Firm Partner Peter D. Waldman led negotiations with FDOT for the acquisition of surplus land located next to the project site, a process that started in August 2019 and culminated with the November 2020 project approval. The $1.99 million property transaction is expected to close by the end of 2020.

In assisting Mast, Waldman tapped into his proficiency representing private property owners and businesses in eminent domain, real property acquisition and valuation and the development, implementation and execution of capital improvement projects. He also has the unique perspective of having previously served as Assistant General Counsel for FDOT.

Firm Partner Edward Martos provided valuable assistance regarding the history of the project from a land-use perspective.

To facilitate the property transaction, Waldman had to persuade FDOT officials to designate the land as a surplus property, produce traffic and drainage studies and a market appraisal, resolve an environmental issue related to debris removal, and negotiate the purchase agreement.

“This was a team effort and a rewarding project to work on,” Waldman said. “FDOT followed its process to the letter of the law, and we did everything the Department asked for to show that this property was not being used, and was not needed for future FDOT projects. The result is a true win/win, with the city finally able to have this project move forward to accommodate strong demand for new luxury residential product in Mid-Beach and FDOT getting significant revenue through the property sale.”

The project had been held up in the planning and approval phase for more than six years before last month’s city approval. Mast is developing the 12-story building on 1.9 acres it previously purchased from Talmudic University in October 2014.

In addition to representing private property owners, Waldman is also often hired by governmental entities and utilities in eminent domain, property acquisition, project design and engineering matters, and has assisted municipalities with the development of right of way programs. He is a member of The Florida Bar’s Eminent Domain Committee and Greater Miami Chamber of Commerce’s Transportation and Infrastructure Committee.

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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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The First District Court of Appeal reversed the trial court, finding that Florida Statutes and Florida Rules of Civil Procedure governing homeowners associations allow the Lakeshore HOA to appear on behalf of and represent the homeowners in eminent domain litigation.  Specifically, the appellate court cited section 720.303, Florida Statutes, and Florida Rule of Civil Procedure 1.221, as permitting the Lakeshore HOA to “defend actions in eminent domain” without the need to name the 100+ owners of the common area.

Beware! The value of an individual owner’s home in an HOA could be substantially impacted by a government taking of common area (perhaps the taking eliminates the park or the pool that made the neighborhood more desirable to potential buyers?) and the homeowner may not even know that a takings lawsuit has been initiated.  Or, it is possible that because the vast majority of the homeowners may be subject to little impact, the HOA gives the government taking short shrift even though one or two homeowners are greatly impacted.  The Florida Constitution guarantees that every owner from which private property is taken is entitled to be fully compensated for its loss.  Article X, Sec. 6. Fla. Const. But without being informed of the proposed taking, a homeowner cannot appear and defend its right to compensation, and there is no guarantee that an HOA will adequately or capably protect all homeowners’ interests.  Moreover, even if a homeowner is alerted to the proposed loss of common area, such notice must be delivered within sufficient time for the homeowner to be able to make a difference.  Homeowners at risk of losing common area should not rely on their HOAs to protect their property rights.  Instead, they should remain on alert about potential impacts to their common area and, if uncertain about such impacts, consult with an eminent domain attorney to protect the value of their property.

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