## Facts

- Thomas C. Burnham and Nedra Burnham, as trustees (the Burnhams), owned land in Monroe County, Florida, since 1967.
- In July 1992—after Monroe County adopted its Rate of Growth Ordinance (ROGO)—the Burnhams applied for a building permit to develop their property.
- ROGO limited building permits through a competitive, point-based process: applicants earned points for specified design and site features, and permits were issued to those with the highest point totals.
- The Burnhams’ submitted plans did not earn enough points to receive a ROGO allocation and, therefore, did not receive a building permit.
- Monroe County repeatedly informed the Burnhams that they could qualify for sufficient points, and obtain a permit, by making simple and minor changes to their plans.
- The Burnhams did not modify their plans. Instead, they sued Monroe County alleging inverse condemnation and arguing that ROGO was unconstitutional as applied to their property.
- The trial court entered final judgment for Monroe County, finding no taking because the Burnhams were not deprived of all beneficial use of their property, and also finding ROGO constitutional.
- The Burnhams appealed to Florida’s Third District Court of Appeal.

## Issues

1. Whether Monroe County’s ROGO, as applied to the Burnhams, effected a compensable regulatory taking supporting an inverse-condemnation claim.
2. Whether ROGO was constitutional under federal and Florida takings law.

## Decision

- The Third District Court of Appeal affirmed the final judgment for Monroe County.
- The court held no taking occurred because the Burnhams did not show ROGO denied all economically beneficial or productive use of the land; they could obtain the needed permit by making a few minor plan changes.
- The court agreed with the trial court that ROGO was constitutional.

## Legal Principles

- A regulatory taking claim based on inverse condemnation generally requires proof that the challenged regulation denies the owner all economically beneficial or productive use of the land. (Lucas v. South Carolina Coastal Council)
- When a land-use regulation permits development upon compliance, and the owner can obtain approval through reasonable modifications to proposed plans, the owner ordinarily cannot show the total deprivation required for a categorical taking.
- The property owner bears the burden in an inverse-condemnation action to establish the degree of deprivation required under takings doctrine.
- Florida takings analysis in this context follows the high threshold reflected in Lucas and related Florida decisions, including Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp. and Jacobi v. City of Miami Beach.

## Conclusion

In Burnham v. Monroe County, the Third District affirmed judgment for the County, holding that ROGO’s point-based building-permit system did not effect a compensable taking as applied because the Burnhams could have obtained a permit by making a few minor changes to their plans and therefore could not prove the ordinance denied all economically beneficial or productive use of their property; the court also affirmed that ROGO was constitutional.


Burnham v. Monroe County, 738 So.2d 471 (1999)