmadison.org/wp-content/uploads/2018/09/Journal_Fall2018_Property.pdf