Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin August 25, 2018 I Volume 12 I Issue 16 provides: "No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner . . .." The court explained that this clause prohibits the government from tak- ing private property for a public use without paying for it. Moreover, the court explained that a plaintiff (such as the Chmielewskis here) "need not demonstrate direct government appropriation of private prop- erty to prove a taking." Notably, citing United States Supreme Court precedent, the court said that "[a] taking also occurs when the govern- ment gives third parties 'a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed." "[Elven a temporary or intermittent invasion of private property can trigger physical takings liability," said the court. Here, the court found that the City encouraged public use of the beach parcel by placing beach access signs, clearing vegetation, creat- ing nearby parking spaces, hosting events at the property, and refusing to remove trespassers. The court found that those City actions "resulted in frequent public use of the beach parcel." The City had argued that a taking could not be found here because the City had "never asserted ownership or exclusive control over [the Chmielewskis' beach parcel]." But the court asserted that "ownership and exclusive control are not necessary elements for a takings claim." Rather, noted the court, a physical taking can occur "when government `deliberately brings it about that . . . the public at large regularly use or permanently occupy space or a thing which theretofore was under- stood to be under private ownership.' " Here, the court found that there was sufficient evidence to establish that the continuous public trespassing and occupation of the Chmielewskis' property was "the natural and intended effect of the City's actions." In other words, the court found that the City's actions imposed a de facto public access easement on the Chmielewskis' property. Addressing the City's alternative request for fee simple ownership of the beach parcel upon payment of the judgment, the court held such relief was not warranted under Florida law and that the district court did not abuse its discretion in denying the City's request to transfer title. The court explained that, under Florida law, "the taking of an easement may, in some cases, amount to the taking of the full value of the fee with resultant severance damages, but `naked fee title' still remains in the property owner." Moreover, the court noted that Florida law restricts the City from acquiring a greater interest in condemned property than necessary to serve the public purpose for which it is acquired. Because existing plat restrictions prevented the land in ques- tion from being developed, the court found that the City needed noth- ing more than a public easement across the land to accomplish its goal © 2018 Thomson Reuters 5