Real Estate & Property Law

Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees

By Robert Thomas (inversecondemnation.com)

When the state purposely destroys healthy citrus trees as part of a program to address citrus canker, it must pay the owners of the trees just compensation.

In Dep't of Agriculture & Consumer Services v. Borgoff, No. 4D08-4474 (May 12, 2010), the Florida District Court of Appeal (Fourth District) affirmed an $11 million class action jury verdict ordering the Department of Agriculture to pay for the more than 100,000 non-commercial trees it cut down and destroyed in Broward County. The Department's eradication program destroyed any citrus tree within 1,900 feet of any tree found with citrus canker. The court concluded this was a taking: 

Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them.

Slip op. at 6 (footnote omitted) (emphasis added). The court first concluded that it would not disturb the jury's determination that healthy citrus trees "are not harmful or destructive, even though found within 1,900 feet of a tree having citrus canker." Slip op. at 3. The Department asserted that its scientific evidence was more convincing, but court held that it was the function of the jury to choose which side's evidence should be accepted. Because"[t]here is evidence in the record that the healthy trees taken under the [eradication program] had continued to produce the fruit, the juice, the shade, the pleasing aromas, the agreeable vistas ? all the virtues for which their owners carefully planted and tended them," slip op. at 3, the appeals court would not override the jury's conclusion.

The court also rejected the Department's argument that healthy trees exposed to citrus canker were valueless because they were a nuisance, and will eventually develop canker. "It is apparent from the history of this case that [the Department] destroyed these privately owned healthy trees not because they were really 'imminently dangerous' to anybody but instead to benefit the citrus industry in Florida." Slip op. at 4 (citation omitted). Nuisance is reserved for things that cause imminent "inconvenience or damage" to the public, and the court rejected the Department's claim that the healthy trees were a danger: 

If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how [the Department] can argue on appeal that the trees legally constituted a nuisance without any value.

Slip op. at 4. The court also rejected the Department's claim that multi-factored takings tests are applicable instead of a per se physical invasion rule. See slip op. at 5-6. Calling the multi-factored test "recondite," (the opinion does not cite Penn Central, but what else could it be referring to?), the court held: 

Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has
taken it, government must pay for it.

Slip op. at 6.

Lastly, the court bluntly rejected the Department's claim that the Florida legislature replaced the common law claim for inverse condemnation for destruction of citrus trees with a statutory claim. Slip op. at 6 ("Like most of the arguments of [the Department] in this dispute, it seems to have been made without regard to history, positive law or precedent.").

More about the decision from the Miami Herald: Court upholds $11M citrus canker payout, but Florida vows to appeal. It looks like we have not seen the last of this issue.

Full post as published by inversecondemnation on May 13, 2010 (boomark / email).