Tuesday, February 17, 2004

Access rights are property rights

Another recent 2d DCA case - Johnson Services vs. Pinellas County, reinforces that access rights from property to roadways are appurtenant rights and are protected by the due process clause.

Pinellas County curbed off two of four access points into the Plaintiff's service station, without notice or opportunity to be heard or to contest the action. When Johnson's Services sued under s. 1983 in state court, claiming that the County violated due process guarantees, the County defended by claiming that the plaintiffs had no "property" in the accesses and therefore no due process rights.

The County argued that because there had not been a substantial diminution in value to the land as a whole - a 5th amendment takings analysis - there had been no deprivation of "property" and therefore no due process violation. [note- I understand from Dave Smolker that FDOT has been making the same argument for years in its access management program implementation.] This argument was rejected by the 2d DCA as fundamentally flawed. Access rights are appurtenant property rights under Florida law and therefore are property interests protected by the due process clause.

One can hope that this case points to the day when the courts stop the pretense that there are no 14th amendment due process-protected property interests in "unvested" building permits, site plans and other development orders or environmental permits. The extension of McKinney v Pate (and the post-Roth cases) that deal with statutorily created employment and welfare rights to the property realm, where the ability to use property consistent with law has been held to be a valid property interest since common-law days, is one of those bad ideas that create complacent regulators and lawyers - not a good thing whether you're a developer or a citizen activist (or anyone in between).

The case - Johnson Services v Pinellas - is attached below. BTW - this is another case that my friend Dave Smolker argued.

Johnson Services v. Pinellas County

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