May 13, 2010

Government's noxious nuisance defense defeated after citrus trees destroyed

By Government's noxious nuisance defense defeated after citrus trees destroyed

Author: Jim Burling

A Florida Court of Appeals held on Wednesday, in Department of Agriculture & Consumer Services v. Toby Borgoff, that the deliberate destruction of over 100,000 healthy citrus trees constituted a compensable taking. The trees had been destroyed because other nearby trees were infected with citrus canker – a disease that discolors and spots otherwise healthy citrus fruit. In so holding, the court rejected the Florida Department of Agriculture’s nuisance defense and upheld an award of over $11.5 million dollars before setoffs.

The Florida Department of Agriculture had argued that the destruction of the healthy trees was necessary to save commercial orange groves – and that the mere existence of the healthy trees constituted a nuisance. The Court was not impressed, nor should it have been. These were perfectly healthy trees that “continued to produce the fruit, the juice, the shade, the pleasing aromas, [and] the agreeable vistas.” These were not analogous to the already infected cedar trees in Miller v. Schoene. Instead the Court simply recognized the limitations upon government-conjured nuisances based on ipse dixit reasoning that the Supreme Court castigated in Lucas v. South Carolina Coastal Council. Pacific Legal Foundation’s amicus brief made this very point.

What is most refreshing is the Court’s recognition that inherently valuable property that does not harm the public generally cannot be a nuisance:

To be a public nuisance, property must cause “inconvenience or damage to the public generally.” If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how DACS [the Department of Agriculture and Consumer Services] can argue on appeal that the trees legally constituted a nuisance without any value. Property with any value cannot be deemed a nuisance, the nature of which perforce lacks that redeeming quality.

The Court continued to note that the destruction of these trees was a classic physical invasion style taking – meaning that it was a per se taking and that there was no need to engage in the sort of “balancing” required by Penn Central Transportation Company v. City of New York – the sort of balancing that is shorthand for “landowner loses.” Instead, the Court concluded with a ringing endorsement of the all too uncommon notion that government must pay for what it takes:

The facts of this case require no application of multi-part, recondite tests to decide whether the State regulation has gone too far and must pay just compensation. Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them. Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it.

We do, however, recognize the imperative for Florida’s citrus industry to eradicate the citrus canker. Our concern in this case is that no matter how worthy a public goal may be, individual property owners should be treated fairly in the process. A court that is too ready to too broadly define a nuisance, runs the risk of setting precedent that is unfavorable to all property owners — farmers and homeowners alike. Following the constitution may sometimes be difficult, but it is the best long-term approach.

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