Friday, July 25, 2003

Temporary takings - damages case

City of Tampa v Redner - bar owner denied a special permit (wet zoning) to sell liquor attacked the decision on both substantive and takings grounds and won the takings case, including damages based on lost lease income.

Second DCA reversed the takings damages, citing Wheeler for the proposition that the right measure was to take the difference in land value with and without zoning and basically give the landowner interest on that amount for the duration of the taking. Also, no attorney fees or other costs.

Bad reasoning. First, as the dissent lays out, the Wheeler case involved raw land that was zoned for apartments, but no apartments built. The court reasoned that it was speculative to try to determine not only whether willing lessors would present, but the amount of the leases. Moreover, the court reasoned that the appraised value of the land would take into account the true value of the income stream and that the "interest rate" would fairly represent the profit to be taken from it. Here, you had a building already developed and lease contracts on the table that simply required the removal of the illegal burden.

More importantly, and not discussed by the majority or the dissent, Wheeler was a US case tried under the 5th amendment. In Florida, our constitution not only give protection against temporary takings, it also provides for full compensation when a taking occurs. So the measure should have included the attorney and appraiser's fees, etc.

Beyond the damages fight, the case demonstrates that if an improper ordinance or regulation destroys all use, you can both attack the regulation as invalid AND get temporary takings damages for the time it was applied.


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