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ARTICLES
 PRIVATE
PROPERTY RIGHTS AND CONSTITUTIONAL TAKINGS
Robert
Riggio
(September,
1997)
Private Property Rights and Constitutional Taking were the subject of
a day-long workshop held by the Section in June. Not surprisingly, the
recent Bert J. Harris Private Property Rights Protection Act was the subject
of much discussion. In addition, the speakers and written materials also
addressed other aspects of takings law including an overview of recent
cases in this area as well as the Florida Land Use and Environmental Dispute
Resolution Act.
Property rights concerns now permeate virtually all environmental and
land use issues. Unfortunately, just what these property rights are and
under what circumstances their loss constitutes a compensable taking is
wide open to debate. To further complicate matters, there has been relatively
little judicial guidance since other considerations such as ripeness, exhaustion
of administrative remedies and a fundamental disagreement among the courts
as to what are reasonable investment-backed expectations have precluded
many takings claims from ultimately being decided on their merits. As discussed
in the materials, two recent cases suggest that even longstanding legal
principles are subject to fairly radical change in the evolving area of
property rights law. Government's ability to abate nuisances has long been
recognized as one safe harbor in which a taking could not occur. Yet, in
the City of St. Petersburg v. Bowen, 675 So.2d 626 (Fla. 2d DCA 1996),
rev. den. 680 So.2d 421 (Fla.1996), cert. den., 117 S.Ct. 1120 (March 3,
1997), an order of a Nuisance Abatement Board closing an apartment complex
for one year was found to constitute a taking. After noting that the remedy
chosen by the Nuisance Abatement Board was one of the most invasive methods
of abating the purported nuisance available, the Court then considered
the action of the Board in light of the decision rendered by the U.S. Supreme
Court in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
The Court found no common law nuisance doctrine prohibiting the use of
a building for rental purposes and as a result concluded that the particular
remedy chosen by the Nuisance Abatement Board constituted a temporary taking.
One could query whether the Nuisance Abatement Board would have been better
off to bulldoze the building since the decisions by the U.S. Supreme Court
in the prohibition and cedar rust cases would seem to suggest the destruction
of property constituting a nuisance is noncompensable.
Another decision likely to have an effect on takings litigation is Suitum
v. Tahoe Regional Planning Agency, 1997 W.L. 23768 (U.S. May 27, 1997),
where the Court addressed the ripeness requirement as it relates to the
exhaustion of administrative remedies. In this case, the Court found that
just because the property owner was entitled to a transfer of development
rights (TDRs), that property owner did not have to exhaust its administrative
remedies in pursuing those TDRs before it could claim that the loss of
use of its property constituted a taking.
In 1995, the Florida legislature added to the complexity of the property
rights issue by introducing the concept of "inordinate burden"
in the Bert J. Harris Private Property Rights Protection Act. While this
Act is perceived by some as an alternative and expeditious means of relief
for those property owners who are concerned that they either may be unable
to prevail in a takings claim or want to avoid the many years of litigation
almost guaranteed in a takings claim, filings pursuant to the Harris Act
have yet to demonstrate what effect it will have. At the June workshop,
there was a thorough discussion of the uses, pitfalls, and especially the
procedural requirements of this Act. This information, and much more, is
available in the audiotapes and written materials, which are available
from the Section by contacting Jackie Werndli, 904-561-5623.
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