Walton County is asking a federal appeals court to reconsider a decision that would lead to compensation for beachfront property owners who were prevented from using privately owned parts of the beach early in the COVID-19 pandemic.
The county last week filed a request seeking a hearing before the full 11th U.S. Circuit Court of Appeals after a panel of the Atlanta-based court sided with property owners who argued a county ordinance that closed access to beaches in April 2020 resulted in an unconstitutional “taking” of property.
The three-judge panel on Nov. 17 directed a district judge to “consider the amount of ‘just compensation’ that the landowners are entitled to” under what is known as the Takings Clause of the U.S. Constitution. The case involves people being unable to use areas of the beach that they own, rather than on beaches being closed to the general public.
In a 14-page petition for a rehearing last week, the county argued that the panel’s opinion conflicted with previous legal decisions, including a 2021 U.S. Supreme Court decision, and that the ordinance did not lead to a taking of property.
RELATED: The Grim Reaper Has A Message For Beachgoers: Stay Home
Also, it disputed part of the panel opinion related to county officials enforcing the ordinance on the properties.
“Under these circumstances, the takings analysis should be individualized for each landowner’s property and would be dependent upon the nature, frequency, and duration of any incursions by government officials on each property, and not evaluated as a blanket taking of all of the landowners’ beach front properties for the entirety of the 28 days the ordinance was in effect,” the petition said.
Several property owners filed the lawsuit after the Walton County Commission in early April 2020 approved the ordinance to temporarily close all beaches — public and private — to try to prevent the spread of COVID-19, which slammed into the state a month earlier. The ordinance expired at the end of April 2020, and beaches were reopened.
Under Florida law, privately owned beach property generally extends to a point known as the mean high-water line. Attorneys for the plaintiffs in the lawsuit also cited property owners’ “littoral” rights, which provide access to the water.
The panel’s November opinion in favor of the property owners overturned a 2021 ruling by U.S. District Judge Robert Hinkle, who rejected the taking arguments.
“Despite the county’s significant infringement on property rights, the district court granted summary judgment in favor of Walton County, noting that the ordinance was enacted during the COVID-19 pandemic,” said the panel opinion, written by Judge Barbara Lagoa and joined by Judges Andrew Brasher and Ed Carnes. “But there is no COVID exception to the Takings Clause. Instead, the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing.”
The 27-page opinion said the ordinance “physically appropriated the landowners’ property because it barred their physical access to the land.” The panel also rejected the notion that the ordinance was a restriction on the “use” of property.
“At bottom, (the ordinance) prohibited the landowners from physically accessing their beachfront property under any circumstances,” the opinion said. “That is different from a restriction on how the landowners could use property they otherwise physically possessed.”
But in his ruling, Hinkle wrote that landowners were still able to use much of their property and that the county commission was using its “police power in a public-health emergency.”
“The bottom line is this. The Board of County Commissioners faced an escalating pandemic that posed an enormous threat to public health,” Hinkle wrote. “There was no way to know at that time how many people would die or become gravely ill and how best to minimize the number. Decisive action seemed appropriate. In closing the beaches, the county exhibited no animus toward these plaintiffs or anyone else. Instead, the commissioners exercised their best judgment, based on the limited knowledge available at the time, on how to preserve life and health.”