The publications in this collection do
not reflect current scientific knowledge
or recommendations. These texts
represent the historic publishing
record of the Institute for Food and
Agricultural Sciences and should be
used only to trace the historic work of
the Institute and its staff. Current IFAS
research may be found on the
Electronic Data Information Source
site maintained by the Florida
Cooperative Extension Service.
Copyright 2005, Board of Trustees, University
S- Circular 413
SumrXmarry G-uide to
Reguil ation of
..Agr ioult ral
l ^ -
Florida Cooperative Extension Service/Institute of Food and Agricultural Sciences/University of Florida, Gainesville
SUMMARY GUIDE TO REGULATION OF AGRICULTURAL LAND USE
This document explains the general legal framework of regulation
of the use of agricultural land. It is not intended as a definitive
statement of the law of agricultural land use regulation, nor is it a
substitute for competent legal advice on problems involving land use
We are concerned here with state restrictions on the use of agri-
cultural lands as opposed to federal restrictions. Our chief interest
is in direct regulations rather than indirect measures such as laws on
marketing and taxation. Moreover, we are concerned here with agri-
cultural land use, not with commercial, residential or recreational
uses. For example, if someone who presently makes an agricultural use
of his land decides to subdivide, he would come within the scope of
regulations on platting, subdivision, interstate land sales and others.
These are beyond the scope of this publication.
SUMMARY GUIDE TO REGULATION OF AGRICULTURAL LAND USE
James B. Wadley
PART I INTRODUCTION
A. What is property?
Basically, property is anything the state is willing to protect as
property. This means that unless the law, or perhaps more precisely the
courts, will agree to protect a certain interest as a property interest,
it is not property, no matter how valuable, useful, or necessary it may
be to an individual. The surprising thing to many about this concept of
property, is that the individual has very little control over what is
considered his property. It is not property because he acquires it,
possesses it, wishes it to be property or claims it is property. It is
property only if the state decides it is property and only if the state
decides to give it the protection of the law.
Many things can be considered property -- ideas, rights in paper, or
checks among others. Property can be land (real) or things (personal);
it can be tangible or intangible; it can be public or private. Since we
are concerned here with agricultural land, our references to property will
generally mean land and references to property rights will mean rights in
land, though you should be aware that some of what is said could be applied
to other forms of property as well.
B. What are property rights?
Once a certain interest is established by law to be property, rights
with respect to that property exist in the following categories: rights of
ownership, rights to dispose of the property not based on ownership, rights
to the use or profits of another's property, and liens.
Ownership rights generally include the rights to use, to possess and
to dispose of the property. Rights to dispose of the property not based on
ownership include such rights as mortgages and equitable and statutory liens.
Liens may also'represent property rights in another's property, a kind of
property right that might not always allow the holder to force the sale of
the entire property. Nevertheless, they are still property rights. Finally,
rights to the use of and profits from another's property include leases,
easements, covenants and other private restrictions, water and drainage
rights, and public rights (such as access, passage, fishing and navigation).
1Director, Center for Land Use Law, College of Law, University of Florida,
Gainesville, Florida. Member, Florida Bar. The following law students
assisted in the preparation of this document: James B. Barnes, Thomas
Farkash, George H. Russ, and Donald Wilson. This work was done under a
cooperative arrangement with the Center for Rural Development, IFAS.
C. Are property rights absolute?
We used to speak of the ownership of land as including everything
over and under the surface (from the heavens to the center of the earth).
This is no longer strictly the case, if it ever was, because many kinds
of restrictions are imposed on all property rights. For example, I can-
not use my land in a way that unreasonably interferes with your use,
enjoyment or possession of your land. Further, you should not be able
to excavate so near to my property line that my land caves into your hole.
You should not be able to stop the flight of an airplane above your
property just because it crosses the boundary of your land. Most people
agree that these practical restrictions and others like them are both
reasonable and necessary.
Other restrictions (not based on the relationship between individual
landowners or on the practical limits of one's dominion over land) are
based on requirements for the welfare of the community. Thus, generally
by statute, property may be taken by due process of law for the satisfaction
of just debts. Every owner holds property subject to taxation by the
government. Further, ownership is subject to the right of eminent domain,
(whereby the state, or someone authorized by the state, may purchase, with
or without the owner's consent, private property if such a purchase is
necessary for public use or purpose). Finally, all land is owned subject
to the police power of the state. Police power allows the state to impose
reasonable restrictions on use of property for the general health, safety,
morals and welfare of the public.
These restrictions on land ownership, agricultural and nonagricultural,
originate either in common law or in legislative or statutory law.
PART II COMMON LAW RESTRICTIONS
A. What is the common law?
We use "common law" to mean the rules, regulations and principles of
law that have been developed over the centuries by the judges as opposed
to the legislature. These rules of law are found in the decisions handed
down in specific cases rather than in statute books. In our legal system,
these common law rules and principles are as binding and authoritative as
statutory law. However, they may be and often are modified by statutory
B. What are common law restrictions on land use?
Early in the development of law, doctrines evolved that regulated and
restricted land use. Over time, other restrictions have been developed,
often in response to a specific problem. Today these restrictive doctrines
exist that may result in limitations on land use: nuisance, trespass,
negligence, strict liability and waste. In addition, certain rights are
recognized as a part of land ownership that limit land use as well. These
include the rights of Lateral and Subjacent Support and Riparian Rights.
(Riparian rights will not be discussed here because the topic was covered
in SUMMARY GUIDE TO FLORIDA'S WATER RIGHTS, IFAS Circular 412.)
C. What is the doctrine of nuisance and how does it restrict land use?
The doctrine of nuisance requires that you use your land without causing
unreasonable interference with another's rights. As a landowner you have
certain limited rights to the use and enjoyment of your land that are not
to be interfered with by others.
These use and enjoyment rights were historically quite narrow, but in
recent years they have been broadened somewhat. For example, it is your
right to have the air over your land free from unreasonable pollution by
vapors, odors or free from unreasonable noise. Further, you have a right
to the natural flow of surface and underground waters under or through your
land, and to protection from injury caused by the escape of water or other
liquids accumulated on neighboring land. Finally, you have a right to
protection from damage caused by the detonation of explosives accumulated
on the land of another.
These rights have not been sufficient, however, to prevent the erection
of structures on neighboring land that were unsightly, repugnant to feel-
ings, or which depreciated the value of the adjoining land. Nor have they
prevented the erection of structures that blocked your view, interfered with
light on your property, or intruded on your privacy. Finally, such rights
have not protected a landowner from the use of another's land that has as
its sole motivation a malicious attempt to annoy or cause injury, as long
as the use involved was otherwise legal.
Because of these and other deficiencies in the doctrine of nuisance,
the concept has been broadened somewhat to give you more protection. The
doctrine is still used as a limitation on land use and serves to protect
one landowner from damages caused by certain types of use made by other
landowners. If such injurious uses occur, they may be effectively halted.
D. What is trespass and how does it restrict land use?
The doctrine of nuisance protects you in the use and enjoyment of
your land, while the doctrine of trespass protects you from those types
of land use engaged in by others that result in interference with your
exclusive possession of your land. For example, a neighbor can be pre-
vented from carrying on any type of activity on his land that results in a
physical invasion of your property, if such invasion causes harm. In one
particular case cattle raisers complained that flouride particles, which
were emitted by an aluminum plant, eventually settled on the rancher's land
and were ingested by the cattle. The court held that a trespass had occurred
and that damages for injury to the cattle should be paid. In a situation
involving a use less beneficial to the welfare of the community than an
aluminum mill, the particular source of the trespass might well be enjoined
or otherwise restricted, in addition to being held liable for the damages
E. What is the doctrine of negligence and how does it restrict land
In law, negligence is generally thought of as a device to determine
who is at fault and, consequently, who must pay for an injury. This usage
is common when referring to automobile accidents and personal injuries, but
the doctrine also has application to the misuse of land or to activities
carried out on land.
If, through negligence, you use your land in a way that causes injury
to someone or something on another's land, or even injures another's land
itself, you may be held accountable for the injury. For example, if you
carelessly excavate on your land causing the soil around a neighbor's
buildings to give way and the foundations to crack, you could be held liable
for the injury. Or suppose you dam a creek to form a small lake, then sell
a couple of lakefront lots. But in the meantime you let the dam deteriorate
so that it breaks and the lots are left high and dry. This situation might
very well result in liability for the damage caused, again based on the
doctrine of negligence.
In this sense, the doctrine is actually more of a deterrent to certain
types of activities, because the risks involved are greater than an
affirmative restriction on types of land use, as is the case with nuisance
and trespass. However, its importance should not be underestimated. The
whole concept of negligence is based on the idea that there should be
liability for any foreseeable injury caused by failure to use reasonable
care in the performance of a legal activity.
F. What is the doctrine of strict liability and how does it restrict
The doctrine of strict liability, like negligence, is more of a
deterrent to risky kinds of land use than an affirmative prohibition.
Basically, the concept is that certain activities, generally referred to
as ultrahazardous activities, subject the perpetrator to liability for
injury caused whether or not these activities were carefully or negligently
carried out. Examples of such activities are blasting and pile driving.
The test usually applied to determine whether the activity is ultra-
hazardous is three-fold: (1) it involves a risk of serious harm to persons
or property; (2) it cannot be done with complete safety no matter how much
care is taken; and (3) it is not commonly performed in the community.
Another example is that an owner is strictly liable for damage done by
the trespass of his animals, especially animals known to be dangerous, if
he could reasonably foresee that they would trespass on another's land and
G. What is the doctrine of waste?
The land use doctrine of waste applies only when one person owns land
but another is in possession and has the use of it. Such a situation occurs
when land is leased or mortgaged. It also occurs when land is left to the
present user for his or her life (or a specified period) with the remainder
interest given to a third person. Simply stated, the doctrine of waste
prevents any kind of action that results in the appropriation of or injury
to any part of what is considered a permanent part of that land. For
example, without the owner's permission a tenant generally cannot destroy
or materially alter buildings, clay, soil, or gravel; or cut timber to sell
for his own personal benefit. Thus, under the doctrine of waste, a present
occupier of land owned by another is affirmatively restricted to those uses
which will not diminish the value of the land.
H. What are rights to lateral and subjacent support?
As a general rule, you can dig holes on your own land without consult-
ing your neighbor for permission. However, your neighbor has a right to
have the support of his own soil in its natural state, both laterally (from
the adjoining land) as well as subjacently (from the subsurface).
Specifically, the doctrine of lateral support is limited to the right
of a landowner to have his soil supported in its natural state by the land
adjacent to it. This limitation is based on the notion that to require one
landowner to support improved land (land with buildings on it) would inter-
fere with the rights of that owner to dig holes on his own land.
This means, according to the majority of courts in this country, that
if I own land upon which I have erected several buildings and you excavate
on your land so near the property line that my buildings fall in the hole,
you will not be liable for injury to my buildings unless you were negligent
in your excavation. However, if my land was undeveloped and you excavated
so near the property line that my land caved in and I could no longer enjoy
it as it was, you would be liable no matter how carefully you have excavated.
In the former case, your right to excavate was given a superior
position; in the latter case, my right is given preference. The theory
often used to make this seemingly arbitrary selection of superiority is the
idea that my buildings could have fallen because of their own weight and
not from any act of yours. In the case of the undeveloped land, though, the
only reason it could have caved in was your activity, and not anything I
might have done.
The right to subjacent support is similar in concept and function
though not as likely to involve an adjoining landowner. The right to
subjacent support protects the surface landowner, so that the topsoil, for
example, will not fall into a mine being operated by an owner of a mineral
interest. Such a doctrine is obviously of more importance in a coal mining
state than in Florida.
PART III LEGISLATIVE REGULATION OF LAND USE
A. By what authority can the state or local government legislate
land use restrictions?
The power by which land use regulations are enacted is called the
"police power." This power is an attribute of sovereignty and, as with
other municipal powers, must be delegated to the local body by the legis-
lature. The police power gives the governing unit the authority to take
actions necessary to promote the health, safety, morals and general wel-
fare of the public.
B. What are the major statutory regulations on land use that affect
or may affect the use of agricultural lands?
In Florida, a large number of statutes affect (or may affect) use of
agricultural land directly or indirectly. The chief ones are:
Florida Statutes Chapter
163, Part II
Water and Sewer Systems
Drainage by Counties
Beach and Shore Preservation Act
County and Municipal Planning for Future Development
Homestead and Exemptions
Land Acquisition Trust Fund
Game and Fresh Water Fish
Water Management Districts
Outdoor Recreation and Conservation
Environmental Land and Water Management
Pollution of Waters
Building Construction Standards
Florida Marketing Laws
Department of Agriculture and Consumer Services
Soil and Water Conservation
Legal Fences and Livestock at Large
Recreation and Parks
Florida Citrus Code
Some of these statutes pose outright limitations on what activities
can be undertaken on land, some restrict land use only minimally and
indirectly, while others may result in the ownership of land itself
actually passing to the governmental body. We cannot discuss each of
these statutes in detail in this paper. They will be discussed very
generally with emphasis on land use restrictions, even though some of
the statutes regulate more than that.
C. Which statutes marginally or indirectly influence the use of
agricultural land and how is this accomplished?
Many statutes do not authorize the imposition of direct restrictions
on land use but they do attempt to encourage certain types of uses or
discourage others through marketing regulations or tax assessments. Other
statutes allow landowners to form associations or special districts for the
purpose of regulating their own land use in their own limited areas with-
in the confines of the statutory authority. Finally, other statutes are
so limited in their application that their impact on the total land use
picture is small indeed.
Chapter 153 (Water and Sewer Systems) allows, under certain circum-
stances, the formation of water and sewer districts by local landowners.
Once such a district is created, it may assess ad valorum taxes on taxable
property within the district, charge fees for the use of the facilities,
make rules and regulations of certain types, construct facilities, and
acquire land for the purposes of the district. Land use regulation would
result, if at all, from the effects of taxation based on land assessments,
from the outright acquisition of property by the district, or from the
effects of regulations designed to maintain and protect the structures of
Chapter 157 (Drainage by Counties) allows a county to establish drain-
age ditches, canals and other works in addition to passing on the costs of
maintaining such drainage systems to the land benefiting from them. Facilities
may be constructed by the county on petition of the landowners to be
benefited, or landowners may form their own special drainage districts.
Any impact on land use by this statute would be the result of shifts in land
use that are encouraged by improvement in drainage as well as from any
regulations developed by the county or special district designed to maintain
and protect the system once it is established.
Chapter 298 (Drainage) allows the formation of water management districts.
These may be formed by the Department of Environmental Regulation or by a
majority of owners of the affected area. When they comply with other pro-
visions of state and federal law, the districts have power to clean out,
straighten, open up, widen or change the course and flow of canals, ditches,
drains, rivers, water courses or natural streams in the district. They
also have authority with respect to the protection and reclamation of land
in the district. If land use regulations resulted, it would be from the
effects of acquiring property or taxing property which in turn could encourage
shifts in the use of land in the district; from projects that cause alter-
ations in the drainage patterns of the area; or from regulation to protect
and maintain the projects.
Chapter 372 (Game and Freshwater Fish) regulates the use of land for
game preserves and game farms requiring permits to operate these types of
enterprises. Any land use regulation would be accomplished through the
ranting of a permit (which would allow the use) or denying the permit
which would prohibit the use).
Chapter 513 (Tourist Camps) authorizes the Department of Health and
Rehabilitative Services to regulate the location of tourist camps (which
are defined as any place where two or more tents, tent houses, or camp
cottages are located and offered for sleeping or eating accommodations).
Because many such camps are located in rural areas, this statute is of con-
cern here. The land use regulation possible under such a statute would re-
sult from grating or denying a permit for establishing such a camp. This
statute would cover most fish camps, as well as some of the major springs
used for recreation.
Chapter 601 (Florida Citrus Code), and Chapter 573 (Florida Marketing
Laws) regulate aspects of production and marketing of citrus, celery, sweet
corn, foliage plants, watermelons, soybeans, tobacco and peanuts. These
production restrictions and market controls have only an indirect effect on
land use. Control of land use as such is not the purpose of the legislation.
Chapter 193 (Assessments), and the next three to be mentioned, involve
the power to tax. Taxation is an indirect way to regulate land use. Of
significance here is the provision that certain crops are deemed to have no
ascertainable value until they are sufficiently mature for market or are
actually offered for sale to the consumer. The effect of this type of pro-
vision is to encourage production of these crops. Special consideration,
under certain conditions, is also given those who maintain land for outdoor
recreation or parks, which could encourage this type of land use.
Chapters 192, 196 and 222 (Homestead and Exemptions) recognize the
principle of "homestead" as a legal institution and grant to it certain tax
and levy exemptions. By law, the homestead is exempt from forced sale of
the request of a judgment creditor, and can have only three kinds of liens
attached to it: (1) liens for taxes and assessments; (2) obligations con-
tracted for purchase and repair of the homestead; and (3) obligations for
labor performed on the premises. From a land use point of view, this
favorable treatment encourages home ownership. A homestead is defined as
one-half acre within a municipality or up to 160 acres of contiguous land
outside of a municipality. The land must be contiguous and used as your
residence to be eligible for special treatment. For example, if you owned
200 acres, but only 60 of which are contiguous, the homestead exemption
would apply only to the 60 acres.
D. Which statutes have a more direct impact on land use in agri-
The statutes to be considered here, under proper circumstances, can
be employed to prevent, or substantially curtail, certain types of land
use in the areas covered by the legislation. Some of the statutes have a
much broader application than others and some, though significant as land
use controls generally, have important exemptions for agricultural uses.
Chapter 125 (County Government) allows the counties to adopt building
codes and authorizes the abatement of water pollution and shore erosion of
lakes. Both of these powers could be used to prevent certain types of uses
or structures on the land as well as limiting the kinds and extent of land
use activities around lakes.
Chapter 161 (Beach and Shore Preservation Act) applies only to agri-
cultural use of land in the coastal areas. It establishes a 50-foot con-
struction setback line in coastal areas and prohibits any construction sea-
ward of that line without a special variance. The importance of this
statute to agricultural landowners is limited. However, with the develop-
ment of aquaculture and mariculture, some members of the agricultural
community could well be affected by this statute.
Chapter 163 (Intergovernmental Programs) authorizes several sig-
nificant and substantial land use devices. First, it authorizes the adoption
of zoning ordinances and subdivision regulations by counties and incorporated
municipalities. Further, it authorizes certain powers with respect to
community redevelopment plans, and finally, it requires that every
municipality and county of the state prepare and adopt a comprehensive land
use plan by July 1, 1979.
Under any of these provisions, certain kinds of land uses can be pro-
hibited in designated areas or confined to other areas. As a practical
matter, most of the restrictions adopted can be expected to be and generally
have been directed at controlling commercial, residential or recreational
development rather than traditional agricultural use. As a result, except
for the possibility of confining agricultural uses to designated
geographical areas, further restriction of agricultural land use under this
statute is possible but not very likely.
Chapter 166 (Municipalities), known as the Municipal Home Rule Powers
Act, repeats and amplifies provisions of the Florida Constitution. It grants
to municipalities power to enact ordinances for conducting municipal govern-
ment performing municipal functions, and rendering municipal services.
Implicit in this is the power to restrict land use when necessary so long
as the action is proper as an exercise of the police power.
Florida Constitution, Article 8, sec. 1, (f), authorizes counties
operating without a charter to have such powers of self government as may
be provided by special or general law. This power would certainly enable
a county to regulate land use under the general police power as long as
the ordinances that might have some application in municipalities of that
county are not inconsistent with ordinances enacted by municipalities
themselves. Most of Florida's counties are non-charter counties.
Florida Constitution, Article 8, sec. 1 (g), authorizes counties
operating under charter to have all powers to self government not incon-
sistent with general law or with special laws approved by vote of the
electors. The charter of the county specifies which ordinances will pre-
vail in the event of conflict with municipal ordinances. This grant of
power is significantly broader than that granted to non-charter counties
and allows land use regulations primarily in the form of zoning ordinances,
subdivision regulations, and codes that could have a significant impact on
agricultural land use.
Chapter 253 (Land Acquisition Trust Fund) regulates the extent to
which a landowner can dredge and fill in or on the navigable waters of the
state. In addition, it also contains provision with respect to the
establishment of bulkhead lines for construction filling in navigable waters.
Since a permit is required for any dredging and filling covered by the
statute, the Department of Environmental Regulation can, to a certain extent,
control the use of land associated with the dredging or filling by granting
or denying the permit application.
This statute affects only agricultural lands bordering on navigable
waterbodies. Even then, it is only for those landowners who have a need to
dredge and fill in order to improve or carry out activities on the land
covered by the statutes.
Chapter 266 (Historic Preservation) establishes historic preservation
areas for Pensacola, Tallahassee, Boca Raton, Tampa, Hillsborough County,
St. Augustine and Key West. Although little agriculture occurs in the
designated areas, the Boards of Trustees for each of the areas are given
substantial powers to regulate land use in their respective areas. Such
powers may extend to any and all agricultural land use involved. In most
cases, the authority extends beyond the boundaries of the city to areas of
the county that might be of historic interest. Conceivably, it could
affect the use and preservation of historical farm structures, for example.
Chapter 333 (Airport Zoning) authorizes any governmental unit that has
an airport hazard area within its boundaries to adopt zoning regulations.
Such zoning regulations could restrict substantially the kind and intensity
of land use that is carried on in the affected area. Since most airport
areas are located away from population centers and in rural areas, the im-
pact on agricultural lands is significant. Except to regulate the heights
and kinds of structures or trees and their proximity to the airport areas,
little regulation is actually likely to affect most kinds of agricultural
Chapter 373 (Water Resources) authorizes the regulation by water
management districts of water use, water impoundment, storage, well drill-
ing, and other controls on the quantity of water used. Since many types
of agricultural land use require large quantities of water, these powers
may result in substantial restrictions on land use. (For further infor-
mation on the powers of water management districts, and water use permits,
see SUMMARY GUIDE TO FLORIDA'S WATER RIGHTS, IFAS Circular 412.)
Chapter 377 (Energy Resources) authorizes the Department of Natural
Resources to make regulations with respect to exploration, drilling and
production of oil and gas. It authorizes limits on the amount of oil and
gas that can be taken from a pool. While restrictions made possible by
this statute are not likely to affect agricultural uses themselves, they
may affect the land's value and, indirectly, land use.
Chapter 380 (Environmental Land and Water Management) allows for
certain areas of the state to be designated as "areas of critical state
concern." After designation, land use restrictions must be adopted by the
counties or they will be imposed by the state. These restrictions must be
designed to control those types of development having a regional impact.
Agricultural uses of land in such areas are exempted from regulation by
specific statutory provision.
Agricultural uses of land are not likely to be affected by the pro-
visions relating to developments of regional impact, although in certain
circumstances they might come within the scope of the regulations. For
example, a feedlot or a dairy of considerable size might be considered as
having a regional impact, but as a practical matter, most agricultural uses
would not be affected.
The guidelines adopted by the Department of Administration list the
following uses as presumably of regional impact: airports, attractions and
recreational facilities, electrical generating facilities and transmission
lines, hospitals, industrial plants and parks, mining operations, office
parks, petroleum storage facilities, port facilities, residential develop-
ments, schools, and shopping centers.
Chapter 387 (Pollution of Waters) requires permits for draining sur-
face water and discharging sewage into underground waters. The denial or
the granting of a permit will have a direct and significant effect on the
use of land associated with the application. As a practical matter, most
agricultural uses do not generate sewage that would be injected into under-
ground waters. Restrictions regarding drainage are more important as it
may be necessary to drain surface waters for ranching or farming.
Chapter 403 (Environmental Control) authorizes the Department of
Environmental Regulation to establish regulations pertaining to air and
water pollution, and to require permits for certain activities involving
the quality of air and water. To date, most regulations refer to non-
agricultural sources of pollution because of the difficulty in identifying
what is known as "non-point source" pollution. Non-point source pollution
involves such things as fertilizer leaching and area run-off. Technology
is being developed that might result in restrictive regulations of agri-
cultural operations involving this type of pollution discharge. However,
if the trend toward the adoption of best management practices is continued,
this danger is diminished considerably.
Chapter 553 (Building Construction Standards) authorizes regulation of
building construction, including agricultural construction, through codes
covering plumbing, electrical installation, glass, and state minimum build-
ing standards. Here, as in the case of several previous statutes, the
regulation is accomplished through control over the structures necessary to
conduct the particular land use. However, focus here is upon acceptable
quality and safety in construction, not on land use as such.
Chapters 581 and 585 (Department of Agriculture and Consumer Services)
authorize, among other things, control over the raising of certain types of
plants and animals deemed to be pests or dangerous to other agricultural
interests in the state. Included in this category are diseased or infected
plants and associated pests, infected animals and feeds, etc. The Depart-
ment of Agriculture is given authority to destroy infected specimens. For
example, it has the authority to destroy all trees and plants in or adjacent
to commercial citrus groves which are infested by the burrowing nematodes.
Or to establish quarantines for designated areas, which may include groves,
orchards, herds, flocks, nurseries or even counties.
The impact of these pieces of legislation on land use is obviously far
reaching and may cause certain uses to be terminated or replaced with other
more acceptable uses.
Chapter 582 (Soil and Water Conservation) provides for soil and water
conservation districts and allows them to adopt land use regulations for
certain purposes within the districts (for example, to prevent soil erosion).
The effects on agricultural land are direct and may be substantial.
Chapter 588 (Legal Fences and Livestock at large) imposes liability up-
on an owner for livestock that may run at large or stray from his land,
imposing a practical obligation on the owner to fence his property. The
fence must meet minimum standards imposed by this law to be considered legal.
The effect on land use is similar to building codes.
E. How can the government take property and which statutes allow it
to do so?
Every state, as an inherent element of its sovereignty, has the power
to appropriate private land or interests in land for a public purpose. This
power is called the "power of eminent domain" and is the ultimate land use
restriction, because title to the land or some of the ownership rights pass
from private hands to public hands. This power may be exercised either by
the state, or even by a corporation or an individual to whom the state has
delegated this power. Counties, municipalities, public service corporations,
special districts and governmental agencies possess this power and use it.
The statutes considered in this section, are for the most part authorizations
to agencies to enable them to use this power.
As with most powers under our system of government, the exercise of
the eminent domain power is not unlimited nor unrestricted: the property
cannot be taken except for a public purpose and only if just compensation
is paid. If the proper procedures are not followed in exercising this
power, or if the regulatory powers previously discussed are abused, the
result might be what is known in law as a "taking." In this situation, the
affected landowner might exercise certain rights and powers of his own.
"Taking of property" is a complex problem and will be discussed in the next
Chapters 73, 74, 125, 127, 166, and 421 (Eminent Domain, Counties)
authorizes the exercise of eminent domain powers of the state and specifies
the procedures involved in their exercise. They also authorize the delegation
of this authority to such other entities as municipalities, railroad and
canal companies, telegraph and telephone companies.
Chapter 153 (Water and Sewer Systems) authorizes the use of eminent
domain power with respect to county water systems and sewer systems.
Chapter 258 (State Parks and Preserves) authorizes the exercise of
eminent domain power to acquire lands for state parks, wilderness areas and
Chapter 259 (Land Conservation) authorizes the acquisition of lands de-
signated as environmentally endangered. Examples include areas of ecological
significance which, if developed, would cause deterioration of submerged
lands, inland or coastal waters and marshes or wilderness areas.
Chapters 375 and 592 (Outdoor Recreation and Conservation) authorize
the acquisition of lands for parks, public beaches, and recreational areas
by the Department of Natural Resources, Division of Recreation and Parks.
Chapter 704 (Easements) recognizes the common law rule that, under
certain circumstances, an easement may be granted by a court to owners of
otherwise landlocked tracts of land. This statute provides for a right-of-
way in a situation where land used for agriculture or for timber raising is
hemmed in by lands, fencing or other improvements so that there is no
practical route of access. In such cases, a right-of-way easement will be
granted to the nearest practically accessible public or private road. The
owner who received the easement may now make use of his own lands in a manner
which might have been impossible previously. The owner of the land over
which the easement crosses is limited in that he cannot interfere with the
easement. This statute, though technically not involving the powers of
eminent domain, is an example of how one individual, rather than the state,
can legally "take" an interest in land from another individual.
PART IV "TAKING"
A. Why is the law of "taking" of concern to owners of agricultural
Only a few years ago, "taking" was not considered to be much of a
problem, but today, it has become a national concern. The issues are
complex and the solutions are unclear.
B. What is "taking"?
Briefly, a "taking" is a decrease in the value of property which can
be attributed directly to an unreasonable (arbitrary, confiscatory, or
discriminatory) exercise of governmental police power or with governmental
approval. Police power is the power inherent in every government to regu-
late in order to promote the health, safety and welfare of the public.
When this power is misused, a "taking" results.
If a county commission were to order that no buildings could be higher
than the major's house, people who wanted to construct buildings higher
than the mayor's house would suffer a loss in value of their land by a
"taking" of the right to make a particular use of their land, the county
commission has imposed a restriction that is arbitrary. However, if a
county commission were to order that no buildings could be higher than
30 feet because local fire trucks could not fight a fire that was higher,
the standards would be reasonable and there would be no "taking."
Another example of a "taking" would be a law that is reasonable but
which confiscates property. Suppose the legislature recognized that bodies
of water were valuable becuase they tend to warm the air in their vicinity
and that citrus production could be increased because of the association
of the waters with milder winters. Acting on these assumptions the
legislature enacts a law which requires all owners to convert 10 percent of
their property to lakes and ponds and to deed the converted property to the
state. This law would produce a "taking" because it confiscates the property
of the landowners without the payment of compensation even though it is
reasonable in other respects.
If the same law included a provision to compensate grove owners for
the property that was flooded and for lost profits attributable to re-
duced grove size, it might even be defended as a valid exercise of the
power of eminent domain. At least it would not be considered a confiscatory
use of the police power.
A final example of a "taking" would be a discriminatory exercise of the
police power. As a general rule, police powers may not be exercised in a
discriminatory manner. As far as land use is concerned, this means that
similarly situated land owners cannot be treated dissimilarly.
Suppose a landowner in a residential area were given permission by the
county commission to use his land for a slaughterhouse. If this exception
or variance is granted for one landowner's benefit and profit rather
than the public's benefit and while being denied to others situated
similarly, this permission would be discriminatory and would result
in a "taking" of the rights of the residential landowners to make a
more profitable use of their land.
In each example there has been an exercise of a police power which
directly caused a reduction in the value of land. If the "taking" was
the result of an arbitrary exercise of power, the remedy is to repeal
the action. If the exercise was confiscatory, the remedy is either to
repeal the law or pay just compensation. Finally, if the "taking" re-
sulted from discriminatory exercises of power, the remedy is to either
repeal the special law or enforce it equally.
C. What is a decrease in property values for "taking" purposes?
If an exercise of the police power for promoting the public health,
safety, welfare and morals of the community is neither arbitrary, con-
fiscatory nor discriminatory, even though it may decrease the value of
land, it does not constitute a "taking." A "taking" results only from an
unreasonable exercise of this power.
Moreover, a "taking" results only when private property rights are
sacrificed to promote public health, safety, welfare or morals. In
addition, to prove a "taking," the land or property right must have a
market value that has been demonstrably diminished. If you claim an
economic loss, you must prove that the fair market value of the property
is less after the action taken than it was before the action.
D. Can a "taking" result from actions other than the exercise of
the police power?
No. Exercise of the power of eminent domain always implies just
compensation, so no "taking" is involved. The taxing power, which is the
other basic broad power of government, cannot legally cause a "taking"
because the purpose of a tax is not to regulate in a strict sense, but to
raise revenue. The law deems it immaterial that a tax may in fact promote
the public welfare or reduce the value of property. While the government
can sell private property for non-payment of taxes, no sacrifice of private
property for public benefit is involved. The purpose of a tax sale is to
E. What is just compensation?
Just compensation is nothing more than the payment of fair market
value for the property right or rights that were taken.
F. How much property must be taken without compensation before a
landowner has a right to relief?
Florida courts do not seem inclined to grant relief to complaining
landowners unless a substantial direct taking is claimed and proved. This
means that the individual's loss is substantial in comparison to the public
benefit which is generated by the governmental action. Courts sometimes
seem to suggest that all value must be taken before relief will be granted.
That is, the individual can make no reasonable use of his property whatso-
ever as a result of the governmental restriction. As a practical matter,
however, relief is often granted when there has been considerably more than
a 50 percent reduction in value.
Single copies are free to residents of Florida and may be
obtained from the County Extension Office. Bulk rates
are available upon request. Please submit details of the
request to C. M. Hinton, Publication Distribution Center,
IFAS Building 664, University of Florida, Gainesville,
This publication was printed at a cost of $589.99, or
23 cents per copy, to inform Extension workers, land-
owners and the public about the essential features of
Florida's land use law
COOPERATIVE EXTENSION WORK IN AGRICULTURE AND HOME ECONOMICS
I(ctr of r.1a., 8 .nd June 30, 1914)
Coopers t i Exten:lon Serv.ce, IFAS, University of Florida
and United States Department of Agriculture, Cooperating
K. R. Tefertiller. Director
'r :'-- 1-1 1 ."