Property Owners Win Right to Compensation in COVID Ordinance Case

In another major victory for private property rights, the 11th Circuit recently ruled that owners of beachfront properties in Walton County, Florida are entitled to just compensation after an ordinance effectively banned them from accessing their own properties. The ordinance, which was enacted during the COVID pandemic to prevent the spread of the virus, was found to be a “total taking” which required payment under the Takings Clause of the U.S. Constitution.

Background

Appeal to 11th Circuit

After the district court ruled in favor of Walton County, the property owners appealed to the 11th Circuit. On appeal, the legal issue was whether the blanket prohibition on accessing private beachfront properties during COVID‑19 constituted a per se physical taking under the Fifth Amendment, mandating just compensation.

The 11th Circuit found that the ordinance physically deprived owners of their private property rights. Rather than merely restricting how property may be used, the ordinance completely restricted access. Accordingly, the court found that a per se physical taking under the Taking’s Clause occurred. This means that the property owners must be paid just compensation for the temporary taking.

Although the ruling is a victory for the property owners, they aren’t out of the woods just yet. Walton County has petitioned the court to reconsider the decision. Florida county wants court to reconsider decision in COVID-19 beach fight – NBC 6 South Florida.

Takings Clause vs Police Power

While many have praised the 11th Circuit for standing up for private property rights, some are more critical of the court’s reluctance to address a significant dilemma: the intersection of the Police Power with the Takings Clause. Ilya Somin, Professor of Law at George Mason University, found a missed opportunity for the court to address this issue. The police power is a notable exception to the requirement that governments must pay just compensation when taking private property. Since the Appellate Division did not address this, it continues to be an ambiguous area. Covid Beach Closures, the Takings Clause, and the Police Power Exception. 

COVID Restrictions on Property Rights

We have addressed other matters in which property owners challenged COVID regulations. In August 2021, the Supreme Court issued a per curiam decision striking down the CDC’s eviction moratorium. The Court determined that the CDC exceeded its statutory authority under the Public Health Service Act and emphasized the fundamental property-owner right to exclude. U.S. Supreme Court’s Emphatic “Take That!” To CDC Eviction Moratorium | MROD.

Like Florida, New Jersey also enacted legislation imposing property restrictions during the COVID pandemic. One example is Executive Order 107 (EO 107) which mandated residents to stay home and cancel all social gatherings. A Bergen County event venue owner challenged it by arguing that a regulatory taking took place. However, the Appellate Division held that the regulation was a valid use of the police power and that no compensation was owed. N.J. Appellate Court Rejects Another COVID “Shutdown” Order Challenge | MROD.

Conclusion

Courts continue to struggle with the aftermath of the COVID pandemic. Without clear guidance of the police power exception to the Takings Clause, we will likely have inconsistent rulings on whether compensation is owed.

To read the full Alford v. Walton County opinion, click here.