Synchronicity. Serendipity. Yin and Yang. Sometimes things just seem to work out.
Exhibit A: No sooner do we post a case about when inverse condemnation cases are filed too late (see Federal Circuit On The Metaphysics Of Takings Claim Accrual), what comes across our desk? A case about when inverse condemnation cases are filed too soon, of course. In Pembroke Center, LLC v. Fla. Dep't of Transportation, No. 4D10-1737 (June 29, 2011), the District Court of Appeal (4th District) held that a declaratory judgment action initiated by a property owner was ripe, and that more was needed to determine whether an inverse condemnation action was ready for review.
The DOT has plans to widen the road next to the plaintiff's shopping center, but the widening "was put on hold due to economic circumstances, but its website indicted the project will resume once funding is available." Slip op. at 2. The owner sought a declaration that the DOT's actions burdened the owner's easement, and that the DOT should be required to condemn. The trial court dismissed both claims.
The court of appeal reversed. First, the court held that the declaratory judgment claim on the scope of the easement and whether the DOT's actions burdened it was ripe because "[t]he DOT admitted as much," and the complaint pled "the ripening seeds of controversy." Id. at 3.
On the inverse condemnation claim, the court was a bit more equivocal:
A claim of inverse condemnation is ripe "where a government agency, by its conduct or activities, has effectively taken private property without a formal exercise of the power of eminent domain . . . ." Rubano v. Dep’t of Transp., 656 So. 2d 1264, 1266 (Fla. 1995). A taking occurs when a property owner suffers a physical appropriation of his property or when a regulation "denies all economically beneficial or productive use of land." Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). A taking also exists when governmental action "causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself." Palm Beach County v. Tessler, 538 So. 2d 846, 849 (Fla. 1989).
Slip op. at 3. The court held that "the property owner merely alleges a loss of access 'will' occur sometime in the future," which is not the same as alleging that government conduct has effectively taken property. The court also concluded that the owner did not allege a loss of access. "Mere planning activities" do not rise to the level of a taking. Finally, the court held that the DOT's actions were planning activities, not "regulatory development restrictions" because the project was on hold for lack of funding. Id. at 4.
But instead of affirming the dismissal of the claim, the court noted that at oral argument it was informed that "there may now be funds available to start the project," and thus on remand, the trial court may "reconsider whether the inverse condemnation claim is now ripe, and if so, to reinstate that claim as well."
