Property Rights Trampled by COVID-19
The United States District Court for the Northern District of Florida just denied a temporary injunction to a group of beachfront property owner’s suing to enjoin a governmental Order that temporarily and totally denied their use and enjoyment of private property. The Order denied access to the owners private beach. If you have 5 minutes, read the opinion.
The case is getting lots of media and blogger attention because one of the homeowners is former Arkansas Governor Mike Huckabee. Here are a few of the recent reports:
Inverse Condemnation Blog, authored by our OCA colleague, Robert Thomas
In short, as a private property owner, you know you’re going to lose when the opinion starts with:
“The entire country—and, in fact, much of the world—is currently in the midst
of a pandemic relating to the Covid-19 virus. The federal government and individual
states have taken various methods to try and combat this crisis, including, inter alia,
statewide lockdowns and forced social distancing.”
This government order has unquestionably taken private property for public use without just compensation. But, the District Court judge was reviewing an application for equitable relief, and therefore was tasked with a balancing test between a total denial of use of private property and the public health benefit of said restriction, under the government’s police powers. Clearly, the scales of justice tipped in favor of the governmental actor’s temporary restriction of beach access, and the Court refused to lift the restriction.
It’s hard to reconcile this decision with cases like Loretto v. Teleprompter of Manhattan, 458 U.S. 19 (1982) that held that any physical taking – no matter how small – was compensable. Or, Kimball Laundry v. United States, 338 U.S. 1 (1949),which held that a temporary total taking of a commercial laundry to assist in the war effort was a fifth amendment taking and that lost business profits were to be included in the compensation calculation.
Would the tides have turned if the property owners were in court seeking to invalidate a civil or criminal penalty for violating the lock-down ordinance? Or, had they filed a traditional inverse condemnation action? It may have been a closer case for compensation for the takings….
https://arktimes.com/arkansas-blog/2020/04/13/judge-denies-preliminary-injunction-in-huckabees-beach-access-lawsuit
