Inverse taking law is a continuing work in progress as courts struggle to apply the purpose of the Taking Clause, "to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," (1) to novel facts. Three recent decisions arising from Florida provide guidance in situations where government action causes public action that adversely affects the value of private property. In such cases, fact issues relating to causation would seem to be paramount. In one case, the federal appellate court upheld the jury's and district judge's findings that the government caused the taking. But in two other cases, the courts rejected taking claims based on the pleadings alone, as a matter of law.
Background
Inverse taking is an equitable remedy applying the state and federal constitutional Taking Clauses to compensate owners whose property value is destroyed without formal condemnation action. However, to prevail, the property owner must show the government caused the taking. (2) The government may argue that it does not cause or control actions by members of the public.
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), and its progeny reject any set formula for deciding when a taking occurs and instead prescribe an ad hoc multi-factor analysis that is difficult to predict. (3) However, one seemingly fixed rule is that a per se inverse taking results if the government either physically occupies private property, or by regulation or exaction, authorizes a private party to physically occupy another's private property. This rule reflects the owner's right to exclude users from the property. The U.S. Supreme Court carved out this exception beginning in Penn Central, 438 U.S. at 124; and thereafter in Kaiser Aetna v. U.S., 444 U.S. 164 (1979); and Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 43435 (1982) (government regulation authorized physical occupation); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831-32 (1987) (private occupation arising from regulatory exaction). (4)
Conversely, if the government simply sets in motion public actions to occupy or devalue private property, without imposing a formal regulation or exaction, the result is less clear-cut. In such cases, the private owner may have little practical choice as to a remedy. Seeking injunctive relief to stop public occupation may not be practically obtainable or enforceable against multitudes of casual and transient trespassers, who may resist or evade efforts to enforce the owner's rights. The owner's only practical recourse may be to bring an inverse taking case to compel the government to pay for the invaded property. (5) If liability for an inverse taking is established, the owner's compensation is the same as if the government had formally condemned the same property right for public use by eminent domain. (6)
The causal relation between government action and damage to property is usually a fact issue, for which the common law of torts provides guidance. (7) Florida tort law recognizes proximate cause if cause in fact and foreseeability are shown, based on a natural, direct, and continuous sequence between the wrongful act and the injury. Moreover, Florida law generally holds a party responsible when its conduct sets in motion a chain of events that foreseeably results in injury. (8)
Federal takings cases likewise recognize causation if the injury is the direct, natural, and probable result of the government action. (9) Thus, government action can affect a compensable taking if the government should have predicted or foreseen the resulting property loss as the natural consequence of its actions. (10)
Recent cases, however, have reached divergent results. Specifically, in Chmielewski v. City of St. Pete Beach, 890 F.3d 942 (11th Cir. 2018), the court affirmed a compensation verdict and judgment for a property owner for inverse taking of real property under Florida law, holding the city encouraged public invasion, and this causation was a fact issue for the jury. Conversely, in Florida Fish and Wildlife Conservation Comm'n v. Daws, 256 So. 3d 907 (Fla. 1st DCA 2018), rev. den., No. 18-1565 (Fla. 2018), the First District Court of Appeal held that a government agency was not the cause of public trespass on private land based on the pleadings alone. Moreover, in Dimare Fresh, Inc. v. United States, 808 F.3d 1301 (Fed. Cir. 2015), cert. den., 136 S. Ct. 2461 (2016), where owners of perishable tomatoes claimed that erroneous government health warnings caused the market to shun the tomatoes and caused loss of all value, the courts dismissed of the taking claim on a motion to dismiss.
These cases presented novel causation issues as to government's responsibility for the loss of the owners' property by inducing public action, and mark at least tentative boundaries for causation in the evolving law of takings.
Chmielewski: Government-Incited Trespass Is a Taking
The Chmielewski family owned residential property in the Don Cesar subdivision in St. Pete Beach. The subdivision plat provided a vacant strip area paralleling the beachfront, known as Block M, which was reserved for common use of subdivision residents only, and prohibited structures in Block M.
In addition to their residence, the Chmielewski family acquired title to a 50-foot wide strip of beach property in Block M contiguous to (west of) their residence, extending 300 feet to the Gulf of Mexico mean high-water line (the beach parcel). This acquisition remained subject to subdivision residents' common use rights. For many years, the family's residential and beach parcels were quiet, with only occasional neighbors traversing to the beach.
The city acquired the subdivision developer's former residence, located near the Chmielewski residence, and a wooded lot bordering Block M. The city restored the developer's residence as a beachfront community center and established a public park and recreation site (used for arts and crafts, special events, parking, and beach access), and granted rights to operate this community center to a private concessionaire. The city converted the wooded lot to an open public parking lot.
The city encouraged and facilitated public use of the beach parcel as an adjunct or enhancement to the public use of this property. (11) Specifically, the city removed fencing barriers to beach access from around the parking lot, installed metered parking on the nearby street, and created a path across Block M for beach access. It erected signs at both ends of Block M, visible from the street, saying "Beach Access," with the city's logo (showing a beach picture) and cleared overgrowth from a sidewalk running parallel to the shoreline on the beach parcel. Finally, the city adopted zoning and website maps showing the beach parcel as public recreation space.
After these actions, public use of Block M and the family's beach parcel substantially increased. The family tried unsuccessfully to stop the public from using their beach parcel, but the city removed their makeshift barriers and even threatened to arrest them on one occasion if they interfered with public use, leaving the family practically powerless to stop the public traverse.
The family filed an action against the city to quiet title to their beach parcel, and the city agreed to a final judgment in the family's favor. However, this did not stop the city's and the public's ongoing use of their beach parcel.
In 2009, the family filed a state court action against the city for inverse taking of their beach property by inviting, encouraging, facilitating and participating in continual public trespass that eliminated the right to exclude the public. The city claimed a public use right under the plat terms, by virtue of its ownership of the former developer's residence lot. (12) It also denied responsibility for the public use, blaming simple public wanderlust.
The family amended their complaint to add a claim for damages for unreasonable seizure of their property in violation of the Fourth Amendment to the U.S. Constitution, pursuant to 42 U.S.C. [section]1983. (13) The city then removed the case to the U.S. District Court for the Middle District of Florida.
The district court conducted a jury trial on liability and damages issues for both the taking and seizure counts. (14) The agreed jury instruction on the taking count provided:
A taking can also occur when government, through its actions, exercises or causes to be exercised domain over private real property so as to deprive the owner of its use or enjoyment. In such cases, a de facto taking is said to have occurred....
[A] physical taking may be found when government action, or actions attributable to the government, result in a permanent physical occupation of the property by the government itself or by others....
The agreed jury instruction on the seizure count (delivered first) defined "attributable" to require proof of the city's active encouragement, facilitation, or participation:
Private actions generally do not implicate the [Fourth] Amendment. Where, however, actions by the public occur with the participation or knowledge of the [c]ity, those actions may be attributable to the [c]ity. The [c]ity must have done more than adopt a passive attitude toward individual actions before those actions may be attributable to the [c]ity. The [p]laintiffs must prove that the [c]ity actively encouraged, facilitated, or otherwise participated in the public actions before those actions are attributable to the [c]ity ... (quoting Presley v. City of Charlottesville, 464 F.3d 480, 488 (4th Cir. 2006)).
The jury returned a verdict in the family's favor on both claims, finding the city seized the beach and "undertook a de facto taking of the Chmielewskis' beach parcel."
The district court upheld the jury's verdict and entered a final judgment for compensation for both counts. (15) The...
