On Oct. 7, 2022, Florida’s Second District Court of Appeal issued an opinion that focuses on the threshold question in all regulatory takings cases: does the plaintiff own property protected by the takings clauses of the Florida and U.S. Constitutions? The answer is usually clear in cases concerning tangible property—houses, cars, artwork, land, etc. It is usually undisputed that, if government appropriates or destroys those things, the takings clause will require compensation. However, there isn’t always a clear-cut answer in cases that concern nontraditional, intangible property interests, including rights that attach to tangible property.

When analyzing whether intangible property interests are protected by the takings clause, the vague, general answer that most cases provide is that constitutionally protected property interests are created and defined by existing rules or understandings that stem from an independent source, such as state law. Very few Florida appellate cases have explored what this means exactly. This new Second District opinion—Hillsborough County v. Gulf Coast Transportation—takes a deep dive into that question and helps to clarify this otherwise amorphous concept of what constitutes a constitutionally protected property interest. Most importantly, it creates a bright line rule—the Legislature can eliminate property that exists solely by virtue of legislation without paying compensation under the takings clause. In other words, the Legislature can destroy property that it creates without consequence. The majority decision drew a vigorous dissent.