Chad Trausch Just wanted to build a small addition to his home in Miami. With a baby on the way, he and his wife are making room for her parents to move in and help care for the baby. But when he submitted his plans, the city imposed a condition he didn’t expect: If he wanted a permit to build in his backyard, he would first need to grant public use of half of his front yard.
The city required Trausch to record a deed dedicating his 10-by-50-foot property to public use at his own expense. Such a condition would allow the city to treat the land as its own and use it for sidewalks, street widening or utilities without paying him a fee.
This is not a case of eminent domain: there is no compensation, no formal expropriation. Just a response to a standard license application.
“They said in no uncertain terms that if you don’t give up the land, you don’t get the permit,” Trausch told Realtor.com®.
When Trausch refused, his addition stalled, costing him thousands of additional dollars. But as he researched more, he discovered that he was not alone. With legal help from the Institute for Justice, Traush uncovered a practice that may be affecting more than 1,000 Miami homeowners by forcing residents to grant public rights-of-way through permits without any public use plan or payment, according to a new lawsuit.
Backyard Expansion Permits and Front Yard Ultimatum
The city’s request comes on the basis that it needs the 500 square feet of land for future right-of-way expansion.
A public right of way is the legal right of the public to use specific land, even if it is privately owned. It is this principle that makes sidewalks and utilities possible. In Miami, the height of public rights-of-way is 25 feet, according to local regulations. This means that, measured from the center of the street, there should be a 25-foot radius set aside for public use, Suranjan Senexplained one of IJ’s attorneys.
The highlighted area shows the portion of the Trausch family’s front yard that the city required as a condition of issuing a building permit. Source: Institute of Justice.
Currently, in Trausches’ neighborhood, the 25-foot radius aligns almost perfectly with where sidewalks end and front yards begin, the senator said. But the building setback line (also called the base building line) — the area of the property where construction is prohibited — extends 35 feet from the center of the street, creating a 10-foot gap between the edge of the public right-of-way and where construction is allowed to begin.
The city says it needs the land for future development plans, but Trausch’s team says that doesn’t mean the property should be up for grabs.
“Chad owns it. He can exclude people. He can build a fence there, but he’s not allowed to build there,” the senator said.
Complicating matters further, the city has no formal plans for expansion and no compensation is being offered to Trausches. To make matters worse, Traush said, the city wanted him to pay to record the deed transfer himself.
“They asked us to pay the fee out of our own pockets and then handed it over to us [it to] They are free. … They say this is how it’s always been done,” he said.
But Trausch, a Navy veteran, doesn’t think so. Instead, he defended himself in court and fought the city for more than a year at huge personal expense. At the time, inflation and rising construction costs added about $200,000 to his renovation budget.
Even more devastating, the standoff forced Trausch’s wife and newborn to temporarily move out of state to seek child care support. Trausch stayed to manage the house, the job, and the lawsuit.
“It really hurts our family,” he said.
How cities can claim private land without using eminent domain
Unlike the formal eminent domain process, in which the government must certify public use and pay compensation, the city of Miami allegedly has an “unwritten rule” that sidesteps the process entirely.
If a homeowner applies for a permit and their building’s setback or baseline exceeds the public right-of-way line, the city will require the difference.
Chad Trausch outside his historic Miami bungalow. Source: Institute of Justice.
Sen said in a deposition in the IJ lawsuit that the Miami public works director testified that “their policy is an unwritten rule that if you need a land use permit and if you have a base building line on your property that extends beyond the currently established public right of way, then they mechanically require that as a condition of your permit.”
The IJ team said the process violated long-established legal principles.
“The city should be doing expropriation on this type of thing,” Sen said. But, he added, “I’m not sure they’ll be able to acquire the land through eminent domain because they don’t have any concrete plans for it.”
In a proper taking, the government must justify its need, show how the land will be used, is reasonably necessary for the public use, and then pay fair market value for the land taken.
But no plans have been proposed.
“That land was not planned at all,” Trausch said.
More than 1,000 households could be affected
The Traushes’ case may not be unique.
By systematically tracking homes whose underlying building lines extend beyond standard public rights-of-way, the Institute for Justice identified 66 streets and more than 1,000 homes on streets where the same permitting triggers could force them to grant partial public rights-of-way to their front yards.
“We’ve heard from architects, contractors and attorneys in Miami that they do this to people in Miami all the time and it’s just routine, so people don’t really fight back,” Trausch said.
One clue to this approach may lie in the city’s own maps.
“If you look at a GIS map of Miami’s property lines, you can actually see where it zigzags,” the senator said. “I think people can infer that every time it zigzags like this, it represents that lot being forced to give up their front yard.”
In court documents, the plaintiffs cited a sworn testimony from Miami’s public works director, who said the city had brought hundreds of homeowners into compliance with the requirement.
But so far, officials have taken no action to end the practice.
Why plaintiffs say it’s unconstitutional and why homeowners rarely fight back
The legal team representing the Trausches argued that what happened in Miami amounted to an unconstitutional final violation of eminent domain rules.
“We also said if you want to commandeer this, you can do so, but you have to compensate us,” Trausch said.
But, he added, “They said, no, it’s not eminent domain. We’re not going to compensate you for anything. In fact, you have to self-fund the transfer of the land to us.”
Traush said most homeowners don’t fight back because the value of the project they’re trying to complete often exceeds the value of the land the city wants to acquire public rights-of-way for.
“In most cases, the value of me doing my project and building a home for my family will far outweigh the land,” he said. “So they’re counting on most people giving up.”
When the Institute of Justice became involved in the case, the city quickly dropped its demands — at least as far as the Traushes were concerned. “Two weeks later, once IJ filed a notice to appear in court, the city said, OK, we’re going to waive that condition.”
For Trausch, the timing sent him a message. “It’s kind of insulting, right? Because it means they’re happy to fight me and stop me. But once some real lawyers show up, they try to make it go away.”
Even then, Trausch said, the city made clear the exemption was temporary. “They said they reserved the right to claim the land and claim it again.”
That means any new permits — for a new roof, future expansion or other necessary upgrades on the historic building built in the 1930s — could trigger a condemnation. That’s why he and IJ moved forward with the case. They want the court to declare the practice illegal and prevent the city from using it in the future. They are also seeking compensation for damages caused by the delay, which are currently estimated to be in the hundreds of thousands of dollars.
Beyond the legal issues, Trausch said the case raises a deeper question about fairness and trust. “We love living in Miami, we believe in the community, we want to put down roots here, and we want them to follow the same rules they want us to follow.”
His attorney believes that’s why it’s more than just a 500-square-foot plot of land.
“People don’t realize how important land-use laws are to our daily lives,” Sen said. At the heart of the case, he argued, were fundamental constitutional commitments. “People have a right to use their property, and people have a right not to have their property taken away from them without just compensation.”
