July 7, 2015

Government should pay for the full value of what it takes

By Christina M. Martin Attorney

Landowners face an uphill battle when they file a lawsuit, claiming that the government took their property. But even after getting a court to rule in their favor, landowners often face the additional challenge of convincing the court to award the full value of what the government took.

For example, in Andress Family Florida, L.P. v. Charlotte County, the landowners built a sewer system servicing residential lots platted for future development in Florida. The county failed to maintain it, leaving the properties without sewer or water service. Making matters worse, the county refused to issue the plaintiffs permits for a new septic system, rendering the property useless for over five years, until the landowners were finally allowed to pay for a brand new sewer system. The landowners sued and the trial court agreed that the county effected a temporary taking for those five years, and thus owed the landowners compensation. But the trial court refused to consider the actual damages caused by the county’s actions, awarding a paltry sum that will not even compensate the landowners for the municipal service fees that they will pay in the next 15 years to fix the county’s mistake.

Instead of looking at all of the facts, and weighing the many different compensation formulas available, the court held that in cases of temporary regulatory takings, it was strictly bound by a single formula articulated by one federal appellate court. The federal court never suggested that the formula could apply to all temporary regulatory takings. Likewise, Florida courts have never taken such a restrictive approach.

Yesterday, the attorneys at Pacific Legal Foundation filed an amicus brief, arguing that courts should consider multiple compensation formulas, because no one formula can accommodate the “nearly infinite” factors that can cause a temporary taking. Strict adherence to any one formula fails the constitutional requirement that government pay full and just compensation when it takes property. Instead, courts must look at the actual facts of a case to ensure that the landowner is compensated for the whole loss.

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