by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS: A county that rezoned beach-front property from residential use to private airport use did not deprive the landowner of its right to exclude the public from its property and did not deprive the landowner of all economically viable uses of the property. New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (11th Cir. 1995).

The property was zoned for residential duplexes, but consisted of a "breakwater" reclaimed from the bay for the purpose of shielding other residential property from heavy weather and used and for the purpose of airport use. The landowner paid a high price for the property as development property. But after the landowner acquired the property, there was a heated dispute between the county and the landowner concerning ownership, and during this dispute, which resulted in a litigation result favorable to the landowner, the county had leased the property to an operator for private airport use. It was during that period of time, also, that the county rezoned the property from residential to airport.

The landowner argued that the county's rezoning of private property to private airport use in effect meant that the property could be used only for public purposes. The Eleventh Circuit Court of Appeals found that the rezoning was not a deprivation of the landowner's "right to exclude" others from the property because (i) the rezoning did not require the landowner to admit the public, (ii) the landowner remained free to transact for-profit business with the public at large, and (iii) the landowner was not required to open its property to the public for use as the public wished.

The Court also determined that the rezoning did not deprive the landowner of all economically beneficial or productive uses of its property. It pointed out that, in addition to airport use, which apparently was practical, the county landowner use the property for boat slips, dry storage of boats, or as a beach club.

Finally, the Court found that the county was not equitably estopped from the rezoning because the county had not deprived the landowner of any property interest, such as by granting a permit or passing a resolution. The landowner's reliance on zoning maps which indicated that the property was suitable for residential development did not deprive the landowner of any property interest.

Comment: The case is somewhat reminiscent of the well-known McCarthy v. City of Manhattan Beach, 264 P.2d 932 (Cal. 1953), where the California Supreme Court upheld the rezoning of residential ocean front property for public beach use only. The court held that the landowner could rely on the city to prevent the public from knocking down fences separating its private beach property from the public beach property surrounding it, and therefore the landowner could enjoy some value from the zoned use (despite the fact that it was adjacent to miles of free public beach). The editor (along two dissenters in McCarthy) has always felt that McCarthy was wrongly decided, and is suspicious of the result in the instant case as well.

The line certainly is difficult to draw. But when the zoning is so limiting as to require the landowner to place property to a use that confers a unique benefit on the public at large, at significant economic loss to the landowner, it would appear that the landowner has been forced to undertake a special personal burden for the benefit of the public - the quintessential test for takings. Recent Supreme Court authority in the Lucas decision, of course, indicated that there may be no compensable taking when there is some viable economic useage left, regardless of other characteristics of the public action. The Lucas Court apparently was trying to avoid the quagmire of closely analyzing the motivations of the public authorities making these zoning decisions. This probably was a proper instinct. But some decisions just don't pass the "smell test."

This particular case, where the property apparently was originally intended as an airport, may not be too "smelly." Nevertheless, there is a certain ripeness in the air that's distinct from the odor of seaweed and airplane fuel.

For another recent Eleventh Circuit ruling on a similar topic, see Corn v. City of Lauderdale Lakes, 95 F.3d 1066 (11th Cir. 1996) (no taking where city redefined commercial zoning classification to eliminate warehouses that were part of developer's development plan. Developer still had substantial "economically viable" use. Developer's $100,000 initial investment in preparation of property and presentation of several proposed development plans created no "vested right," as investment was consistent with permitted commercial development.)

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