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New Port Largo, Inc. v. Monroe County

ELR Citation: 27 ELR 20170
Nos. 95-4142, 95 F.3d 1084/(11th Cir., 09/25/1996)

The court holds that a county's rezoning of a landowner's beachfront property from residential to private airport use and leasing of the property to an airport tenant was not an unconstitutional taking or a violation of the landowner's substantive due process rights. The court first holds that the county's act of rezoning the property was not, in itself, a deprivation of the right to exclude, because the property could have remained dormant consistent with the airport zoning. Nor did the rezoning effectively take the property for public use, because the landowner remained free to transact some business, for profit, with the public at large. The court holds unripe the landowner's claim that it is entitled to compensation for physical occupation of the land, which the county rented to an airport tenant during a title dispute with the landowner that the county ultimately lost. The property has not been physically occupied in the traditional sense. Moreover, assuming that the takings clause would mandate compensation for rents unlawfully received by a governmental entity for land not belonging to it, the landowner has not tried and failed to get compensation. With no indication that Florida property law or tort law deny recourse to one whose property is unlawfully leased to a third party, the court cannot consider whether the Fifth Amendment would allow compensation for that act. The court next affirms the district court determination that the rezoning did not leave the landowner with no economically viable use of its property. The district court was not collaterally estopped by a state court finding that the rezoning deprived the landowner of reasonable use of the property, because that finding was not necessary and material to the state court decision. The court next holds that the county was not equitably estopped from rezoning the property. The landowner failed to allege any affirmative act by the county sufficient to grant a property interest in the original zoning. Further, because there is no general constitutional right to be free from all changes in land use laws, the landowner must do more than rely on the original zoning to establish an equitable estoppel. The court next holds that the rezoning was not so clearly arbitrary and unreasonable as to violate the landowner's substantive due process rights. Although the landowner asserts that the airport zoning was irrational because of safety concerns, it fails to press the assertion that no safe runway could ever be constructed on the property. The court next holds that the landowner was not entitled to a jury trial, because no material, subsidiary fact was in issue for the substantive due process claim, and no jury fact-finding is required in regulatory takings cases.

Counsel for Plaintiff
Jeffrey B. Crockett
Aragon, Burlington & Weil
Office in the Grove-Penthouse
2699 S. Bayshore Dr., Miami FL 33133
(305) 858-2900

Counsel for Defendants
Alan G. Greer
Floyd, Pearson, Richman, Greer, Weil, Brumbaugh & Russomanno
Miami Center
201 S. Biscayne Blvd., 10th Fl., Miami FL 33131
(305) 373-4000

Before EDMONDSON, Circuit Judge, and FAY and GIBSON*, Senior Circuit Judges.*