Dan Newlin
The Law Offices of Dan Newlin on the “Takings Clause”
The “Takings Clause”, contained in The Fifth Amendment of the Constitution, prohibits “private property [from being] taken for public use without just compensation. The sovereign governments of the United States (both federal and state governments) have the power, through eminent domain, to take a person’s private property as they wish as long as they pay for it. Legal scholars have described the law surrounding the Constitution’s Takings Clause as “a hopeless mess,” “famously incoherent” and “a muddle.”
According to the Dan Newlin Law Offices, if the government uses the property or allows the public to use it, there is a per se taking. However, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.
If the government deprives the property owner of the actual “right of possession,” then a taking has occurred and compensation must be made. The Court states that just compensation is required when the government authorized “permanent physical occupation” of private property. Loretto vs. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For example, in Loretto, the Court found there had been a “permanent physical occupation” of private property when a municipal ordinance allowed a cable TV company to install cable in privately owned rental buildings.
The Law Offices of Dan Newlin believe that if it’s your property, shouldn’t you be able to exclude others from entering it? What if the state forbids you from excluding a person you want to exclude? Has the state “taken” anything from you?
In Nollan vs. California Coastal Commission, 483 U.S. 825 (1987), Nollan wanted to expand his beachfront house and applied for a permit. The California Coastal Commission replied with a conditional approval: Nollan could expand but only if he grants an easement to the general public to use the beach in front of his house. The Supreme Court found that such a “condition” on a building permit constituted a taking for which Nollan must be compensated.
With so many inconsistencies in the application of the Takings Clause, it is no surprise the U.S. Supreme Court “muddied the waters” again with its ruling in Stop the Beach Renourishment, Inc. vs. Florida Department of Environmental Protection by affirming the decision of the Florida Supreme Court who rejected landowners’ taking claim. At controversy was the publicly funded restoration of a beach on top of state-owned waters in the Gulf of Mexico with the goal of protecting lives and property against hurricanes.
The owners of the gulf–front property were unsuccessful in their effort to convince the Court that Florida law required the State to grant the property owners either exclusive access to the new beach or compensation for separating their property from direct contact with the water. The Court’s decision was based upon a determination of whether a judicial decision declaring that “a well established “ property right “no longer exists” also may constitute a taking, which the Court answered in the negative. Such a ruling is not remarkable for it holding as much as it is for its reasoning.
Historically, the Takings Clause has been applied to the legislative and executive branches of government. The Clause has been a vehicle for state courts to establish their individual body of common law to address the changing economic, social and environmental conditions within their own jurisdictions. The U.S. Supreme Court’s ruling provided little clarity as to what a “well established” right is inferring that a state court’s established precedent may not be controlling.
While the ruling in Stop the Beach may have provided clarity to an already confusing area of property law on thing seems certain, the decision will undoubtedly have a pronounced effect of more that $100 million of planned shore protection projects on the drawing board for the Texas Gulf Coast and many other states.
If you believe that your fifth amendment rights been violated, contact the law offices of Dan Newlin toll-free at 1-800-257-1822. Newlin’s office is located in Orlando, Florida.