Q: Does restricted use of private property fall under the Fifth Amendment protection?
The Rookery Bay Aquatic Preserve acted in 1978 to restrict certain homes on Marco Island from having a dock more than 160 square feet. These homes are a very small percentage of the total number of homes on Marco and almost every home on Marco has a dock and a boat. The restriction placed on these few homes makes them far less marketable/valuable than the other homes. The DEP is unwilling to give permits to even modify existing docks to allow better boat access even if it does not increase the existing footprint of the dock, further devaluating our homes. Do we have any recourse? Would it be too expensive to pursue? Are there any other options?
A: It looks to be more an equal protection issue than a 5th Amendment "Taking Clause" issue (and the comparable provisions of the Florida Constitution). Depending upon how much the regulation affects land values, it might be cost-effective to pursue.
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