No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. "Zugzwang," for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.
That's what many property owners' lawyers feel like when that regulatory takings case walks though their doors and they are asked "do we file now or later, and in which court?" You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File in federal court and you're up against Williamson County and ripeness and the argument that the taking "without just compensation" has not yet even occurred because you haven't been denied compensation by a state court. File in state court, and when you get to federal court on your federal claims, you will be deemed to have unwillingly litigated them. Zugzwang.
That might have been the situation our Owners' Counsel of America colleague Andrew Brigham was facing when he represented the property owners in a case under Florida's "Bert J. Harris, Jr., Private Property Rights Protection Act," a statute allowing owners to be compensated if a regulation "inordinantly burdens" an existing use of property. While not a "takings" claim, its subject to much of the same analysis. Fortunately, in Wendler v. City of St. Augustine, No. 5D12-2563 (Mar. 15, 2013), the Florida District Court of Appeal (5th District) agreed with Andrew's approach, holding that the Harris Act claim was timely filed.
In 2007, the city denied Wendlers' request for demolition permits to take down seven buildings on their land, so they could construct a small hotel. The city asserted removal of the existing buildings would be detrimental to the city's historic character. The Wendlers filed a Harris Act claim, but the trial court dismissed and concluded they should have initiated the process within one year of the 2005 amendment to the demolition permit ordinance because the impact of the 2005 amendment was "readilty ascertainable" to affected property owners.
A Harris Act claim "must be presented within one year from the time the law or regulation is first applied by the governmental entity to the subject property." Slip op. at 5 (emphasis original). The court held that the Wendlers would not have known of the impact of the amended demolition ordinance:
The Ordinance, as amended, put property owners on notice of the procedure they must follow when applying for a permit for demolition or relocation of any of the three building types newly designated in the amendment and sets forth the general standards for the demolition or relocation of historic structures. However, these provisions constituted only general restrictions that applied to the Wendlers’ structures, just as they potentially applied to other structures in the historic district.
Slip op. at 7. This makes sense because, as the government always argues, the very existence of a permitting system implies that an application may be granted. Apparently, the city wanted the Wendlers to see the future, or just assume that their permit application would be denied, even thoughout of the 162 applications for demolition made in a 10-year period, the city denied only seven indefinitely -- the seven applications by the Wendlers. And you just know, don't you, that had the Wendlers instituted a claim upon adoption of the amended ordinance, instead of a claim that they filed too late, they would have been dealing with the argument that their claim was not ripe, because the ordinance was only a "general restriction," and they might be granted a permit.
Zugzwang thwarted.
Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)
