MIAMI-The property owners embroiled in a legal action over the public taking of private land in Monroe County, FL, hailed a judge’s ruling that recently characterized the county government action as a violation of the Fifth Amendment to the US Constitution. The property is 40 miles southwest of Downtown Miami.

It is the type of ruling that could weigh heavily in the judicial decision-making process in future public-taking cases, especially in Florida, Douglas M. Halsey, a law partner in the Miami offices of White & Case, tells

Halsey represents the Arthur Shadek and Joseph Harrison families in the inverse condemnation case against the Monroe County.

That ruling is about to fall under a higher precedent, however, with the US Supreme Court scheduled this fall to review a similar action emerging out of the Ninth Circuit Court of Appeals.

If it continues to follow a long-standing trend, Halsey tells, the high court could enforce higher thresholds on government entities that use temporary building moratoria to restrict development of private land.

“My own sense is, over the last three to five years, the courts have been a lot more willing to critically challenge heavy-handed land-use regulation by state and local government on constitutional grounds,” Halsey says.

“There isn’t that same degree of deference that was afforded (by the courts) in the years past as local governments went about adopting zoning ordinances and comprehensive land-use ordinances. As those land-use regulations test the outer limits of what is fair and reasonable, there is less tolerance by the judiciary on the public taking of property.”

Not every expert on public-taking issues agrees the judicial shift is that striking, however.”There is a tremendous amount of gray area,” Thomas Goldstein, assistant Miami-Dade County attorney, tells “This is an evolving area of law.”

It’s not just the anticipation over the pending Supreme Court case, Tahoe-Sierra Preservation Council Inc. vs. Tahoe Regional Planning Agency, Goldstein says. That case questions whether the Ninth Circuit acted properly when it ruled that compensation is not due under Fifth Amendment rights in the case of a temporary moratorium on land development.

Also a factor is the court’s reaction last June in the case of Palazzolo vs. Rhode Island, another inverse condemnation claim where the court split 5-4 over the appeal.

“I don’t perceive a shift in the law,” Goldstein says. “There is confusion, certainly. There is more confusion, since I’ve read Palazzolo. Palazzolo seems to say that when you deal with a regulatory taking, you are to consider (other factors) not just whether there was a lack of reasonable investment-backed expectation. What impact the Palazzolo case will have on law is uncertain.”

There doesn’t appear to be a groundswell of concern emerging out of Florida governments, especially about the relatively new inverse condemnation ruling out of Monroe County, Lee Killinger, general counsel for the Florida Association of Counties, tells

“I’ve just not seen that many issues raised by our membership about inverse condemnation claims,” Killinger says. “That’s not to say we won’t. There have been moratoria imposed by local governments that have been deemed as a public taking. But its not popping up in the state with any kind of frequency.”

It is a substantial issue for property owners, Halsey counters. That also appears to be the view of the Supreme Court in the 1987 ruling in the case of First English Evangelical Lutheran Church of Glendale vs. Los Angeles County, which declared that temporary public taking through moratoria is no different from permanent taking through eminent domain.

It’s also the point the court made in 1999 in case of the city of Monterey vs. Del Monte Dunes at Monterey Ltd., which asserted strong language against restrictive government ordinances on local land use.

“Other local governments in Florida that read the (Monroe County) decision will recognize that development moratoria, which are complete restrictions on all development, are suspect,” Halsey says.

“If they adopt those kinds of development moratoria and then extend them for any unreasonable length of time, (local governments) will face tremendous exposure.”

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