New Developments in Inverse Taking Law for Government-Incited Public Actions That Impair Private Property Value
Illustration by Barbara Kelley
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, 434-35 (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. §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 city appealed, and during the appeal, the parties settled the Fourth Amendment seizure claim.
The court of appeals affirmed the inverse taking judgment and compensation award, 890 F.3d at 950–51, citing evidence that the city had encouraged the public use, and concluding that:
…the Chmielewskis presented sufficient testimony and evidence to show that the continuous public trespassing and occupation of their property was the natural and intended effect of the [c]ity’s actions. Moreover, the agreed-upon jury instruction stated that the [c]ity is responsible for a public occupation taking if “actions attributable to the government result in a permanent physical occupation of the property by the government itself or by others….”
[T]he district court found the evidence could support a finding by a reasonable jury that the [c]ity “authorized or encouraged constant physical occupation of the Chmielewskis’ property by the public.” This finding alone is enough to hold the [c]ity liable for a physical taking. Nollan, 483 U.S. at 832, 107 S. Ct. 3141. The [c]ity’s actions, therefore, imposed a de facto public access easement on the Chmielewskis’ property.
Thus, it does not matter how the city caused the public occupation of private property, whether by formal regulation or exaction or by informal encouragement.[16]
Although there is no exact precedent for this case, Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), held a taking results when “individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.”[17] Nollan held that intermittent public trespass can be a taking, but in that case, the public use resulted from formal government action (exaction of an easement in exchange for development rights), not from informal actions that encouraged public use.[18]
Daws: Government Did Not Incite Trespass, So No Taking Results
Florida Fish and Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907 (Fla. 1st DCA 2018), rejected a taking claim on the pleadings, apparently because the plaintiff landowners could not properly allege the government’s actions caused public trespass as a matter of law. There the plaintiffs claimed that the Florida Fish and Wildlife Conservation Commission (FWC), which issues hunting licenses and enforces hunting laws, was responsible for the trespass of licensed hunters and hunting dogs on private lands. Upon the plaintiffs’ informal complaints, FWC took some actions to curtail licensed hunters from trespassing on private land, which the owners contended were insufficient to prevent substantial intrusion and losses. Specifically, FWC cut the length of the deer dog hunting season, restricted the geographic area in which deer dog hunting was authorized, and installed fencing to separate public from private property. It also adopted a rule authorizing officers to respond to private property owners’ calls when trespassing hunters or their dogs entered private property, and required hunters to equip their dogs with collars, allowing the hunters to control the dogs’ movements by shocking them remotely if the dogs trespassed onto private property.[19] However, the owners contended that these actions did not suffice to prevent continuing intrusion and filed suit against FWC.
The trial court conducted an evidentiary hearing and granted an injunction directing FWC to abate the hunters’ use of the private land. Implicit in this order was a finding that FWC was responsible for the trespass. The appellate court reversed on grounds that the taking claim and all other claims were legally insufficient, one judge dissenting on the merits (and three additional judges dissenting from an order denying rehearing en banc).
The majority held the hunters’ presence is transitory, not permanent, and only occurs in a specified period (44-day hunting season).[20] The majority also held that FWC could not physically control the hunters, and could not be compelled to do so.[21] This may be the best explanation for the ruling, and effectively means that the appellate court majority held FWC could not be the cause of the hunters’ and dogs’ trespass, or the property’s loss of value, as a matter of law. The majority held that the owners’ only remedy was to seek criminal charges or civil relief against the trespassing hunters.[22]
Dimare: Government Is Not Liable When Mistaken Food Safety Warning Incites Shunning
Causation issues can also arise when government action incites public shunning, resulting in loss of all economically beneficial or productive use of property, without a specific regulatory order. In Dimare Fresh, Inc. v. United States, 808 F.3d 1301 (Fed. Cir. 2015), cert. den., 136 S. Ct. 2461 (2016), tomato producers alleged that the Food and Drug Administration (FDA) public “imminent danger” warnings, based on mistaken suspicion that the tomatoes were contaminated with salmonella, rendered their tomatoes valueless.[23] The tomatoes’ only value was for prompt sale in bulk. The producers could not sell the tomatoes with FDA warnings in place. The FDA kept its research confidential, so the producers had no means to rebut the FDA warnings. If the producers had ignored the warnings, and tried to sell suspect products, no bulk purchasers would buy them. And if the tomatoes were actually contaminated, the producers would risk penalties, civil liability, and irreparable loss of goodwill. By the time the FDA determined the tomatoes were actually harmless and rescinded its warnings, the perishable tomatoes had lost all value.
The tomato producers cited A&D Auto Sales, Inc. v. United States, 748 F.3d 1142 (Fed. Cir. 2014), which allowed taking claims by automobile franchisees, where the government had conditioned its financial bailout of manufacturers on termination of these franchises. A&D held that even though the manufacturers were not legally obligated to accept federal bailout funds, but chose to do so to assure they would stay in business, these circumstances may be sufficiently “coercive” to support a taking case, and at least presented fact issues.[24]
The federal circuit upheld dismissal of the claim for failure to state a cause of action. The court distinguished A&D on grounds that the FDA warnings were “devoid of coercion, legal threat, regulatory restriction, or any binding obligation,” and did not formally prohibit the producers from selling their products.[25] The alleged practical reality, that the official warnings rendered the products unsaleable and deprived all value, were not deemed “coercive.” The court held that the FDA was not responsible for causing this market shunning, which it deemed to be independent of the FDA warnings as a matter of law, even if the FDA reasonably expected and intended that this result would occur.
The court also held that dissemination of health information is critical to the adequate functioning of efficient markets, and that protection of public health and safety gives government the greatest leeway.[26] The court apparently considered dissemination of erroneous warnings about wholesome products also serves these market purposes.
Discussion
Whether government incitement of public action causes loss of property value and an inverse taking should be fact driven. Chmielewski applied this rule and allowed the jury to decide the issue. Daws and Dimare held the owners could not prove causation as a matter of law.
Chmielewski and Dimare are particularly difficult to reconcile. A possible distinction is that in Chmielewski, the public physically occupied the private property, while in Dimare, the public shunned the private property. Thus in Chmielewski, the public obtained the use and benefit of the dry sand property by physically occupying it. In Dimare, the public did not get direct use or benefit from the suspect tomatoes, although it arguably benefits indirectly from FDA’s over-watchfulness. However, this distinction is not persuasive because it is the owner’s loss, not the value obtained by the condemnor or the public, that is the hallmark of taking compensation.[27]
Finally, in Dimare, the FDA was performing an essential function to inform the public on food safety, while in Chmielewski, the city performed a nonessential function, to promote its arts and crafts center and encourage public beach access. This “essentialness” feature was part of the Dimare court’s calculus, but it leads to difficult issues. Why should this make a difference if erroneous action causes destruction of the value of harmless private property? In Dep’t Ag. & Cons. Svcs. v. Mid-Florida Growers, 521 So. 2d 101 (Fla. 1988), and Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1991), food safety was also the government’s objective, but in those cases, the government actions (burning and quarantine) were deemed compensable takings.[28] Also, if “essentialness” is relevant to a taking, where is the line of “essentialness” to be drawn?
The Daws case, to the extent it relied on the transitory nature of the trespasses as a reason to reject the case, does not appear to be consistent with federal authority that government caused transient or temporary trespass can be actionable as a taking.[29] The better explanation was that FWC had taken reasonable steps to prevent trespass by the hunters and was not responsible for the trespass.
None of these distinctions seem to fully explain the different outcomes of these cases. The ultimate unifying principle for deciding causation where government incites public action in inverse-taking cases remains elusive. Between the poles of Chmielewski, on one hand, and Daws and Dimare on the other, lies much ground for creative arguments.
[1] Armstrong v. U.S., 364 U.S. 40, 49 (1960), cited in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978).
[2] State Road Dep’t v. Tharpe, 1 So. 2d 868 (Fla. 1941).
[3] Penn Central’s ad hoc analysis considers three factors: the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the governmental action. These factors are nonexclusive. Id. at 123-24. The decision did not define all of these factors or prescribe any specific weighting.
[4] The physical occupation rule avoids difficult line drawing “without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner,” because “the power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” Loretto, 458 U.S. at 434-36.
[5] Filing an inverse condemnation suit concedes the validity of the administrative action. Key Haven Assoc. Enters., Inc. v. Bd. of Trustees of the Int. Imp. Trust Fund, 427 So. 2d 153 (Fla. 1982). See also Dep’t of Ag. & Cons. Services v. Polk, 568 So. 2d 35, 38 (Fla. 1990).
[6] State Rd. Dep’t v. Lewis, 190 So. 2d 598, 600 (Fla. 1st DCA 1966).
[7] See Monterey v. Del Monte Dunes, Ltd., 526 U.S. 687, 709 (1999) (plurality opinion, inverse taking case sounds in tort); Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003) (“[i]nverse condemnation law is tied to, and parallels, tort law” (quoting 9 Nichols on Eminent Domain §34.03[1] (3d. ed. 1980 & Supp. 2002)). See also City of Hansen v. United States, 65 Fed. Cl. 76, 80–81 (Fed. Cl. 2005) (“all takings by physical invasion have their origin in tort law”).
[8] Gibson v. Avis Rent-A-Car Sys., Inc., 386 So. 2d 520, 522 (Fla. 1980).
[9] See Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355-56 (Fed. Cir. 2003) (Property loss is compensable as a taking when the invasion is the “direct, natural, or probable result of an authorized activity.”); Vaizburd v. United States, 384 F.3d 1278, 1282-83 (Fed. Cir. 2004) (property owner must prove invasion was the “predictable result of the government action,” either as the “direct or necessary result” of the action or “within contemplation of or reasonably to be anticipated by the government”).
[10] Cary v. United States, 552 F. 3d 1373, 1377 (Fed. Cir. 2009). See also, generally, U.S. v. Aguilar, 515 U.S. 593, 613 (1995) (factfinder can presume persons intend the natural and probable consequences of their acts).
[11] Because of the unique character and value of dry sand areas inland of the mean high-water mark, and changes to the character of the land wrought by natural forces, these areas can be a battleground for use rights and taking claims in the courts. See, e.g., City of Daytona Beach v. Tona-Rama, 294 So. 2d 73 (Fla. 1974) (recognizing a prescriptive right to dry sand areas based on customary use); Alford v. Walton Cty., 2017 WL 8785115 (N.D. Fla. 2017) (challenges to validity of customary use ordinance); Goodwin v. Walton Cty. Fla., 248 F. Supp. 3d 1257 (N.D. Fla. 2017) (denying preliminary injunction, leaving open right to seek just compensation as remedy for interim use). These issues are also fought in political arenas. See Ch. 2018-94 §10, Laws of Fla. and Governor’s Executive Order 18-202 (concerning process to assert customary public use). Such battles are not confined to Florida. See and compare Nollan, 483 U.S. 825; Surfrider Foundation v. Martins Beach 1 LLC, 221 Cal. Rptr. 3d 382 (Cal. 1st DCA 2017), cert. den., 139 S. Ct. 54 (2018); Purdie v. Attorney General, 732 A.2d 442, 447 (N.H. 1999); City of Long Branch v. Jui Yung Liu, 4 A.3d 542, 548 (N.J. 2010); Nies v. Town of Emerald Isle, 780 S.E.2d 187, 197 (N.C. Ct. App. 2015), cert. den. 138 S. Ct. 75 (2017); Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012).
[12] Because the Chmielewskis had clear title, the city did not claim a prescriptive easement or customary use right.
[13] Presley, 464 F.3d 480 held a city can be liable for seizing private land by actions that encourage public use and threats of prosecution if the owner attempts to obstruct public use; such action may violate both the Fourth and Fifth Amendments. Id. at 487. See also Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009). Damages for an unreasonable seizure under 42 U.S.C. §1983 are potentially greater than for a taking, as the court can use analogous common law tort damages, e.g., trespass, to measure damages for unlawful seizure. See generally Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986).
[14] Emphasis added. The court normally decides all taking liability issues, and if liability is found, the parties can submit the amount of compensation to a jury. Dep’t Ag. & Cons. Svcs. v. Mid-Florida Growers, 521 So. 2d 101, 104 (Fla. 1988). In Chmielewski the parties agreed to submit all issues to the jury.
[15] See Chmielewski v. City of St. Pete Beach, No. 8:13-CV-3170-T-27MAP, 2016 WL 761032 (M.D. Fla. 2016) (order summarizing the evidence and denying city’s post-trial motions for judgment as a matter of law and for new trial).
[16] A jury could find that a city that invites people to come to the vicinity of the beach for recreational pursuits and assists beach access can expect them to wander onto the beach. By analogy, persons in charge of roving animals are liable for damage foreseeably caused by such animals. See Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1287 (Fla. 1st DCA 2004) (jury issue as to whether hunt club’s operation using uncontrolled dogs close to a public road was proximate cause of injury to decedent struck by vehicle on the road while trying to catch loose dogs); Loftin v. McCrainie, 47 So. 2d 298, 302 (Fla. 1950) (keeper of cattle is on notice of their propensities, so allowing cattle to escape their pen into a populated area set in motion the cause of the injury, even if motorists honking their horns was intervening immediate cause).
[17] Nollan, 483 U.S. at 832.
[18] Presley, 464 F.3d 480 (property owner stated a cause of action for physical taking and unreasonable seizure). However, no final judgment on remand appears to be reported in Presley.
[19] Daws, 256 So. 3d at 910. The trial court and dissenting appellate judge agreed with the owners that the government was at least arguably responsible to do more.
[20] Id. at 910, 915.
[21] Id. at 918. See generally Crystal Dunes Owners’ Ass’n, Inc. v. City of Destin, 2011 WL 13186150 at *3 (N.D. Fla. 2011) (plaintiffs have no right to enforcement of criminal trespass laws, citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005)).
[22] Id. at 915. The dissent argued that these remedies are of questionable practical feasibility, because the owners could not easily catch and detain the hunters or their dogs; waiting for law enforcement to arrive was not practical; and threats of retaliation were shown. Id. at 919-20.
[23] If the FDA had ordered a quarantine, that would be tantamount to a physical taking and compensable. See Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1991) (quarantine of undiseased turkey flock was a taking). The tomato producers alleged by issuing public warnings instead, the FDA intended and was able to indirectly accomplish the same result as a quarantine. The FDA has authority under 21 U.S.C. §375(b) and 21 C.F.R. §2.5(a) to issue information (warnings) regarding food “in situations involving, in the opinion of the [s]ecretary, imminent danger to health.” FDA warnings normally immediately stop product sales. See Cortez, Adverse Publicity by Administrative Agencies in the Internet Era, 2011 B.Y.U. L Rev. 1371, 1402 (2011) (describing publicity as a “regulatory weapon”). Id. at 1408 (FDA recognizes that a press release can be more effective than formal enforcement in some cases); Morey, Publicity as a Regulatory Tool, 30 Food Drug Cosm. L. J. 469, 470-71 (1975) (describing adverse publicity as a legitimate and useful regulatory measure that may destroy the product market and cause intermediate purchasers to reject products in anticipation of expected consumer reaction). But the Dimare court did not consider a warning to be sufficiently “coercive” to warrant relief.
[24] A&D, 748 F.3d at 1154-56.
[25] Dimare, 808 F.3d at 1311.
[26] Id. at 1310-11.
[27] See Jacksonville Expressway Auth. v. Henry G. Du Pree Co., 108 So. 2d 289, 291 (Fla. 1958). In Dep’t Ag. & Cons. Svcs v. Mid-Florida Growers, 521 So. 2d 101 (Fla. 1988), the owners lost all value of the citrus nursery plants, while the state and public realized no value by destroying the nursery plants. A taking still resulted.
[28] Other differences do not explain the different results in these cases. Although Chmielewski was decided under state and not federal law, that is not a distinction. Florida takings law generally follows federal takings law. See Chmielewski, 890 F.3d at 949 n. 3 (citing Storer Cable T.V., Inc. v. Summerwinds Apts. Assocs., Ltd., 493 So. 2d 417, 419-20 (Fla. 1986)); and St. Johns River Water Management Dist. v. Koontz, 77 So. 3d 1220, 1226 (Fla. 2011), rev’d on other grounds, 570 U.S. 595 (2013)).
Nor does it matter that Chmielewski involved real property and Dimare involved personal property. Horne v. Dep’t of Agriculture, 135 S. Ct. 2419, 2429 (2015), held that taking of personal property is compensable if a regulation deprives the owner of control of the property (or imposes a financial penalty for failure to relinquish control). Other cases uphold claims for taking personal property, e.g., Yancey and A&D. There is no basis in the text of the constitution’s Taking Clause to distinguish real and personal property, and research into the origins of the Taking Clause suggest that personal property was intended to be protected. See Bell, “Property” in the Constitution: The View From the Third Amendment, 20 Wm. & Mary Bill Rts. J. 1243 (2012). Nor does it matter that in Chmielewski, the government encouraged public use of private property, while in Dimare, the government discouraged the public from buying or consuming products. In both cases, the normal anticipated and intended result is that the public will do what the government says. At least this appears to involve fact issues.
[29] Compare Nollan, 483 U.S. 825 with First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) (recognizing a cause of action for temporary deprivation of all economic use); Arkansas Game and Fish Commission v. United States, 568 U.S. 23, 38-39 (2012) (same, recognizing that factors include the time of the invasion, the degree to which invasion is intended or foreseeable, the character of the land at issue, and the owner’s investment backed expectations).
David K. Miller is a partner at Nelson Mullins Broad and Cassel in Tallahassee. He received a J.D. from Florida State University College of Law in 1975 and has practiced governmental litigation for the state and in private practice for 43 years. He helped to represent the property owners in the Chmielewski and Dimare cases.
