In Support of a Bad-Faith Exception to the Interim Damages Rule in Land Use Cases

Abstract

The thoughtful and provocative essay by Christopher Duerksen and Michael Mantell on Interim Damages: A Remedy in Land Use Cases? ¹ touched a responsive chord in this land use litigator. Having devoted the past year to the trial of a massive lawsuit brought by a frustrated developer against a recalcitrant local government,² I have frequently bemoaned the lack of any precedent in Florida law—and the law of most other jurisdictions—for interim damages. In the absence of such relief, a judgment invalidating unlawful land use regulations can be a hollow victory indeed. Obtaining a final judgment, following lengthy trial proceedings and interminable appeals, can take years. In the meantime, the owner is deprived of the use of his property, incurs substantial costs such as interest, taxes, and legal expenses, and suffers loss of anticipated profits. More vexing still, the “victorious” owner may find that his original project is no longer economically feasible or that the local government immediately enacts another ordinance to prevent development.