Southeastern Legal Foundation, together with Cato Institute, filed an amicus brief with the U.S. Supreme Court in Lozman v. City of Riviera Beach, urging the Court to take up the case of a property owner whose property value has diminished to nothing due to government overreach.
Fane Lozman bought waterfront property in Riviera Beach with the goal of building a home. After his purchase, the city rezoned it to a special preservation district, so now he can only build a dock or platform instead of a home. The city makes no exceptions to this ordinance, so Lozman has now spent 11 years owning this property without being able to develop anything on it. Lozman sued the city under the Takings Clause of the Constitution, claiming that the city left him with a worthless property that had no economically beneficial use. The Eleventh Circuit held that he could not bring his claim because he never applied to develop the property. In other words, he needed to receive a formal denial of his application to build a home on the property, even though he knew it was a losing battle.
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As SLF and Cato explain in their brief, there was “no question about how the regulation applies to Lozman’s property.” The law was clear on its face that there was no way Lozman could develop on his property, so he shouldn’t have to go through the application process and wait to be denied before filing a takings claim.
Now, there is a split among federal circuit courts about whether a property owner must go through the motions of applying for a variance before challenging a law, even when it’s obvious that the application will be denied. Amici write, “The Court now has an opportunity to provide clarity to the courts below[,]” and they urge the Supreme Court to take up this case to do so.