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September-October 2019

New Developments in Inverse Taking Law for Government-Incited Public Actions That Impair Private Property Value

By David K. Miller

Florida Bar Journal

Inverse taking law is a continuing work in progress as courts struggle to apply the purpose of the Taking Clause, “to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,”[1] to novel facts. Three recent decisions arising from Florida provide guidance in situations where government action causes public action that adversely affects the value of private property. In such cases, fact issues relating to causation would seem to be paramount. In one case, the federal appellate court upheld the jury’s and district judge’s findings that the government caused the taking. But in two other cases, the courts rejected taking claims based on the pleadings alone, as a matter of law.