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Takings in Eminent Domain: Testing The Waters Does Not Create a Property Right

In its recent decision in the matter of St. Johns River Water Management District v. Koontz, SC09-73, the Florida Supreme Court held that under the U.S. and Florida Constitutions there is not a taking when a state agency merely denies a development permit. Only when the regulatory agency issues a permit, giving the owner an interest in the permit and making the condition effective, can there be an exaction. Essentially, the Court held that until there is some property right that is actually being taken away, there is not a taking. While this may seem like common sense, this case went up to the Florida Fifth District Court of Appeal three times on this issue before the Supreme Court finally resolved it.

Coy A. Koontz sought a permit to develop 3.7 acres out of a 14.2 acre tract that was 90% riparian habitat protection zone. Only .3 acres were outside of protected wetlands. He was given two alternatives by the Water Management District. Either he could dedicate part of his property to conservation and perform offsite mitigation to develop the 3.7 acres, or he could reduce his development size to 1 acre and convert all of the remaining land into a deed-restricted conservation area. The Court found it problematic for Koontz that no permit was ever issued to him, no funds were expended for mitigation, and nothing was ever taken from him. In other words, he did not have some sort of vested property right that was taken away. A property owner who is merely testing the waters in regard to what they might be able to develop does not have some sort of property right as a result of the review process. Florida caselaw has never recognized a vested right or property interest in the mere filing of applications.

Koontz is somewhat analogous to the Supreme Court of Florida’s decision in State of Florida Department of Transportation v. Capital Plaza, 397 So.2d 682 (Fla. 1981). Capital Plaza dealt with a situation where, in improving a road, the Department of Transportation created a median eliminating left turns into a gas station property. The Court in Capital Plaza held that the landowner did not have a property right in continuation or maintenance of traffic flow past his property. Impairment of traffic flow is not recoverable.

In both cases, the Court preserved the ability of government to regulate property without that regulation becoming a deprivation of a compensable property right.

Categories: Land Use & Zoning (Public)LitigationGovernment AffairsEminent Domain
Tags: Governmental LitigationFlorida Supreme CourtMitchell J. BurnsteinJamie A. ColeEdward G. GuedesMichael S. PopokJoseph H. SerotaSusan L. TrevarthenPeter D. WaldmanFort Lauderdale Governmental Affairs AttorneysMiami Governmental Affairs AttorneysSouth Florida Governmental Affairs AttorneysSouth Florida Public Transactions LawFort Lauderdale Public Transactions LawMiami Public Transactions Law Matthew H. MandelFort Lauderdale Eminent Domain AttorneysMiami Eminent Domain AttorneysSourth Florida Eminent Domain Attorneys
Author(s): Peter D. Waldman