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Florida Small Business



June 19, 2018


John F. Berry | 7/1/1995
Readers of letters to Florida Trend know that I touched a raw nerve with my March column opposing the property rights constitutional amendment. Proponents argue that anyone whose property is devalued by zoning, environmental regulation and other government actions should be compensated by Florida's taxpayers.

Letter writers responded to my column by labelling me a socialist or worse and suggesting that I might enjoy moving to Russia. One canceled a planned advertisement, others subscriptions.

Now the Florida Legislature has hammered out a compromise property rights bill, which became law on May 18. The legislation was sculpted by a working group of lawyers, lobbyists and other interested parties brought together by Department of Community Affairs Secretary Linda Loomis Shelley, the agency in charge of growth management in the state.

How did such a diverse group, which ranged across a broad political spectrum, come together on this divisive, emotional issue? Briefly, they faced up to the harsh reality, which had become apparent even to radical elements of the Legislature, that the proposed property rights constitutional amendment could be disastrous for the state.

The working group realized that the amendment's open-ended provisions for compensation to aggrieved property owners could bankrupt the state or cause it to abandon the public trust - a concern that I also raised in my March column. Backers of the 1994 amendment (struck down by the court on a technicality) had presented it as a crusade of the small property owner. But it was, in fact, underwritten by commercial interests such as U.S. Sugar. For these interests, the amendment would have brought either windfall profits by gutting existing land use regulation or enormous subsidies financed by the taxpayers.

Most participants in the Shelley group seem to have come away with very different impressions of what they accomplished. But all view the alternative as much worse.

Charles Lee, a lobbyist for the Florida Audubon Society, was buoyed by the legislation, calling it "the most rational approach to the subject we've seen." Wade L. Hopping, a Tallahassee attorney and strong property rights advocate, describes it as "a great step in the right direction." And to David Gluckman, an environmental attorney, the property rights bill was "probably horrible legislation" but "necessary to stave off greater evils."

So, what does the act say?

As you might imagine it's an extremely complex document, but here are a few major elements:

* It takes effect in 1995 and doesn't apply to any rules or regulations that predate the act.

* An owner must show that government action has caused an "inordinate burden" on his property. A judge must determine if this claim is just.

* If the judge agrees, the property owner must give the government agency 180 days to reach a settlement with him.

* If there's no settlement, he can sue. If he wins the suit, the government must pay his attorney fees and expenses. But - and this is a big, big but - if he loses, the property owner must pay the government's attorney fees and expenses.

Just about everyone agrees that the key phrase in the act, "inordinate burden," will be the subject of years of judicial interpretation to determine precisely what that means. Other elements of the law certainly will be challenged, including that it's not retroactive.

For example, Ron Weaver of Tampa, a leader in the constitutional amendment movement, says the new law falls short in many ways, including that it doesn't go back to the 1985 Growth Management Act, which he'd like to gut. "If I lose 20% or more of the value of my land to government regulation, I should be entitled to compensation," argues Weaver, who predicts the amendment will be on the ballot again.

Weaver has reason to feel confident. Opinion polls show that when the words "property rights" appear on a ballot, people vote yes. That's to be expected; who but a real communist doesn't favor property rights? The problem is that most voters don't understand what's truly at stake behind the patriotic rhetoric.

Indeed, the property rights amendment isn't about property rights; it's about subsidies. In reality, a vote for "property rights," in this instance, is a vote for a truly socialist scheme. Such a constitutional amendment would create a new entitlement under which hundreds of millions of dollars would flow from the taxpayers to landowners who damage the environment or harm their neighbor's property values through reckless development.

The zealots want nothing less. And no sensible effort at compromise, as was attempted in this last legislative session, will satisfy them.

The Legislature may have put politics aside in voting the property rights bill, but that kind of bi-partisanship was rare in the recent session. Nowhere was this more apparent than in its scuttling of a plan to meld the Commerce Department into a three-year-old government-business partnership, Enterprise Florida.

This was an idea strongly endorsed by business groups around the state. Dick Nunis, chairman of Walt Disney Attractions, tried unsuccessfully to use the muscle of the prestigious Council of 100, of which he's also chairman, in an 11th hour effort to save the proposal. Nunis still believes Enterprise Florida will be the vehicle to encourage and attract new industry to broaden Florida's dangerously narrow economic base. "We have to say to the world that Florida is serious about economic development," says Nunis, who predicts: "Enterprise Florida is going to be the state's savior."

The problem was that Governor Chiles embraced the plan, and in this period of extreme partisanship, that made the plan unpalatable to Republicans, who ordinarily would have warmly embraced it. "It wasn't the issue," says Howard Hodor, president of Enterprise Florida, "it was the carrier."

Tags: Florida Small Business, Politics & Law, Business Florida

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