Concurrency and moratoria.

• Author: Layman, David M.
• Position: Regulatory takings - Florida

"The general rule at least is, that while property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking."(1)

Although this "general rule" is easily stated, its application to particular facts is extraordinarily complicated, especially when regulations completely prohibit the use of property for a limited period of time.

The 1985 Florida Legislature created the requirement that infrastructure be available to accommodate new development. This requirement is called "concurrency."(2) Florida's local governments adopted ordinances implementing concurrency in the late 1980s and early 1990s, just as Florida entered a terrible real estate recession. Little development occurred during the recession. Therefore, the ordinances have not been rigorously challenged.

There has not yet been a Florida appellate case analyzing whether an unconstitutional regulatory taking occurs when a local government temporarily prohibits the development of land because of lack of concurrency. Such a prohibition would be similar to a building permit moratorium. The analysis is complicated by unclear language in the 1987 U.S. Supreme Court case of First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987), which holds that certain temporary prohibitions on the development of property can be unconstitutional takings.

This article will discuss the leading cases on this subject, and suggest a method of analyzing when a court might determine whether a taking has occurred. It also examines a recent Florida temporary takings case that arose in another context, which may help predict how Florida courts would treat a temporary development prohibition due to lack of concurrency.

Golden v. Planning Board of Town of Ramapo

Golden v. Planning Board of Town of Ramapo, 285 N.E. 2d 291 (N.Y. 1972), is a classic example of how long a local government could delay development prior to First English. In Ramapo, a local ordinance prohibited subdivision approval until the developer obtained a special permit confirming that the essential services of sewage service, drainage facilities, parks-recreation-public school facilities, roads, and fire houses were available.(3) These essential services are very similar to the services the Florida Local Government Comprehensive Planning and Land Development Regulation Act requires to be available concurrent with development.(4)

The town's planning board denied an application by a developer for approval of a subdivision plan, because the required special permit had not been obtained. The developer sued, requesting that the court determine that the ordinance was a taking. The court noted that the restraint on the use of property was temporary, and that other uses, including the construction of individual houses, were authorized. Furthermore, the Ramapo ordinance allowed a developer to advance the date of subdivision approval by agreeing to provide the improvements. This type of "checkbook self-help" is allowed under the growth management act.(5)

In retrospect, the Ramapo definition of "temporary" is strained. Development could have been delayed up to 18 years (which the court described as a "generation"). The court addressed the takings issue raised by the possible delay of development by a generation. It noted that an ordinance that seeks to permanently prohibit the use of property for any reasonable purpose is a taking. The court contrasted the situation where the restriction is temporary and the property may be put to a profitable use within a reasonable time. The court held that the 18-year limitation was reasonable, given the town's commitment during that period of time to construct the necessary improvements. Furthermore, landowners could accelerate the date of development by making improvements themselves. Finally, certain limited interim uses were allowed.

Of course, this analysis does not recognize that the cost of the required infrastructure improvements could far exceed the profit that could be made on a proposed development. The required improvements are likely necessary due to the cumulative impact of all existing development on the existing infrastructure, not merely a single proposed development. Judge Breitel, in a thoughtful dissent in Ramapo, described his belief that development could only be postponed for a short period of time (much less than 18 years). He also noted that some jurisdictions purchase development rights or a time-limited easement restricting development, providing adequate compensation to the landowner for development delays.

First English

The Supreme Court addressed temporary takings claim in the 1987 First English case. The Court's holding was vague. It is unclear exactly when the majority would find that a taking occurred. In 1957, a church purchased land on which it operated a campground and retreat for handicapped children called "Lutherglen."(6) The church's land was located in a canyon along the banks of Mill Creek, which functioned as a natural drainage channel. In July 1977, a fire occurred that burned approximately 3,860 acres of the watershed area for Mill Creek. This presaged a disaster. Vegetation within a watershed normally protects against flooding because it slows...