Document Type

Article

Publication Date

Spring 2011

Abstract

This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to private homeowners' property rights. Several states sought legislative solutions to ameliorate the Court's decision. The most reactive solution to date was enacted by the Florida legislature. The Florida statutory amendments cured the pernicious act of governmental taking of private property from one citizen and conveying it to another who promises to make "better use" of the property by specifically prohibiting it; however, this flat prohibition on economic development or blight condemnation eliminated a legitimate municipal tool serving all residents, albeit at the expense of a few affected homeowners.

Consequently, the amendments may have unintended side effects which are worse than the ill they purported to cure. This article also examines the negative impact of these amendments on counties, towns, and municipalities which have traditionally relied on lawful takings to modernize their urban areas, attract financing and industry, and increase their tax bases. After Kelo, Florida hoped to be a model of legislative responsibility; however, upon further analysis, Florida's reaction might prove to be premature and counterproductive. In short, the rush to enact laws to protect homeowners from the holding in Kelo has resulted in potentially more harm than intended and is a "Pyrrhic" victory at best.

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