During the pandemic, the Firm has remained “substantially the same as pre-pandemic, but certainly hot areas and hot issues are bubbling up,” said Mitch.

He comments on one of the attributes of a firm of our size, which is the “pivot.” “We encourage cross-training of our lawyers. We will shift around our lawyers, and we constantly are encouraging them to look outside their comfortable wheelhouse for opportunities.”

The Firm has also grown during the pandemic. “Our thinking is that if these candidates were attracted to us at the end of 2019 or before the pandemic really hit in March, as long as the firm was financially sound, we would keep on that same track of bringing these people on board,” Mitch said.

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In “The True Impact of Reed v. Town of Gilbert on Sign Regulation,” Susan and Adam discuss the 2015 outcome of the Supreme Court decision in Reed and its effects on the ability of local governments to exercise considerable authority in enacting reasonable sign regulations without violating the First Amendment. Click here to view the full article.

About Stetson Law Review
Stetson Law Review is published four times a year and is available at Index to Legal Periodicals, Current Law Index, Shepherd’s Florida Citator, Westlaw, and LexisNexis. Click here to learn more about Stetson Law Review.

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It’s easy to write off the question by responding “Of course the government can interfere with private property rights when confronted with an emergency. It is within the government’s police power to take these measures.”  But remember, it has been long recognized that regulation of property that “goes too far” will result in a taking – thus our regulatory takings jurisprudence. The “police power” justification, by itself, is not conclusive.

The more thoughtful response is that the current situation is unprecedented.  When else has a global pandemic required a mass, multi-national quarantine and societal shutdowns?  Moreover, the shutdowns are not direct physical destruction of or encroachment upon property, such as when government demolishes an unsafe structure.  Instead, the shutdowns are regulatory. Thus, their impact on property rights is more abstract.

Because the current circumstances are unprecedented and novel, and because governments must react quickly with limited information on the actual impacts of the pandemic on public health, two legal concepts can be used by government to defend its actions against takings claims:  necessity and nuisance.

“Necessity” has been long used to validate government action that destroys private property, without having to pay for the destroyed property, when an emergency requires such action to prevent imminent public danger.  This makes sense.  Most of us don’t want the government worrying about liability that it might incur in taking actions that are absolutely necessary to avoid public disaster. A useful example of necessity prevailing over the right of compensation is when government preemptively burns private property to create a firebreak in order to combat a wildfire.  Generally speaking, the owners of said properties are not entitled to compensation under the necessity exception.

“Nuisance” recognizes that property owners are rarely entitled to compensation for an impact to their property rights caused by government action when that action is taken to prevent or abate a public nuisance.  This is so because property owners do not have a right to use their property in a manner that is harmful to others.  Nuisance prevention or abatement by the government cannot, therefore, “take” a property right because it never existed.  The government may, for example, prohibit use of property that would result in pollution of groundwater without paying any compensation to the owner for that restriction.

When applied to the current COVID-19 pandemic, it’s easy to see how the question of whether government-imposed shutdowns will result in a compensable taking is likely to turn in favor of the government.  The government shutdowns, which may have interfered with private property rights, are designed to prevent further spread of a pandemic (an imminent public harm), so they likely will be deemed necessary.  Similarly, a virus that is spreading exponentially likely constitutes a nuisance, and the government enjoys wide latitude to restrict uses of property to prevent or abate a public nuisance.

That being said, do not take the existence of these defenses to mean that government may always act without consequence under every circumstance that is labeled an emergency.  A basic tenant of our democracy is that we don’t (and shouldn’t) blindly trust our government.  The question of whether a compensable taking has occurred will and should turn on the evidence showing the necessity of the government restrictions or the nuisance the restrictions were meant to ameliorate.

The post Taking Your Temperature: Property Rights During the COVID-19 Pandemic appeared first on Weiss Serota Helfman Cole + Bierman.

First, a government can only take your property if it will be used for a public purpose. This means roads, parks, utilities, and other truly public purposes. Although Florida used to, in limited situations, permit takings where government planned on giving the property to a private developer (usually the justification was that it was promoting “community redevelopment”), Florida no longer permits takings for that purpose. In fact, the circumstances under which any private party can control newly created public property that was acquired through eminent domain are extremely limited. Given that the property must be used for a public purpose, those who are eminent domain squeamish can rest easy knowing that governments must first demonstrate a noble and real public purpose before acting. Those who are anxious about eminent domain should start to warm up to it (if they like the roads they drive on and the parks their children play in).

Second, the government must prove that it needs the specific property it is trying to take in order to accomplish the public purpose. It cannot choose property on a whim. The government must prove that it looked at alternatives, and the designated property was a reasonable one for a number of reasons.

Third, and often most important, the government must pay full compensation to the owner of the property. “Full compensation” includes most (if not all) of the damages that are caused by the taking. It also includes the property owner’s attorneys’ fees, the cost of getting experts to testify on one’s behalf, and moving costs, among other things.

So the next time you meet an eminent domain attorney (at least in Florida), please look her in the eye, shake her hand, and say, “Your area of specialization is tolerable; thanks for being on my side.”

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