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Under the law of eminent domain, there are limits on the government’s power to take private property for public use or public benefit. What constitutes a “taking” is far broader than the word implies, and fully condemning a parcel of land is not necessary to implicate property owners’ Constitutional rights.

Many “takings” cases arise out of government restrictions on the use of private property. Zoning regulations permit requirements, and other regulatory burdens have all been at the center of numerous eminent domain cases involving disputes between property owners and authorities at the local, state and federal levels. As a recent example, one Florida real estate developer is currently seeking to have the Florida Department of Environmental Protection’s permit denial overturned by the U.S. Supreme Court.

Developer: Permit Denial Violates U.S. Constitution’s “Takings” Clause

The case involves developer Beach Group Investments, LLC’s attempt to build luxury beachfront townhomes on Florida’s Atlantic coast. Beach Group Investments, LLC (“BGI”) purchased the oceanfront property and obtained the necessary local permits to begin construction. However, before BGI could break ground, the Florida Department of Environmental Protection amended its setback requirements; and, based on its new requirements, it rejected BGI’s request for a permit to begin construction.

At trial, the court ruled that the Florida Department of Environmental Protection’s new permit restrictions resulted in a 96 percent loss in value for BGI’s beachfront property. It also ruled that any attempt to obtain a variance from the Florida Department of Environmental Protection would have been futile. As a result, it determined that the revised setback requirements constituted an unlawful taking and that BGI was entitled to just compensation.

The Florida Department of Environmental Protection appealed, and the U.S. Fourth Circuit Court of Appeals reversed. After the Florida Supreme Court denied BGI’s request for review, the developer filed its case with the U.S. Supreme Court. In its writ of certiorari, BGI challenged the Court of Appeals’ holding that it was required to apply for a variance before seeking judicial review of the Florida Department of Environmental Protection’s permit denial, asserting that:

• The Florida Department of Environmental Protection lacked the discretion to grant the variance request proposed by the Court of Appeals;
• The trial court was correct in finding that any attempt to obtain a variance would have been futile, “based on the history of the parties and the stated views of the [Florida Department of Environmental Protection];” and,
• Any alternative development options were “economically impracticable.”

The case is an interesting one and one that could potentially have important implications for real estate developers that run into difficulties when seeking to obtain regulatory approvals in Florida. Our attorneys will be monitoring the case for further developments.

Ansbacher Law | Eminent Domain Attorneys in Jacksonville, FL

Our eminent domain attorneys provide experienced legal representation for property owners and developers in the greater Jacksonville area. If you are facing a zoning or land use issue and would like to discuss your options with an attorney, we invite you to call (904) 737-4600 or contact us online for an initial consultation.

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