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A.A. Profiles, Inc. v. Fort Lauderdale, City of

ELR Citation: 31 ELR 20654
Nos. No. 99-14762, 253 F.3d 576/(11th Cir., 06/05/2001)

The court reverses a district court decision holding that although a Florida city's rezoning of property to prohibit the operation of a wood-chipping business constituted an unconstitutional taking, damages should not be awarded to the business. The city approved the business' operation on a proposed property subject to certain conditions. After receiving city approval, the business purchased the property and began to bring it into conformance with the city's conditions. Before the conditions were met, the business sought and received city permission to begin operation. Area residents objected to the business' operation because they thought the property was used as a dump. Succumbing to public pressure, the city zoning commission suspended the business' operation and later rezoned the property so as to prohibit wood chipping. After the business lost the property to foreclosure, it filed suit alleging a taking. On appeal, the court held that the city's actions effected a taking and remanded for further proceedings. The business settled with individual defendants, but the district court held a new trial as to the city's liability. The district court concluded that the issue of liability was foreclosed by the Eleventh Circuit's previous opinion, but after using a temporary takings formula to determine damages, the district court held that the business had failed to establish compensable loss.

The court first holds that the previous Eleventh Circuit decision that a taking had occurred was law of the case, and the necessary implication of that holding was that the business had suffered harm and that the district court was obligated to determine the extent of the harm caused by the taking and compensate the business accordingly. Therefore, the district court erred in concluding that the business was not entitled to damages. The court next holds that the district court erred in applying a temporary takings damages formula because such a formula would not provide just compensation in this case. A temporary takings formula is appropriate only when the property owner's losses are limited to the temporary use of its property and the concomitant income. Here, the business' losses were permanent and the diminution in market value test should have been used to measure compensation. Because the appraisals of the property submitted by the business are not part of the appellate record, the diminution in value cannot be determined, and the issue is remanded to the district court.

Counsel for Plaintiff
Philip M. Cullen III
Law Offices of Philip M. Cullen III
621 S. Federal Hwy., Ste. 4, Ft. Lauderdale FL 33301
(954) 462-0600

Counsel for Defendant
Robert H. Schwartz
Adorno & Zeder
888 SE Third Ave., Ste. 500, Ft. Lauderdale FL 33335
(954) 523-5885

Cox, J. Before Wilson and Kravitch, JJ.