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Group Title: Circular - University of Florida Institute of Food and Agricultural Sciences ; 421
Title: Agricultural land ownership
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Permanent Link: http://ufdc.ufl.edu/UF00067206/00001
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Title: Agricultural land ownership private rights and the public interest
Series Title: Circular
Physical Description: 13, 1 p. : ; 28 cm.
Language: English
Creator: Abbitt, Ben, 1940-
Florida Cooperative Extension Service
Publisher: Florida Cooperative Extension Service
Place of Publication: Gainesville Fla
Publication Date: 197-
 Subjects
Subject: Land tenure -- Florida   ( lcsh )
Land use, Rural -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Bibliography: Includes bibliographical references (p. 13).
Statement of Responsibility: Ben Abbitt.
General Note: Cover title.
General Note: "3-2M-77"--P. 14.
Funding: Circular (Florida Cooperative Extension Service) ;
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Bibliographic ID: UF00067206
Volume ID: VID00001
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 20614025

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HISTORIC NOTE


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
(EDIS)

site maintained by the Florida
Cooperative Extension Service.






Copyright 2005, Board of Trustees, University
of Florida





I |Circular 421




Agricultural Land Ownership:

Private Rights and the

Public Interest


Florida Cooperative Extension Service
Institute of Food and Agricultural Sciences University of Florida
John T. Woeste, Dean








TABLE OF CONTENTS


Page

. . . ii


ABSTRACT. . . . . .


POPULATION GROWTH . . . .

Demographic Change .. . .
Demands on Agricultural Land . . .

LAND--FIXED RESOURCE . . . .

LAND SETTLEMENT AND INFLUENCES AFFECTING USE. .

LAND USE LEGISLATION IN FLORIDA . ...

REGIONALISM . . .. . .. .

SUB-STATE AGENCIES IN FLORIDA . . ..

PRIVATE RIGHTS AND AGRICULTURAL LAND OWNERSHIP. .

THE PUBLIC INTEREST AND AGRICULTURAL LAND OWNERSHIP

Eminent Domain .. ...........
The Public Interest. .. .. .. .. ..
Just Compensation . .........
Police Power .. . . . .

EMINENT DOMAIN AND POLICE POWER: A DIFFERENCE. .


. 1

. . 1

2

3

..... 6



7

7

8
. . 6



. . 8


CONCLUSION . .. .. . .......... . 12

REFERENCES. . . .... ... . 14


. . .








AGRICULTURAL LAND OWNERSHIP:
PRIVATE RIGHTS AND THE PUBLIC INTEREST

Ben Abbitt


POPULATION GROWTH
During the past two decades, the United States' population has grown

by one-third. Florida's population growth has exceeded the national trend

and is expected to expand even more rapidly in the future. There were
more than 8 million residents in the state in 1975, and current projections
indicate that, by 1980, just under 10 million persons will be permanent

residents. In addition, Florida's numerical population growth rate has

recently overtaken California's as the fastest in the nation.

Demographic Change
Recent data indicate that rural Florida has experienced significant
population growth since 1973. From 1973 to 1974, population declined in

the combined Standard Metropolitan Statistical Area (SMSA) counties in

Florida by 4.8 percent, while the nonSMSA counties experienced an upward
growth rate of 6.8 percent over the previous year.!/ This migration is
expected to continue as both young and retired persons move to rural areas

in Florida in search for the amenities of country living. These amenities

include, among others, personal privacy and relief from city congestion.
Demands on Agricultural Land
Recent population growth and the demands created by Florida's populace
are placing increasingly competitive demands upon agricultural land in the

urban-rural fringe. The urban-rural fringe includes land located along the

SAn SMSA county is defined as having at least one population center
of 50,000 or more persons. There are presently fourteen SMSA's in Florida
that encompass twenty-one counties.
BEN ABBITT is an extension farm management economist and assistant professor
of food and resource economics stationed at the Lake Alfred AREC, Lake Alfred,
Florida. Acknowledgement is due Mr. James S. Wershow for providing valuable
resource material.









boundaries of the city, in the suburbs, and in unincorporated areas near
the city proper. This increase in demand for agricultural land is reflected
in new housing subdivisions, more roadways,additional schools, and recre-
ational facilities to serve this population increase. Signs of economic

growth (increase in personal and community income) are reflected in expanding

suburbs and new commercial concerns which create strip development along
transportation lines. Leapfrog industrial developments are also springing
up in agricultural areas. These developments are characterized by large
open tracts of land between developing areas. This demand for land other

than for agricultural production often causes agricultural land values to

rise.
At the same time, citizen objections to farming operations place
greater restrictions on farming activities. Odor from livestock pens,

tractor noise at early hours, and crop spraying and dusting are the more

common complaints registered. If legislation should result from these
complaints, it may cause production costs for farm operators to increase.
For example, upgraded water quality standards for new subdivisions may

force ranchers to discontinue use of one system of treating livestock
wastes in favor of another which may be less efficient and, therefore,
more costly.
LAND--FIXED RESOURCE
Land has long been recognized as one of Florida's most valuable

resources. It is a fixed resource, one whose quantity is stable over

time. Since Florida's population is placing increased demands on this
fixed quantity of land, that portion of land currently in agricultural
production often is not used in its most socially.efficient use. A

socially efficient use is defined as that use which reflects the public's








-3-

best interest. Rather than employing agricultural land in its most

socially efficient use, it is sometimes used in a manner to earn the

highest possible income. This use is that which reflects the individual's

best interest. The public, however, may suffer the financial consequences

from this- private use. Increases in local tax millages may result when

public services are provided for new housing and commercial developments.

In certain instances, however, local tax millages have reportedly decreased

due to an increase of persons being added to the tax roles. Further research

is needed to measure the fluctuations in tax revenues in rural areas where

citizens settle and retire. Research questions include: Does the increase

in local tax revenues from these new citizens "cover" the services they

receive, and if not, how large is the revenue deficit? Finally, if there

is a deficit, who absorbs this additional tax load?

LAND SETTLEMENT AND INFLUENCES AFFECTING USE

Perhaps the most successful national governmental land legislation

was the enactment of the Homestead Act of 1862. The sparsely populated

western frontier of America was settled and farmed with little government

intervention once claims and legal boundaries were established. In the

United States, the owner-operated family farm became the most common type
of farm enterprise.

As time passed and educational levels advanced, mechanization of

production techniques began to play a major role in the lives of American

farm operators. The drought and subsequent "dustbowl" of the 1930's and

increased technology resulting in greater production efficiency, began
influencing small, limited resource farm operators to seek other employment.

The pace of mechanization has continued to increase. More and more, farm

operators are leaving the farm due to the rising cost of capital equipment,







-4-

rising interest rates, competition for uses of agricultural land other than

for agricultural production, and nonfarm employment opportunities.

As a result of this high cost of capital, urban advancement, and

alternative employment opportunities, agricultural land is being taken

out of production and employed in other uses. Urban advancement or encroach-

ment is defined as the expansion of residential, commercial, and industrial

activities in the urban-rural fringe. To preserve land for agricultural

use, governing bodies are beginning to enact restrictive legislation to

regulate and control land use practices. These restricting laws affect
agricultural producers as well as related, supportive industries.
LAND USE LEGISLATION IN FLORIDA

Florida, with its economic livelihood based upon its agricultural,

construction, and tourist industries, has taken a position as a national

leader in regulating and restricting land use practices. In 1972, the

Florida Legislature enacted legislation to protect the state's land from

unplanned and misguided use.

The Land Conservation Act of 1972 allows for use of state funds for

the purchase of privately owned endangered lands and outdoor recreation

lands.2/ In addition, the Act provides for the conservation and protection

of environmentally unique and irreplaceable lands as valued ecological

resources of the state [1]. Hence, privately owned land can be purchased

by the government if the land area is considered to be valuable to the
state as a natural resource.

The Environmental Land and Water Management Act of 1972 also places

restrictions on land ownership and use. It establishes a basic procedure

for the identification and regulation of geographic areas in land

SCopies of this Act and those that follow may be obtained by
writing the Office of the Secretary of State, Tallahassee, Florida 32304.







-5-
development activities of state and regional concern and impact. Further-

more, this Act enables state agencies to take a vital role in land use
management through the determination of Areas of Critical State Concern
(ACSC) and Developments of Regional Impact (DRI) [2]. Once a land area
has been designated an ACSC by the governor and cabinet, restrictions are

placed on the land which regulate its future use. The Florida Keys and

the Green Swamp area of middle Florida have recently been designated as
ACSC. In accordance, regulatory guidelines are being drafted and enforced
on land use practices in these areas.
DRI's are generally defined as any development which affects the

citizens of more than one county because of its character, magnitude or
location [3]. Examples of DRI include airports, hospitals, industrial
parks, schools, and shopping centers. Affected localities as well as
the governing Regional Planning Council review the proposal for the DRI.

The governor and cabinet have final responsibility for making a decision

on the proposal, if disputes should arise.
Florida contains over 34 million acres of land of which a little
less than half (16 million acres) is farmland. In addition, over 5 million
acres of Florida land are considered pasture and range. Thus, over 21

million acres (62 percent) of Florida's land area, is employed in agriculture
and supportive uses [4]. Land areas designated as ACSC and the construction
of DRI in Florida in the past have, and will, in the future, undoubtedly
include agricultural land. Hence, land is being taken out of agricultural
production and employed in uses that conserve land in the public interest.

In 1975, the Florida Legislature passed the Local Government Compre-
hensive Planning Act. According to the provisions set forth in this Act,
each county, municipality, and special district in the state is required







-6-

to prepare and adopt a comprehensive plan on or before July 1, 1979

[5]. One required element of each comprehensive plan is a future land use
plan. The formulation of this land use plan and its subsequent implemen-
tation will directly influence the use of one's land and, indirectly, land
ownership patterns. Implementation will occur through local government

zoning ordinances, subdivision ordinances, building codes, and capital
improvement programs, each of which is required to be consistent with the
land use element. In addition, other required elements of each comprehensive
plan will indirectly influence land use practices. A traffic circulation
element and recreation and open space element will require that land be

set aside for public use. This legislation is a means to restrict and
control land use practices while providing protection for Florida citizens
from the unwise use of the state's fixed quantity of land resources.
REGIONALISM

A major public issue today is meeting the service demands of citizens
within the framework of a public delivery system. Many state legislatures,
including Florida's, are creating and funding governmental sub-state
agencies to plan and manage resource use while delivering public services.

This physical expansion of government agencies into the state is often
termed regionalism.
Regionalism has different meanings for different people. To many,
regionalism represents a conference arrangement through which local
governments study and plan to solve common problems. Ad hoc committees
established by community leaders to study and make recommendations to
solve a particular problem is an example of this conference arrangement.
In Florida, regionalism begins with the recognition that new government
arrangements are needed to guide community development activities which








-7-

include decisions on land use practices. This recognition is manifested
by the physical expansion of state agencies into the counties.
SUB-STATE AGENCIES IN FLORIDA

Two of the more familiar sub-state agencies in Florida are the ten

Regional Planning Councils and the five Water Management Districts. The
areas of jurisdiction for these sub-state agencies are multi-county units

that encompass all 67 Florida counties. The Regional Planning Councils

and Water Management Districts have the joint responsibilities of providing

guidelines to insure orderly use of two of Florida's most valuable resources--
land and water. The Regional Planning Councils have been designated
clearinghouses to review Developments of Regional Impact applications and

to assess proposals for Areas of Critical State Concern. The governing

boards and staffs of the Water Management Districts have been charged

with the responsibility of regulating and, thereby, conserving the water
resources of thestate.
PRIVATE RIGHTS AND AGRICULTURAL LAND OWNERSHIP

There are few subjects fraught with more emotion and less understanding

that the rights of private property ownership and the constitutional limits
to public control of those rights. It is a highly charged legal issue and
a serious matter of both state and national concern. The national congress

is currently debating land use legislation. Although passage of this

legislation is not expected in 1976, passage and enactment of some type of
national land use legislation is inevitable in the near future.
The belief that every man has the right to do what he wants with his

property is widely held. In addition, it is understood that the rights to

make money by buying and selling land will not be restricted. Land owners

have traditionally emphasized the economic aspects of property, viewing it






-8-
primarily as a commodity. Ownership of land has implied certain property
rights concerning its applied use. The three most common property rights
are the right to possession, use, and disposition. Hence, individuals tend

to regard ownership and use of land as a matter of personal rather than

public choice.
The practice by agricultural land owners of "claiming" property rights
had not been challenged until recently. Until now, there has been little

reason for confrontation between political, social, and economic factions

since there has been an abundance of land to be claimed by a small populace.
However, with an increasing population and the realization of a fixed
quantity of agricultural land, the situation has changed.

Land use practices and implied property rights are being challenged
by a number of parties. Agriculturalists and others are beginning to
organize and air their views in an attempt to insure that prime agricultural
land is kept in production. At the same time, land speculators are buying
prime agricultural land in the urban-rural fringe for speculative and

immediate developmental purposes. Not to be forgotten are the civic
organizations who campaign for additional land for community development
projects such as scenic parks and recreation playgrounds. Finally, community
groups base their arguments for additional land needs on the,premise that

a growing community requires land for new schools and sewage abatement plants.
THE PUBLIC INTEREST AND AGRICULTURAL LAND OWNERSHIP

The farm operator and others are provided recourse from the effects
of urban encroachment by the United States Constitution. The colonial
draftsmen placed in the Constitution the following twelve words. "...nor

shall private property be taken for public use without just compensation."[6]
In addition to the Fifth Amendment, the Fourteenth Amendment insures
that no state shall "deprive any person of life, liberty, or property without







-9-
due process of law..."[7] Analogous provisions in the Florida Constitution

Declaration of Rights insure citizens the "inalienable rights...to acquire,

possess and protect property..." and, similar to the federal Fourteenth
Amendment, guarantees that "no person shall be deprived of life, liberty,

or property without due process of law..."[8] Explicit in these consti-

tutional amendments are the terms eminent domain, public use, taking, and

just compensation. These terms are quite important for a clear understanding

of the real meaning of the public interest.

Eminent Domain

Through eminent domain (the power of the government to condemn),

physical possession and use of property are taken from a private owner and

transferred to the public. Key to the power of eminent domain are the
requirements that private property may be taken by the government only for
public use.

The power of eminent domain is not specifically granted by the

government but is implied to exist. The Fifth Amendment to the United

States Constitution defines eminent domain in two ways: first, the
federal government may only take land for a public use, and, secondly,

where land is condemned, the owner must be paid just compensation for

what hasbeen lost. Unless the condemnation comes within these two limi-

tations, the taking, or regulation, is unconstitutional. Specifically,
taking refers to the land being condemned without just compensation being
paid the owner.

The Public Interest

The term, public interest, is a stumbling block for many in under-
standing the concept and practice of eminent domain. The definition of
public interest is very broad and encompasses many connotations. Public







-10-

interest is synonymous with general welfare, the welfare of the public,

or the public right. Contrary to popular opinion, public interest does
not necessarily mean that the property taken must actually be put to use
by the public. Private property that is taken may actually be employed

in a private use. An example is property taken to clear an urban blight

area being resold to private parties for developmental purposes.

Just Compensation
Just compensation is another term misunderstood by many, including

farm operators whose land is condemned for private use. Because the

doctrine of public interest is often broadly interpreted by the courts,

just compensation is one important limitation on the exercise of the
power of eminent domain. Generally, a landowner is entitled to be

compensated anytime the federal government takes some part of the real or

personal property owned. Interference by the federal government with any

interest in property, must be compensated according to law.
Fair market value usually determines what is just compensation in
the majority of cases. Fair market value is the price which the property

would bring at the time of taking if offered by a willing seller to a

willing buyer who is not obligated to buy. Therefore, factors which affect

the price that a purchaser would be willing to pay are taken into consid-
eration when compensation is awarded.
Police Power

Complementary to the Federal Constitutional "due process clause"

(Fourteenth Amendment) and "taking clause" (Fifth Amendment) is the
authority of government to regulate land in the interest of public health,
safety, and welfare. This regulation is carried out by exercise of the

police powers. Key among recent use of the police power has been state







-11-

and local enactment of land use regulations, including zoning and sub-

division laws, wetlands protection, and coastal construction setback lines.
In Florida, property rights to land are held subject to the reasonable
exercise of the police power in furtherance of the general welfare, i.e.,

public interest.

It is widely believed that police powers are constrained by consti-

tutiQnal due process and just compensation requirements. The general
rule according to Justice Holmes in Pennsylvania Coal vs. Mahon "...is

that while property may be regulated to a certain extent, if regulation

(police power) goes too far it will be recognized as a taking."[9] That

is, land is regulated without just compensation being paid to the owner.
Litigation is the usual means the farm operator and others use to determine

if exercise of the police power seems unduly restrictive.
EMINENT DOMAIN AND POLICE POWER: A DIFFERENCE

To many, eminent domain and the police power seem identical but,

there is a distinct difference between the two. Like eminent domain,
action enacted pursuant to the police power must benefit the public;

however, as distinguished from eminent domain, a valid exercise of the

police power may restrict the use of private property without payment of
compensation. Thus, land restricted by the police power is not constituted
as a taking (where compensation is not paid).
Due to its restrictive nature, the exercise of police powers must

necessarily clash with the full employment of property rights by an owner.
Yet, it has been established in Florida by the courts that all property
rights are held subject to the police power to further the public interest.
Since recent legislation in Florida is based on the exercise of

police powers, it is appropriate to briefly summarize the general state







-12-
of the law in Florida regarding the exercise of the police powers.
First, property rights are held and enjoyed subject to reasonable
exercise of the police power in furtherance of the general welfare. Hence,

the government can reasonably restrict use of privately owned land when it

deems its actions necessary for the good of the people [10].
Secondly, regulations implemented under the police powers will not
be deemed reasonable if they are arbitrary. The detriment to the regulated

owner should be outweighed by the public benefit realized by the regulation's

application. The responsibility of proving that a regulation is not fair
rests with the challenger, who must also rebut the presumption of validity
attached to the regulation placed on the property [11].
Thirdly, police power regulations will not be deemed reasonable if

they are judged confiscatory. Through regulation, a property owner may

not be completely deprived of the use of his land. In other words, just
compensation must be paid to the owner whose land is regulated for public
use [12].

Finally, police power regulations will not be judged reasonable by

the courts if they are discriminatory [13]. Thus, no special treatment

will be given to individual landowners.
CONCLUSION

The courts have been determining where the private rights of

agricultural land ownership end and where the public Interests for agri-

cultural land use begin. The farm operator must comply with the judicial
interpretations of the courts regarding use of the police power and eminent

domain. It is commonly recognized that the rights associated with simple

land ownership must be based on law, for without law there can be no rights.

Laws have been created and followed, yet no definite precedents have been set.







-13-

Many questions remain unanswered. Just what is the public interest

or welfare? Does the definition need to be uniform across county and

state lines to insure consistent judicial interpretation? Or will the

solution to determine rights of ownership continue to be found in individual

court settlements throughout the land? How far can a public body restrict

the use of private property without constituting a taking which should be

compensable to the landowner? These questions and others have, and will

continue to be, of increasing importance to the farm operator in Florida.

Perhaps the major questions that need answering are: What are the

private rights with respect toagricultural land and what is the public

interest? One thing, however, is certain--as competition for land resources

increases in Florida, the issue of private rights and the public interest

of land ownership will intensify. Only time, continued judicial interpre-

tation of the law, and possibly state and national legislation will determine

the final outcome. This outcome will undoubtedly begin to modify the
agricultural industry in Florida as we know it today.

REFERENCES
[1-2] Brown, James A. "Agricultural Land Use Legislation." Paper distributed
at Community Resource Development Training Workshop, Florida,
January 1975.

[3] Sullivan, Jackson E., editor. Withlacoochee Regional Planning Council
Newsletter, Vol. 1, No. 1, November/December 1974.

[4] Clayton, Kenneth C. "Comprehensive Community Planning: A Solution
to Florida's Growth Problem?" Florida Cooperative Extension
Service, IFAS, Florida Food and Resource Economics Newsletter,
No. 6, September/October 1975.

[5] Pierce, Jo Ann, editor. Agricultural Growth in an Urban Age.
Institute of Food and Agricultural Sciences, University of
Florida, Gainesville, Florida, February 1975.
[6-13] "Takings, Due Process and the Police Powers: An Analysis of Judicial
Approaches to Land Use Regulations in Florida." Staff Report
No. 1 to the Governor's Property Rights Study Commission,
January 1975.

































COOPERATIVE EXTENSION WORK IN AGRICULTURE AND HOME ECONOMICS
(Acts of May 8 and June 30, 1914)
Cooperative Extension Service, IFAS, University of Florida
and United States Department of Agriculture, Cooperating
K. R. Tefertiller, Director





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, Florida 32611.


This publication was promulgated at a cost of $277.80, or 13.9 cents per copy, to inform members of civic groups and
farm organizations on the current situation concerning private rights and public interest of land ownership.


3-2M-77


'a~a~n~n~nasC~i~




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