Old McDonald still has a farm: agricultural property rights after the veto of S.B. 1712.

• Author: Grosso, Richard

On July 8th, 2004, Governor Bush vetoed S.B. 1712, enacted by the legislature during the 2004 legislative session, which would have ensured agricultural landowners in Florida the right to develop their lands at levels equivalent to surrounding land uses. The bill would have opened Florida's agricultural tracts to development at the same pace and density as their neighboring parcels. The veto message states that the governor is committed to "meaningful and consistent" growth management policies, and that he wished to prevent farmers from being lured to "cash out" their lands for development, preserve environmentally sensitive areas by preventing large scale development on converted lands, and prevent litigation over land use decisions. The governor also stated that it would be inappropriate to tie the hands of local governments as they make land use decisions. (1)

The veto message also raised the property rights of agricultural landowners, stating that "concerns of the supporters of this bill for protection of property rights must be incorporated into future discussions on growth management issues." It further stated that the rights of agricultural landowners are not superior to resource protection and must be "carefully balanced" to achieve the "appropriate" land use. According to the governor, agricultural land use decisions are not "statewide" concerns and decisions concerning the "appropriate" balance must be determined at the local level. This response begs the question: What constitutional and statutory property rights do agricultural property owners have in Florida?

Constitutional Property Rights Defined

The Fifth and 14th Amendments to the U.S. Constitution state: "[N]or shall private property be taken for public use, without just compensation." (2) The Florida Constitution is essentially the same, requiring "full" compensation. (3) Land use or environmental regulations which "go too far" and require a private landowner to bear a burden that should be borne by the public are a taking of private property. (4) There is no bright line for determining "the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession." (5) However, courts consistently find that regulations are a taking only if they establish a physical occupation, are arbitrary or capricious, or preclude all or virtually all economically viable uses. (6)

The leading Florida case is Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981), cert. denied, sub. nom., Taylor v. Graham, 454 U.S. 1083 (1981), in which the Florida Supreme Court upheld a development order that required half of the owner's property (a large mangrove forest) to remain in its natural state. Because the action served a legitimate governmental purpose and allowed the landowner to enjoy an economically viable use, the court rejected the takings claim, and found that "an owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injuries [sic] the rights of others."

Rights to Nonagricultural Uses

In determining whether a regulation denies a landowner all economically viable use, the focus is on the existence and value of permissible uses. (7) The landowner bears the burden of showing that there is no available beneficial use of the property under the challenged regulation. (8) There is no right to any level of nonagricultural land use, such as residential, commercial, or industrial, as long as the allowed uses are "economically viable." (9) Thus, as long as agricultural use is economically viable, regulations may preclude all development. Under this line of reasoning, unless the denial of a density increase would leave the landowner with only uses that are not economically viable, it will generally not constitute a "taking." In Martin County v. Melyvn R. Yusem, 690 So. 2d 1288 (Fla. 1997), the Florida Supreme Court upheld a county's decision not to "up-zone" agricultural lands, concluding that the county was not required to amend its comprehensive plan at the landowner's request. The court held that landowners do not have a right to density increases, and ruled that decisions to deny requests for comprehensive plan changes are legislative decisions subject to the deferential "fairly debatable" standard of review.

In Martin County v. Section 28 Partnership Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000), the Fourth District rejected a taking claim against Martin County's decision not to amend its comprehensive plan to change agricultural zoning. The court held that such decisions "will not be considered arbitrary and capricious if [they have] a rational relationship with a legitimate general welfare concern." (10) The court found that "the record contains sufficient evidence establishing that the County's comprehensive policies are based on rational and sound planning principles, designed to preserve agricultural lands, protect wetlands and environmental resources, ensure the efficient use of public resources and discourage urban sprawl" and that because of the extent of the impact from the proposed density increase, the refusal to amend the plan bore a substantial relationship to a legitimate governmental interest.

Thus, if agricultural uses are economically viable, local governments will typically be well within their police power and without "takings" liability if they decline to approve rezonings or comprehensive plan amendments on agricultural lands. Senate Bill 1712 would have granted legal entitlements of rural or agricultural landowners to density and use increases that they do not currently enjoy.

Reductions in Allowable Use, Density, or Intensity

Landowners are also not legally protected from reductions in allowable use or intensity under the U.S. or federal constitutions unless they "go too far." In Florida, there is no vested right to the continuation of current zoning, which can be reduced for valid reasons. (11) Thus...