Planning for Climate Change and the Taking Clause

In February of this year, I blogged about an engaging law review comment entitled, Rising to the Challenge: Managed Retreat and the Taking Clause, which discussed a plan for governments to deal with the impacts of rising sea levels.  A recent Orlando Sentinel article, Miami Beach is Raising Road for Sea Rise, reported about how Miami Beach’s plan to raise road elevations to deal with rising sea levels has resulted in lawsuits being filed which contend that the changed road elevations flooded private property. Rising sea levels inevitably will wreak havoc on roads and homes.

Rising to the Challenge argued that governmental policies should facilitate the “managed retreat” of people away from vulnerable coastal areas.  Governments can facilitate this managed retreat, so goes the argument, by (1) implementing restrictions prohibiting the building or rebuilding of structures in low-lying areas or (2) using the power of eminent domain to take property for a public purpose. One way or another, governments will have to take action to ameliorate the adverse impacts of climate change induced rising sea levels.

Nearly 100 years ago, in Pennsylvania Coal Co. v. Mahon, Justice Holmes admonished government officials and bureaucrats that, while they can validly act to regulate the use of private property to a certain extent, when they go too far the Supreme Court can recognize their acts as a taking for which a government is responsible to pay an owner.

A court likely would view these Miami Beach lawsuits as alleging a direct governmental action which caused a physical taking of the owners’ property.  However, this Orlando Sentinel article reminds us that, even in the absence of direct government action, a government’s inaction or failure to carry out a governmental responsibility can cause a taking.

In Jordan v. St. Johns County, the Fifth District Court of Appeal confirmed that the County’s failure to maintain a public right of way could amount to a taking of property for which compensation is due. The County failed to maintain a portion of Old A1A which was subject to repeated damage from natural forces like storms and erosion. The County’s failure to maintain the road, which was the only means of reasonable access to the owners’ property, deprived them of their access rights to their property. The court held that they were entitled to proceed to trial on their claim that the County’s failure to maintain the roadway took their access rights.

As local governments struggle to manage rising sea levels, it is important to remember that, in so doing, they are responsible not only for the damages they cause to private property when they act, but also for damages caused by their failure to carry out a governmental duty.


Jay Small practices in the areas of eminent domain, condemnation, property rights, inverse condemnation, and land use law. If you have any questions about how government regulations can affect your property, contact him at (407) 425-9044, by email at [email protected], or follow him on LinkedIn

This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.

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