Chad Trausch he just wanted to build a small addition to his house in Miami. With a baby on the way, he and his wife were making room for her parents to move in and help with childcare. But when he submitted the plans, the city hit him with a condition he never expected: If he wanted a permit to build in the backyard, he would first have to give the public the right to use half of the front yard.
The city required Trausch to record a deed deeding a 10-by-50-foot strip of his property for public use at his own expense. Such a condition would have allowed the city to treat the land as its own for sidewalks, street widening or utilities without paying for it.
It was not a case of eminent domain: there was no compensation, no formal taking. Just a response to a standard permit application.
“They said in no uncertain terms, if you don’t give up this land, you’re not going to get your permit,” Trausch tells Realtor.com®.
When Trausch refused, his addition stalled, costing him thousands of dollars in additional expenses. But the deeper he dug, it became clear that he was far from alone. With legal help from the Institute for Justice, Trausch uncovered a practice that may affect more than 1,000 Miami homeowners — one that, according to a new lawsuit, pressures residents to grant public right-of-way to their land through permits without any public use plan or payment.
A backyard addition permit and a backyard ultimatum
Behind the city’s request was a claim that it needed the 500-square-foot patch for a future right-of-way expansion.
Public right of way is the legal right of the public to use a certain piece of land, even if it is private property. It is the doctrine that makes sidewalks and utilities possible. In Miami, the public right-of-way is set at 25 feet by local code. This means that, when measured from the center of the street, there should be a 25-foot radius that is reserved for public use, Suranjan Senexplains an IJ lawyer.
The highlighted area shows the portion of the Trausch family’s yard that the city required as a condition of issuing the building permit. Source: Institute for Justice.
Currently, in the Trausches’ neighborhood, that 25-foot radius lines up almost perfectly with where the sidewalk ends and their front yard begins, the senator says. But the building setback line (also called the building baseline)—the area of a property where construction is prohibited—extends 35 feet from the center of the street, creating a 10-foot margin between the building and the right-of-way. is allowed to begin.
The city has said it needs the land to accommodate future development plans, but Trausch’s team says that doesn’t mean the property should be put up for grabs.
“Chad owns it. He can exclude people from it. He can have the fence there, but he’s just not allowed to build right there,” the senator says.
To further complicate matters, the city had no formal expansion plan and offered no compensation to the Trausches. Worse, Trausch says, the city wanted to pay to record the deed transfer itself.
“They’re asking us to pay this out of pocket, then out of hand [it to] them for free. … They said that’s how it’s always been done,” he says.
But Trausch, a Navy veteran, wasn’t having it. Instead, he represented himself in court and fought the city for over a year at enormous personal expense. During that time, inflation and rising construction costs caused his renovation budget to increase by about $200,000.
Even more damaging, the conflict forced Trausch’s wife and newborn to temporarily move out of state for childcare support. Trausch stayed behind to manage home, work and the trial.
“It really hurt our family,” he says.
How the city can claim private land without using eminent domain
Unlike a formal eminent domain proceeding, where the government must prove public use and pay damages, the city of Miami allegedly developed an “unwritten rule” that bypasses that process entirely.
If a homeowner applies for a permit and the building setback or baseline extends beyond the public right-of-way, the city requests the variance.
Chad Trausch outside his historic bungalow home in Miami. Source: Institute for Justice.
Sen says in a deposition for the IJ lawsuit that Miami’s director of Public Works testified that “their policy is an unwritten rule that if you need a land use permit and if the building baseline on your property exceeds the currently established public right-of-way, then they will mechanically require it as a condition of your permit.”
This process violates longstanding legal doctrine, according to the IJ team.
“Cities should go through eminent domain for things like this,” Sen says. But, he adds, “I’m not sure that they would actually be able to take this land through eminent domain and the reason is that they don’t have any specific plan for it.”
In a proper taking, the government must justify its need, show how the land will be used, that it is reasonably necessary for public use, and then pay fair market value for what it takes.
But no plan was presented.
“There’s no plan for that land at all,” says Trausch.
More than 1,000 homes could be affected
Trausches’ case may be far from unique.
By systematically tracking homes where the building baseline exceeds the standard public right-of-way, the Institute for Justice identified 66 streets and more than 1,000 homes on streets where the same permitting trigger could force them to grant public right-of-way to a portion of their front yard.
“I’ve heard from architects, contractors, lawyers in Miami that they do this all the time to people in Miami, and it’s just done as a matter of routine, so people don’t really fight back,” Trausch says.
An indication of the practice may be in the city’s own maps.
“If you look at the GIS maps of the property lines in Miami, you can actually see where it’s going to zigzag,” the senator says. “I think it can be inferred that every time it zigzags like that, that means that parcel has been forced to give up its front yard.”
In court filings, the plaintiffs cite sworn testimony from Miami’s director of public works, who said the city subjected hundreds of homeowners to the requirement.
However, so far, there has been no official move to end the practice.
Why plaintiffs say it’s unconstitutional and why homeowners rarely fight back
The legal team representing the Trausches argue that what is happening in Miami amounts to a final unconstitutionality around eminent domain rules.
“We also said, if you want to do this, you can do that, but you have to compensate us,” says Trausch.
But, he adds, “They said, no, this is not eminent domain. We’re not compensating you anything. In fact, you have to self-fund this surrender of the land to us.”
Most homeowners, Trausch says, don’t pay because the value of the project they’re trying to complete often exceeds the value of the land the city wants for public right-of-way.
“My value in doing my project and building a house for my family will be much higher, in most cases, than the land,” he says. “So they’re counting on most people to give up.”
When the Institute for Justice got on the case, the city quickly backed off its request — at least for the Trausches. “As soon as the IJ filed his notice with the court, two weeks later, the city said, OK, we’re going to drop that condition.”
To Trausch, the synchronization sent a message. “It’s kind of insulting, isn’t it? Because it means they were happy to fight me and stop me. But as soon as some real lawyers showed up, they tried to disappear.”
Even then, Trausch says the city made it clear the waiver was temporary. “They said they reserve the right to claim this land and claim it again.”
That means any new permit — for a new roof, future addition or other upgrade needed for a historic home built in the 1930s — could trigger a foreclosure. That’s why he and IJ are moving forward with their case. They want the court to declare the practice illegal and block the city from using it in the future. It is also seeking damages for the costs of the delay, now estimated at several hundred thousand dollars.
Beyond the legal questions, Trausch says the case raises a deeper issue about fairness and trust. “We love living in Miami, we believe in community, we want to put down roots here, and we expect them to follow the same rules that they expect us to follow.”
That is why it is about more than a 500 square meter strip of land, his lawyers claim.
“People don’t realize how important land use law is to our daily lives,” says Sen. At the heart of the case, he argues, is a basic constitutional promise. “People have a right to use their property, and people have a right not to have their property taken from them without just compensation.”