Grand Theft: Property

Is FEMA Forcing Monroe County to Pay Millions for Regulatory Takings as the Price of Maintaining Flood Insurance in the County?

2011-12-31T23:15:00.000-05:00

On Christmas Eve 2011, the Florida Keys Keynoter published an article entitled "County to Sue FEMA Over Habitat Inspections." One wonders how Monroe County even figured out it had a problem --- even though the Florida Key Deer sued the Federal Emergency Management Agency (FEMA) in 1990.

In that case, the Key Deer, through their human spokesman, sued to prohibit the issuance of federal flood insurance in areas where Key Deer habitat existed. A summary judgment hearing was held, in Key West, on August 25, 1994. I assume the Key West Citizen let the locals know that a bunch of deer were trying to stop development in the Florida Keys. Monroe County, on the other hand, made no effort to intervene in the lawsuit.

Following the hearing, U.S. District Judge Michael Moore entered summary judgment in favor of the Key Deer, and against FEMA, ordering FEMA to "consult with" the USFWS (U.S. Fish & Wildlife Service) within 30 days. The agencies were required to determine whether the implementation of FEMA's National Flood Insurance Program [NFIP] was "likely to jeopardize the continued existence of the endangered Key Deer." See Florida Key Deer, et al. v.Stickney, 864 F. Supp. 1222 (DC SD Fla., 1994).

Several people have asked why Monroe County did not move to intervene in the 1990 Key Deer lawsuit. There is a simple answer for this. After the huge changes in land development regulations that Monroe County went through from February 1982 through September 1986, including more than 100 public hearings (or one every two weeks for four years), Florida Keys landowners were worn out. In addition, all the 1990 Key Deer lawsuit sought to accomplish was to require FEMA to "consult" with USFWS.

In 1990, USFWS was adamantly opposed to FEMA issuing flood insurance policies in the Florida Keys. As time went on, USFWS began to waiver, and it ultimately decided to "work with" FEMA. One could probably look at Washington, DC, politics between 1990 and 2005, and figure out who was doing what to whom, but that is a story for another day (and another blogger).

Nothing much occurred for the next 15 years, until the Key Deer plaintiffs sought, and Judge Moore granted, a permanent injunction against both FEMA and the USFWS. The injunction was to be lifted after the agencies "have complied with the [court's] order." As part of the order, the federal agencies were to provide the court with a list of all the properties in the Florida Keys that are "suitable habitat for the Listed Species." By 2005, the list had grown to eight species: the Key Largo cotton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Stock Island tree snail, and Key tree cactus. See Florida Key Deer, et al, v. Brown, et al., 386 F. Supp. 2d 1281 (DC SD Fla. 2005), affirmed, 522 F. 3d 1133 (11th Cir., 2008).

Monroe County finally woke up in 2005 -- not because the County was asleep, but because the County was beginning to understand the concept of "regulatory taking" jurisprudence. It frantically sought to become a defendant in Florida Key Deer v. Brown, supra, but Judge Moore rejected the County's effort -- saying it was too little, too late, and that after waiting 15 years to intervene, the County's options had run out. In an attempt to appear meaningful, Monroe County appeared as an amicus in the 11th Circuit's appeal of Judge Moore's 2005 decision.

The future is not clear as to Monroe County. But what is this hullabaloo all about? First, we note that many parts of the United States were denied federal flood Insurance in 1989. These are coastal areas deemed "too sensitive" for development for a variety of reasons, and are in the Coastal Barrier Resource System (CBRS). No Name Key, just east of Big Pine Key, is such an area. There are several other parts of the Keys that were, or almost were, designated as CBRS zones in 1989.

The federal flood insurance program does not reach the CBRS areas, yet those areas continue to be developed, with or without some form of flood insurance. If people want to own a house on a beach, they are in an income bracket in which they can afford to purchase private flood insurance. What difference does it make whether a Federal flood insurance prohibition or a CBRS prohibition prevents private landowners from obtaining inexpensive flood insurance from the federal government? These landowners are going to build anyway.

Monroe County has had a schizophrenic County Commission since 1990 -- which happens to be when the CBRS and flood insurance fiascos started (and I started practicing law here in 1983). The County's latest threat, as County Attorney Bob Shillinger put it, is:

"We'll file suit and seek an injunction to stop [FEMA's request to Monroe County to determine which parcels are located in endangered species habitat]." Why, I am not sure. The County also puts a price tag on the issue, quoting County Administrator Roman Gastesi, stating:

"the real exposure comes in possible takings cases in which landowners claim they can't build on their land because the County denied use of the land through the Endangered Species Act. They could then sue the County for the value of their land."

Now, I am the first person who would sue the County under Mr. Gastesi's theory, if it made sense. But, these are federal regulations, and they don't actually deprive landowners of anything other than subsidized federal flood insurance -- which is not within the County's purview. On the other hand, I do not pretend to be a genius, and I would be willing to listen to the County's theories. The invitation is theirs to accept or reject.

On that note, I wish everyone a Happy New Year! (And it lies less than an hour away.)

Do Some of our Elected Judges Lean Toward "Politically Correct" Decisions?

2011-12-29T01:38:00.003-05:00

Any trial attorney knows that psychological issues are as important to a trial judge as legal issues are to a jury. Anyone who ever watched a Perry Mason TV episode (sorry if you're too young to get it) understands the role emotions play in a courtroom. Instead of cops and robbers, we often just have robbers who consist of: (a) government bureaucrats who are interested in "taking" private property without paying just compensation, and (b) trial court judges who are more concerned with the financial integrity of the local government than they are for the Constitution of the United States of America.

The 50 states that comprise the United States of America are blessed with some of the most pristine -- and beautiful -- landscapes on earth. For private owners of these landscapes, the words "beautiful" and "pristine" have often become fighting words. Yet in 1789, our founders reached an accommodation, of sorts, on that issue. That deal, ultimately part of our constitution, and included assurances that no private property would be taken by the government without just compensation.

It would not surprise me to learn that, on the first opportunity, some 18th century government bureaucrats sought to seize private property "for a public purpose," without any regard for just compensation. Today, it goes without saying that local governments have fallen behind on revenue projections to the extent that their grande schemes of the previous decade were nothing but pixie dust. Unfortunately, that dust includes fixed labor contracts with government employees' unions, primarily teachers, firefighters, and police, but also school janitors, bus drivers, etc. These forces can re-shape the environment in any town or city in the United States.

One subject, that of elected vs. appointed trial judges, has come up many times over the past 200 years. To whom are elected judges indebted to? The subject has been debated before, as we note below.

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"What method of judicial selection produces the “best” judges? And how do we determine who are the “best” judges? Stephen J. Choi (NYU Law), G. Mitu Gulati (Duke Law), and Eric A. Posner (University of Chicago Law) endeavored to answer these questions in their paper, “Professionals or Politicians: The Uncertain Empirical Case For An Elected Rather Than An Appointed Judiciary.” They took an empirical look at how differently selected judges rate on effort, skill, and independence aspects of judicial performance. As you might discern from the title, which judges perform “best” largely turns on what virtues you are looking for in a judge. (Hat tip to the University of Chicago Law Faculty Blog).

Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

It is my professional opinion that judges who are appointed on ability, rather than elected in a nonpartison election are the better choice.

The Galleon Bay Case

2011-12-01T22:08:00.020-05:00

During the 1960s, Hannelore and Wolfgang Schleu bought undeveloped land on No Name Key, then linked by a wooden bridge to Big Pine Key. In the late '60s and early '70s, the Schleus, and others, platted two canal subdivisions, Bahia Shores in 1969 and Dolphin Harbour in 1970, with 91 lots in total. The Schleus held on to additional vacant land east of the two subdivisions, 14.5 acres of which were transferred to the Galleon Bay Corporation.

In 1986 - at the request of a commercial fisherman who had an option to buy the 14.5 acres, Monroe County rezoned the Galleon Bay land to commercial fishing village, or CFV, a zoning district that allows both residential development and limited commercial fishing uses. When the fisherman could not obtain a dredging permit from the Dolphin Harbour canal to the 2-acre borrow pit on the Galleon Bay parcel, he let the option expire. At that point in time, the Schleu's daughter began a quest to develop the Galleon Bay land.

This is where we came in - in 1988 - to assist Galleon Bay in obtaining a dredging permit so fishermen could have ingress and egress to the ocean. Even though the state agency responsible for issuing the permit agreed to do so, another state agency - the Department of Community Affairs (DCA) - exercised a then-unheard of state authority, under the federal Coastal Zone Management Act, and stated its opposition to the issuance of the dredging permit. What made this particularly galling was the same agency - DCA - had to sign off on the rezoning to commercial fishing village just two years earlier.

After its first fiasco with DCA, Galleon Bay requested a change in zoning to improved subdivision, that Monroe County denied. After all, they had to protect commercial fishing villages even if they had no access to the ocean. Undaunted, in January 1991 Ms. Schleu appeared before the County Commission for a 14-lot plat approval - after giving up 11 of the 25 dwelling units that supposedly came with CFA zoning. The plat was approved, but the DCA stuck its nose into Galleon Bay again. The DCA lodged an appeal of the plat approval with the Florida Land & Water Adjudicatory Commission (FLAWAC), an "agency" comprised of the Governor and Cabinet of Florida.

Still undaunted, Ms. Schleu filed a lawsuit against the Department of Community Affairs, and she filed it in the 16th Judicial Circuit, which consists solely of Monroe County. Circuit Court Judge Richard Fowler strongly suggested the DCA settle with Galleon Bay. And, after numerous conferences and delays, DCA, the County, and Galleon Bay agreed to a reduction in the sizes of the 14 lots, and the Revised Plat of Galleon Bay was approved by the County Commission in April 1994.

From 1991 to 2011, the only development on the Galleon Bay subdivision has been the construction of roads and drainage structures. One lot was exchanged for a loan advanced by a family friend. It is now owned by the government - because she could not build on it.

Galleon Bay went through a (statutory, not common-law) vested rights proceeding in 1998, after which a hearing officer, in October 1998, determined the corporation had invested $578,670 from the date of the first plat approval, January 1991, through April 1998. He recommended the County grant Galleon Bay vested rights to construct 14 homes on the property.

By 1998, the majority of the County Commission were "got-miners" (I've got mine; we don't want any more development). In April 1999, the County Commission rejected both the hearing officer's factual findings - which is a no-no - and his recommended order. In November 2001, Galleon Bay filed a Certiorari complaint against the Monroe County Commission on their vested rights decision. Circuit Judge Richard Payne reversed the County Commission's 1999 decision. See Final Judgment Granting Writ of Certiorari, October 2002. Monroe County appealed to the Third District Court of Appeal, and lost. Monroe County v. Galleon Bay Corporation, 876 So. 2d 569, writ denied, no opinion (Fla. 3rd DCA, 2004).

Meanwhile, in May 2002, Galleon Bay filed a regulatory taking lawsuit against Monroe County. The County third-partied the State of Florida, and Galleon Bay also sued the State after they became a party. Circuit Judge Richard Payne rendered an Amended Order on Liability on January 30, 2006. On April 18, 2006, Monroe County and the State of Florida filed a rather novel, Petition for Writ of Prohibition with the Third District Court of Appeal. The petition is so off-the-wall that I always suggest attorneys read it, if only for laughs. The District Court denied the petition, without oral argument, on June 2, 2006, four days before the jury trial was to begin. State of Florida and Monroe County, 930 So. 2d 627 (Fla. 3d DCA 2006). The jury trial on compensation was had June 6-10, and 12, 2006. The jury returned a verdict of $3,000,000.

Galleon Bay's appraiser valued the subject property at $6,000,000, while the government's appraiser valued it at $250,000. Galleon Bay had forcefully argued before, and during, trial that the government's appraiser should not be allowed to testify, as his appraisals were nonsensical. All the jury did was split the difference. Galleon Bay moved for a new trial, which was granted. Order Granting Motion for New Trial. The County and State appealed the new trial order and lost. Monroe County et al. v. Galleon Bay Corporation, 954 So. 2d 1169, per curiam affirmed, (Fla. 3d DCA 2007).

Circuit Judge Richard Payne retired at the end of 2006, and his successor rolled the clock back to before January 30, 2006, invalidating Judge Payne's January 30, 2006, liability order. In light of the fact that this successor judge also threw out four regulatory taking cases that were in front of him (Collins, Shands, McCole, and Beyer), and he was reversed in Collins, Shands, and Beyer, Galleon Bay filed a motion to disqualify the successor judge, as did Collins, Shands, and Beyer. Galleon Bay's regulatory taking case ended up with Circuit Judge Mark Jones - whose judicial experience is almost exclusively criminal law. Following a four-day bench trial on liability (as Judge Payne's January 30, 2006, liability order had been rescinded), Judge Jones entered an order, on April 27, 2011, dismissing Galleon Bay's regulatory taking case in its entirety. Galleon Bay has appealed that order, and its initial brief is due on January 4, 2012. For those with an interest in these matters, you may wish to read Judge Jones' Final Judgment in Favor of Defendants Denying Claim for Inverse Condemnation.

Twenty years is not the end of it all. There will be more to come.

Florida's Trial Judges Should be Appointed, Not Elected

2011-11-19T01:37:00.004-05:00

There are good state trial judges in Florida, and there are bad ones. However, all of them are elected -- not appointed as state appellate judges and all federal judges -- are. I have been a trial and appellate lawyer in Monroe County (the Florida Keys) since 1983. Over those 28 years, I have appeared before good, and not-so-good, judges. I have also appeared before state appellate judges, and it is my firm conviction that electing trial judges is a bad idea.

Being an attorney is a second career for me -- and there are days when I wish I had never switched. From 1963 to 1970, I earned BS, MS, and PhD degrees from the University of Michigan. From 1966 through 1984, I published 50 peer-reviewed papers and reports. I published my first book in 1971, on the surface chemistry of activated carbon, and edited nine books on chemistry instrumentation from 1972 to 1981. In 1979, I graduated from George Washington University law school, in the top 5% of my class.

Monroe County has four Circuit judges and four County judges. Over the years, some Circuit judges have developed specialties such as criminal or probate matters. That works in Key West, where there are three Circuit Judges. Occasionally, the voters have elected judges who don't have the patience a judge needs, or do not take the time to learn a field of law that is in front of them. One of the best we ever had was Steve Shea, who did his own research and spent nights writing well reasoned decisions. However, Judge Shea irritated his colleagues to the point where they ran him off the bench. (Steve Shea passed away last year, from kidney cancer.)

I do not believe that Monroe County's trial judges are any different from those in the rest of Florida -- and they may well be better. What I do believe is that the parties, and counsel, who appear before Florida's trial judges are entitled to a higher level of quality than the haphazard situation we have now. Florida's appellate judges are appointed by the Governor. As far as I can tell from 24 years of appellate practice, our appointed judges are well-vetted by their peers. I realize this is an issue in many States, not just in Florida, but there is just no way to "vet" every lawyer who puts up signs before election day.

The Galleon Bay TragiComedy

2011-05-15T22:03:00.009-04:00

I cannot explain how a trial judge could enter the judgment that 16th Judicial Circuit Judge Mark Jones rendered in Galleon Bay Corporation v. Monroe County, et al., on April 27, 2011. This is the most extraordinary trial court decision I have ever seen --- and I've seen a lot in my 30 years of practicing law --- but this one takes the cake.

There is no doubt that Judge Jones is a very good trial judge. But his experience has been dominated by hundreds of criminal cases, where the government rarely loses. Before sitting down to write this blog entry, I pulled a Lexis-Nexis listing of every appellate decision in Judge Jones' career -- from June 11, 1997, through April 20, 2011. In 14 years on the bench, Judge Jones' decisions have been appealed 140 times. But for a few exceptions, he has rarely been reversed in his criminal appeals.

Judge Jones' appellate affirmances at the 3rd District Court of Appeal are impressive, but it is unlikely that his criminal successes will carry over into eminent domain law. He has never had to decide such a case, and nobody should be surprised when this Galleon Bay decision is reversed.

Collins Liability Trial Concluded April 14, 2011

2011-04-24T23:52:00.232-04:00

The liability trial in Collins, et al. v. Monroe County & State of Florida, was heard over nine days, from April 4-14, 2011, in Key West. When the Collins case returned to the trial court in 2009, it was ultimately assigned to Circuit Judge Tegan Slaton. Judge Slaton knocked out three of the eleven plaintiffs, and those three plaintiffs have filed their Notices of Appeal. In the nine trial days during April 2011, Judge Slaton heard testimony only on the issue of liability. (A compensation trial -- requiring a jury -- follows a finding of liability.)

Judge Slaton acknowledged a complete lack of experience in regulatory taking litigation -- but he is a copious note-taker. He tasked the parties to submit proposed orders after the trial transcript is available, and expressed hope that he would issue an order before August of this year. The transcript has been delivered, and the proposed orders are due on June 6, 2011.

[Edited May 14, 2011.]

April 4-14, 2011: Finally, a Trial in Collins v Monroe County

2011-03-26T00:03:00.286-04:00

[Edited May 14, 2011.] On December 31, 2008, the 3rd District Court of Appeal (DCA) reversed Circuit Judge David Audlin's 2007 dismissal of the 11-plaintiff Collins regulatory taking lawsuit. The Florida Supreme Court denied review July 16, 2009. After some judge-shifting, the liability trial was set by Circuit Judge Tegan Slaton, for April 4-14, 2011. Judge Slaton also dismissed three of the 11 plaintiffs before trial. The Collinses and Magrinis had received building permits -- but only after extensive delays. The Schneider heirs, according to Judge Slaton, "waited too long" to bring their taking claims (no statute of limitation argument here, just "you waited too long."). The Schneider heirs' claims are now being litigated by Greg Riordan, who is two generations removed from Mr. Schneider. These dismissals were appealed and are now before the 3rd DCA.

A Little History: On January 3, 1997, the original 11 Collins plaintiffs started down this path when Mr. Tobin and I filed their petitions for Beneficial Use Determinations ("BUDs"). The 1997 BUD process was effective January 4, 1996. It was written by the Florida Department of Community Affairs (DCA) as part of the Florida Keys 1996 Comprehensive Plan. Technically, the language was adopted -- by rule -- by the Governor and Cabinet sitting as the Florida Administration Commission (ADCOM). We would note that the 1996 ADCOM rule was a huge improvement over the unconstitutional BUD process that the County -- and ADCOM -- adopted in 1986. For those who were not involved in the 1982-86 evolution of the first ADCOM Florida Keys Comprehensive Plan, it is worth reviewing the 1986 BUD regulation to understand why landowners did not utilize the 1986 BUD to obtain compensation for the loss of all beneficial use of their land.

The 1986 BUD rule/regulation [this, too, had to be approved by ADCOM] required landowners whose property was unbuildable to: (1) make a "bona-fide attempt" to sell their post-1986 unbuildable property for no more than 40% of its pre-1986 Fair Market Value ("FMV"), and (2) if they found no buyers, these property owners would, at best, be entitled to compensation that would not exceed 40% of the land's pre-1986 FMV. The 1986 BUD rule/regulation was declared unconstitutional by Circuit Judge Richard Payne, in Gonzalez v. Monroe County, a lawsuit we initiated in 1988. Judge Payne's decision was affirmed by the 3rd DCA, with an opinion, in Monroe County v. Gonzalez, 593 So. 2d 1143 (Fla. 3d DCA 1992).

Ultimately, between 2002 and 2004, each of the Collins plaintiffs received a resolution, from the Monroe County Board of County Commissioners, stating that they had been "denied all beneficial use" of their subject properties. In 2004, they sued Monroe County for the just compensation they were entitled to under the United States and Florida Constitutions. On November 6, 2006, then-Chief Circuit Judge Richard Payne denied the County's and State's motions for summary judgment on liability. Unfortunately, Judge Payne was about to retire as of December 31, 2006, and this case was automatically assigned to newly-elected Circuit Judge David Audlin on January 1, 2007.

Judge Audlin turned out to be the governments' greatest ally in 2007. After assuming the Circuit Judge seat left vacant by Chief Circuit Judge Richard Payne, David Audlin swept all regulatory taking cases off his docket within a year! Needless to say, we spent many months on the Audlin appeals. We sucessfully reversed Judge Audlin's dismissals in Collins v. Monroe County and Beyers v. City of Marathon. At the same time, Pacific Legal Foundation ("PLF") successfully reversed Judge Audlin in Shands v. City of Marathon. [We are in the process of taking over PLF's responsibilities in Shands v. City of Marathon, while PLF focuses on appellate practice.]

So far, we have not been successful in reversing Judge Audlin's decision in McCole v. City of Marathon, nor Judge Garcia's decision in Sutton v. Monroe County. We believe these appeals were wrongly decided by the 3rd District Court of Appeal, but there are no longer any Florida courts in which we can continue these battles. There is a possibility, having exhausted State judicial remedies, that the Sutton and McCole cases can now be brought in a United States District Court under the United States Constitution. [At least U.S. trial judges do not have to worry about re-election.]

Happy New Year

2010-12-31T22:15:00.002-05:00

Well, it has been almost a year since I updated the Grand Theft: Property Blog. So a brief review of our regulatory takings cases in the Florida Keys appears to be in order.

I should point out that, in 2009, we spent about six months getting our Collins and Galleon Bay regulatory taking cases out of the hands of a pro-government trial judge, David Audlin. Judge Audlin had dismissed four regulatory taking cases in 2007 -- Collins v Monroe County, Shands v City of Marathon, McCole v City of Marathon, and Beyers v City of Marathon -- and Judge Luis Garcia dismissed a fifth case, Sutton v. Monroe County. On December 31, 2008, the Florida 3rd District Court of Appeal reversed Judge Audlin's dismissals of Collins and Shands -- but that still left McCole, Beyer, and Sutton to be decided.

The 3rd District Court of Appeal (3rd DCA) affirmed Judge Garcia's dismissal of the Sutton case on December 23, 2009. We were surprised by the 3rd DCA's decision because it was completely contrary to the Collins and Shands decisions of a year earlier. We filed a Motion for Rehearing in Sutton. That was denied May 25, 2010. We then filed a Petition for Discretionary Review with the Florida Supreme Court. That petition was denied on December 18, 2010 -- less than two weeks ago. There are some other options available to Mrs. Sutton, but I will leave that for another day.

The 3rd DCA's decision in Beyers v. City of Marathon, on June 9, 2010, was consistent with its earlier decisions in Collins and Shands, and the Beyer case was remanded to the trial court. However, the 3rd DCA rejected the McCole v. City of Marathon appeal on April 21, 2010, based upon its logic in the Sutton appeal.

This left us with successful appeals in Collins, Shands, and Beyers, but with completely contradictory decisions in Sutton and McCole. Because of the conflict, we filed petitions for discretionary review, in Sutton and McCole, before the Florida Supreme Court in mid-2010. Two weeks ago, on December 18, 2010, the Florida Supreme Court denied review in Sutton and McCole.

The only fact that distinguishes Sutton and McCole from Collins, Shands, and Beyers, from Sutton and McCole is that Ms. Sutton and the McColes "asked" if they might be able to develop their property many years ago, and were told that it was "unlikely" that they could do so. Neither Ms. Sutton nor the McColes requested a Beneficial Use Determination after being told development was "unlikely." In our opinion, this does not rise to the level of "ripeness" required by the U.S. Supreme Court in Williamson County. For that reason alone, we believe the Sutton and McCole decisions are wrong.

Ms. Sutton's and Ms. McCole's remedies are somewhat limited. Both can file regulatory taking claims in Federal court now that they have "exhausted State judicial remedies." The 3rd DCA, in a footnote, also invited Ms. Sutton to file a new building permit application. This, too, is an option.

It is fair to say that the status of regulatory taking claims in the Florida Keys remains somewhat unclear, even where the landowner has only informally sought a development order or building permit more than four years ago. At least this appears to be true in the minds of the appellate judges in Miami. Perhaps a Federal District Court decision to the contrary will change their minds.

In short, that's what we've been doing this past year. We are also moving forward on the Collins case, which is set for a liability trial in April 2011, and on the Galleon Bay case, another lawsuit that Judge Audlin screwed up during his reign in 2007. But ... more on those cases later this year.

When will the Government Figure it Out?

2010-01-25T17:04:00.006-05:00

Three weeks ago, the State of Florida deposited $8.85 million with the Clerk of Court for Monroe County to compensate the landowners in Florida DEP v. West for the condemnation of their North Key Largo properties in April 2004. When this eminent domain action was filed as a slow-take in 1995, the State offered a mere $160,000 for the subject properties. Our response to the slow-take was a regulatory taking counterclaim. That was our way to protect landowners from the State "walking away" from any jury verdict it did not like.

Land values began to rise in 2001 -- although not on these properties. In 2004 the State opted for a "quick-take." At that time, the State's estimated fair market value of the two parcels -- based on the confiscatory regulatory scheme -- was $630,000. But after executing the quick-take, the State could no longer walk away from a jury verdict that exceeded its budget. After all, nobody had been able to build on North Key Largo since February 8, 1982 (except at the Ocean Reef Club and a few existing subdivisions).

After the 2004 quick-takes, we re-cast the regulatory taking counterclaim into a jury instruction on condemnation blight. Even though the Florida Supreme Court has embraced condemnation blight on at least two occasions, the State's in-house attorneys could not grasp the concept. Fortunately we had a trial judge, Luis Garcia, who understands government cannot prohibit a landowner from using his property, and then benefit from its own actions by driving down the property's acquisition cost. (In 2001, Judge Garcia ruled the same way in another case, Shadek v Monroe County, where White & Case attorney Doug Halsey raised the same issues and Monroe County settled by paying $6 million in temporary taking damages.)

So ... the government goes down for the count again! I have remarked, on numerous occasions, that the reason for this waste of money is nothing more than the "tyranny of the majority" in small, attractive, relatively well-to-do communities such as the Florida Keys. Those who already own homes in the Keys will do everything in their power to prevent others from doing so. To that end, the "got-miners" elect like-minded County Commissioners, who respond by prohibiting new development wherever they find it. It's a self-perpetuating, downward spiral, that could well -- unless reversed -- bankrupt every owner of developed property in the Keys.

To got-miners: think about it!

Is the State Conceding its "Condemnation Blight" Battle in the Florida Keys?

2009-12-07T21:10:00.007-05:00

Last Wednesday, December 2, 2009, the Third District Court of Appeal denied the State of Florida's Motions for Rehearing & Conflict Certification in the "condemnation blight" case, Florida DEP v. West, et al. (original opinion affirming trial court), Case No. 3D08-3185. Two days later, on December 4, 2009, the State's trial/appellate counsel asked us to pick a date in January for the State to write the checks in this case.

This suggests the State decided not to seek discretionary review from the Florida Supreme Court -- a wiser decision than their last one in Collins v. Monroe County & the State of Florida. But, in Collins, the State and County did not face the prospect of incurring almost $2,000 per day in interest costs, so they could waste the landowners' time and money at will.

For those considering a "condemnation blight" attack on value-reducing land development regulations, consider the following. The State deposited $550,000 for Parcel 1 and $80,000 for Parcel 7, as its "good faith" fair market value estimates, in April 2004. The 2008 jury verdicts were $5,060,000 (Parcel 1) and $450,000 (Parcel 7) -- based on the April 2004 real estate market. These verdicts were 9.2 times (820% over) and 5.625 times (462.5% over) the 2004 "good-faith" estimates.

The October 8, 2008, judgments included interest from 2004, bringing the just compensation values to $6,908,114 and $599,142, respectively, or $7,507,256. Presuming the case can be resolved by January 15, 2010, the State's appeal will add $682,398 in additional interest to the landowners' awards -- bringing their compensation up to $8,189,654, or 13 times the State's 2004 "good-faith" estimates (or, if you like your numbers inverted, the good-faith estimates were only 7.7% of the condemnation award, with interest).

Confiscatory Land Use Regulations are Unconstitutional in Florida: It is Time For the Kill

2009-11-30T21:07:00.008-05:00

To the best of our knowledge, no local government in Florida -- other than Monroe County and its municipalities -- has ever been able to maintain confiscatory land development ("zoning") regulations. In 1984, the Florida Supreme Court held, in Dade County v. National Bulk Carriers, 450 So. 2d 213, 216 (Fla. 1984) that "if a zoning ordinance is confiscatory, the relief available is a judicial determination that the ordinance is unenforceable and must be stricken."

Government lawyers are wont to say that National Bulk Carriers was overruled, sub silentio, by the Supreme Court in First English Evangelical Church v. Los Angeles County, 482 U.S. 304 (1987), but that does not seem to be the case. In Joint Ventures v. FDOT, 563 So. 2d 162 (Fla 1990), a post-First English Florida Supreme Court held unconstitutional a statute that allowed the FDOT to "freeze" all development, for up to five years, and for a second five years if it wished, by recording a "reservation map" in the county records.

The 1990 supreme court invalidated Florida's "reservation map" statute, on Due Process grounds, after comparing its effect to the "condemnation blight" case of Bd. of Commissioners v. Tallahassee Bank, 1o8 So. 2d 74, 86 (Fla 1st DCA 1958), writ quashed, 116 So. 2d 762 (Fla 1959), stating "We perceive no valid distinction between "freezing" property in this fashion and deliberately attempting to depress land values in anticipation of eminent domain proceedings. Such action has been consistently prohibited."

In Joint Ventures, the supreme court sealed the fate of the Florida Keys' "Beneficial Use Determination" ("BUD") ordinances, when responding to FDOT's argument that "the property owner can always sue in inverse condemnation," as follows.

DOT contends that Joint Ventures' right to seek compensation through inverse condemnation cures the statute's failure to expressly provide for compensation. We disagree. ... [T]hat remedy is not equivalent to a property owner's remedy under the doctrine of eminent domain. Inverse condemnation affords the affected property owner an after-the-fact remedy, when there has already been a "taking" by regulation, and it is not a substitute for eminent domain protection facilitated by chapters 73 and 74 [Fla. Stat.]

The property owner who must resort to inverse condemnation is not on equal footing with an owner whose land is "taken" through formal condemnation proceedings. The former has the burden of seeking compensation, must initiate the inverse condemnation suit, and must finance the costs of litigation without the procedural protections afforded the condemnee.

In Joint Ventures (1990), as in National Bulk Carriers (1984), the Florida Supreme Court held the "reservation map" statute unconstitutional on Due Process grounds.

Fast forward to today. If it were not for the Keys' governments' "beneficial use" ordinances, many of these local land use regulations would have been declared unconstitutional 23 years ago. But let's take a look at those ordinances in the context of National Bulk Carriers and Joint Ventures -- the law in Florida.

Not one of the Keys' BUD ordinances provides for the acquisition of a landowner's property by the exercise of eminent domain, if the property has been rendered unbuildable by the local government's zoning regulations. A first-year law student could see this is a Due Process violation that renders the underlying confiscatory regulations unconstitutional.
Monroe County recently raised the "application fee" for a Beneficial Use Determination to almost $5,000. This is reminiscent of the $2 "poll tax" cases of the '60's. Is it remotely possible that a local government can assess the owners of land within its boundaries a "poll tax" of $5,000? If the government cannot assess a $2 fee for the right to vote, it cannot assess a $5,000 fee for the right to Just Compensation. Or any fee, for that matter.

There is a solution to this madness, and we are about to undertake it. We will soon file an action in the United States District Court for the Southern District of Florida, on behalf of several non-resident owners of Florida Keys property -- under the Federal court's "diversity jurisdiction" -- against the local governments and certain Florida state officials, to invalidate major portions of the Florida Keys' local government comprehensive plans and land development regulations, on Due Process grounds and Florida law.

Postscript: This situation reminds me of Pogo, who would say "we have met the enemy, and it is us." The reason the Florida Keys is up to its neck in "just compensation" liabilities is the classic tyranny of the majority problem. The people who own developed property in the Keys, and vote there, simply do not want anyone else to build anything within their driving radius. These cluckheads, who elect like-minded cluckheads to the County Commission and municipal Councils, have not yet figured out that they will be paying the bills for this fiasco for decades to come.

Has the Tide Turned?

2009-11-03T19:00:00.003-05:00

Since 1986, the Florida Keys' confiscatory land use regulations have been imposed only on owners of undeveloped land. Two-thirds of those landowners reside outside the Florida Keys. They have no right to vote on the "got-miners" choices for the County Commission. Since the got-miners' "rate-of-growth" ordinance was imposed on the Keys in 1992, vacant landowners have been selling their property to the government at rock-bottom prices that rarely reached 15% of Fair Market Value.

In 1996, Andy Tobin and I sent Voice of Reason newsletters to just over 10,000 owners of undeveloped Keys' properties. Today there are only 4,000 such owners. The Keys' rate-of-growth ordinances have limited development to under 250 building permits/year since 1992 -- or less than 3,750 dwelling units in 17 years. This suggests about 2,250 parcels have been sold to government at unfair prices.

Now that the Florida DEP v. West, et al., decision has been released by the 3d District Court of Appeal, perhaps the remaining 4,000 owners of undeveloped Keys' land will realize that the State has been acquiring Keys' property -- for 17 years -- for about 10% of Fair Market Value. The 3d District Court of Appeal will issue its "mandate" on the West decision in two days (November 5th), and we assume the State is not dumb enough to lose another half-million dollars in interest on a high-risk petition for "discretionary review" by the Florida Supreme Court (only 11% are accepted for "review;" substantially fewer actually result in a reversal).

[This post replaces an earlier post.]

Landowners' Condemnation Blight Judgments Affirmed

2009-10-21T12:50:00.005-04:00

Today, Florida's Third District Court of Appeal affirmed the trial court's judgments in Florida DEP v. West, et al, awarding nearly ten times the State's "good-faith" deposits when it condemned two North Key Largo properties in 2004. The trial (and chief) judge, Luis Garcia, should be pleased with his decision to require the jury to consider the "highest and best use" of these properties as of February 8, 1982 -- the last day they were "buildable" -- but valued in the 2004 real estate market.

Judge Garcia found, on the testimony of two former County Commissioners from the early 1980's, and from the voluminous paper trail, that Monroe County was made an "offer it couldn't refuse" in 1982, and again in 1986, and so on until the present day. Former Governor Bob Graham got his conservation land back in '82 ... but these landowners have yet to be paid, in 2009. Though the State DEP could seek "discretionary review" from the Florida Supreme Court, the odds of getting such a review are slim, and the State is running up interest to the tune of $1,468 per day. As of this date, the State's appeal has added $556,247 to the Landowners' compensation (at 11%/year, they should appeal forever).

All in all, this was a good day for those Florida Keys' landowners who have rebuffed the governments' 10-cents-on-the-dollar offers for all these years. For more details, see the West-Freeman section of my website.

(Edited 10/22/2009 to include interest information.)

It Could Be a Busy 4th Quarter

2009-10-08T00:36:00.005-04:00

After three weeks away from the pressure of brief-writing -- not to mention the stress of moving our pending regulatory taking and due process lawsuits -- it is a bit easier to cope. I did spend some of that downtime (at least an hour) thinking about what can be done to bring the Keys' land use regulations in line with those of a civilized society. Like the South of France. Not likely, that.

That raises a question: what civilized society would we like to emulate? California? There's a basket case, where affordable housing exactions are killing potential housing projects, and the state budget is a joke. How about Miami, Naples, or Fort Lauderdale? They have too much of everything, and the high vacancy rates to go with it.

Has anyone else noticed that Florida local governments (including the Keys) spent taxpayers' money like drunken sailors in the 2001-06 run-up? And now they're stuck with overpaid administrators and pension obligations that they will never be able to meet. OK, there's a goal.

First, fire half the County staff, starting with those who draw the largest paychecks. I challenge anyone to explain why we need a County Administrator when we have a County Commission that consists of five geniuses, all of whom are former (or future, because they are so smart) Nobel Prize winners. We could also do away with the County Attorney position, as all five Commissioners are more versed in the law than any attorney could possibly be. And the entire planning department could be let go, as there is nothing left to plan.

In the Keys, the City of Marathon cannot give away its building permits. The "village" of Islamorada was (correctly, I might add) deemed "charm-less" by United States District Judge James Lawrence King, and it is being sued by its former mayor, and a bunch of other people, over its sewer impact fees. Key West is, well, Key West. Monroe County may well be the only county in Florida where the population decreased over the 2000-2010 decade. Trust me, we will not get a merit badge for that statistic.

So ... are things good in the Keys? No. We have had several years of over-building, in large part because the State and County superseded the market, so every person who could, built a house. We now have a queue as long as my arm, of people who definitely do NOT want to build here. (The reason people wanted to build here was that "it was difficult.") We have had an artificial market here for 17 years, and it finally folded. Do we have a problem? Yes.

Do we need to change the regulatory climate in the Keys? Yes.

On Vacation

2009-09-29T02:29:00.003-04:00

Just a note to let you know Rana and I have been traveling in Italy and France since September 17th. We spent our first week in Venice, Italy, where Rana attended an oceanographic conference. At the moment, we are visiting with an former colleague from graduate school days, Stanley Pons, in the Italian Maritime Alps. We are in a perched, very old, village (Corte) about an hour from the Mediteranean coast, and about two hours from Nice, France. (Our hosts also have dsl internet access and a WiFi network in their ancient, stone, summer home.) We expect to be home on October 2nd, and will be back to work by October 5th. Ciao!

Nollan-Dolan Exactions May See More Play

2009-09-09T22:03:00.003-04:00

Since 1976, the State of Florida and the Monroe County (Florida Keys) Commission have imposed ever-increasing restrictions on the use of Florida Keys property -- using regulatory authority to confiscate private property without paying Just Compensation -- on the fuzzy theory that this will somehow better the universe (at no cost to the State and County taxpayers). The major shift took place on September 15, 1986, when the State "approved" a confiscatory comprehensive plan (that was written by the State) that prohibited the development of thousands of legally-platted lots within the Florida Keys, and downzoned thousands more.

In 1987 and 1994, the Supreme Court issued two regulatory taking opinions that did little more than muddy the waters. The 1987 decision, Nollan v. California Coastal Commission, 483 US 825, stemmed from a request for a building permit to rebuild the Nollans' oceanfront property with a larger residence. The California Coastal Commission acquiesced on the condition that the Nollans dedicate a portion of their property as a "viewing easement," that would allow passers-by to see the ocean from the street in front of the Nollans' home. Though many landowners had caved in to the Coastal Commission's demands, the Nollans sued, claiming the easement was an unconstitutional exaction. The Supreme Court agreed, explaining that a permit "condition" must be related to the "impact" of the development approved by said permit. In Nollan, the Supreme Court could not see a connection between the enlargement of the Nollan's home, and the need for passers-by to see the ocean.

In their 1994 decision. Dolan v City of Tigard, 512 U.S. 374, the Supreme Court supplemented the Nollan "connection," with a Dolan "proportionality" requirement for exactions imposed on private property owners. The Dolan decision has always been difficult to articulate. However, the 2006-2008 Utah Supreme Court has done a nice job explaining Dolan.

In B.A.M. Development v. Salt Lake County (I), 128 P. 3d 1161 (Utah 2006), and B.A.M. Development v. Salt Lake County (II), 196 P. 3d 601 (Utah 2008), the Utah Supreme Court reduced the Dolan "proportionality" requirement to dollars. In short, if the cost to the taxpayer exceeds the costs of its improvements (to the public), the taxpayer has been impermissibly overcharged. The difference is a Fifth Amendment taking.

The Key Deer Habitat Conservation Plan (HCP) is Invalid for Non-compliance with the Information Quality Act.

2009-08-17T21:02:00.010-04:00

The Florida Key deer were listed as an endangered species in 1967. Since then, the herd has increased in numbers and the individual deer have become heavier and healthier today than they were in 1970. See Harveson, et al., "Impacts of urbanization on Florida Key deer behavior and population dynamics," 134 Biological Conservation 321-331 (2007), available at http://www.sciencedirect.com. Harveson, et al., concluded Key deer prefer urbanized habitat on Big Pine Key, and that, in 2003, they were 10% heavier than those living in 1973.

On July 9, 2006, the State of Florida and Monroe County, which includes the Florida Keys, obtained an "incidental take permit" (ITP) from the U.S. Fish & Wildlife Service (USF&WS), ostensibly to protect the Key deer and the Playboy bunny (Sylvilagus palustris hefneri) from the ravages of human civilization. The only "scientific" basis for the ITP is an April 2006 Habitat Conservation Plan (HCP), prepared by Monroe County and the State of Florida.

The HCP relies solely on a chapter on population viability analysis (PVA), that the HCP's authors apparently lifted directly from Dr. Roel Lopez's 2001 Ph.D. dissertation, "Population Ecology of Florida Key Deer," Texas A&M University 2001. PVA calculations have become popular with conservation biologists, in part because there are at least five "canned" computer programs that will spit out apparent "results" without any regard for their accuracy -- or lack thereof.

The consensus amongst the mathematically capable is that one cannot obtain reliable extinction probabilities unless one has collected 5 to 10 years of data for every year to be projected; i.e., to project survival probabilities 50 years in the future, one would need 250 to 500 years of field data on the species in question. (The answer is "no," he did not have adequate data to calculate a PVA.) Dr. Lopez's 50- and 100-year PVA projections are subject to such huge error ranges that the means (or medians, as in the dissertation) are meaningless. Ergo, we have a classic nonsensical theory, "garbage in, garbage out," and a herd of bureaucrats depriving thousands of humans of their land and fortune (though the Key deer thrive in a developed environment).

Fortunately, an obscure federal statute prohibits the use of "garbage in, garbage out" theories in federal programs. Sec. 515(a) of Pub. L. 106-554 (2001), requires all Federal agencies to develop policies and procedures for "ensuring and maximizing the quality, objectivity, utility, and integrity of information" produced by said agencies.

Sec. 515(a) is known as the "Information Quality Act (IQA)," or by some agencies, the "Data Quality Act (DQA)." As OMB stated in its Federal Register Notice on the IQA regulations, 67 Fed. Reg. 8452-60 (Feb 22, 2002), when scientific information (data and analytical results) is relied on by a federal agency, "the original and supporting data shall be generated, and the analytical results shall be developed, using sound statistical and research methods."

Data and analytical results must be subjected to "peer review." In the scientific community, peer review involves submitting one's research to a respected scientific journal, where a scientist-editor will select (usually three) reviewers who regularly publish papers in the same field as the paper to be reviewed, to critically review and comment on the submission. Comments flow back and forth among the author, the editor, and the reviewers, and the paper is ultimately either published, published as modified, or rejected.

By now you have figured out that Ph.D. dissertations (including mine, in 1969) are not "peer reviewed," and do not qualify as "good science" under the 2001 Information Quality Act. Dr. Lopez purposely broke his dissertation into discrete chapters, each of which could stand on its own. He submitted individual chapters to scientific journals for peer review and, hopefully, publication. From 2002 through 2006, according to his curriculum vitae, Dr. Lopez was the senior author on five peer reviewed papers on Key deer, and a co-author on eight more. To his credit, NOT ONE of these 13 peer-reviewed papers (that's a lot!) mentions the PVA in his dissertation. I assume Dr. Lopez recognized the weaknesses in his computer-driven PVA, and published his strength, rather than canned PVA numbers.

So what's next? A reasonable move would be a petition to the USF&WS to rescind the 2006 Incidental Take Permit. The Service's IQA rules require it to respond to such a petition within 90 days after receipt of a petition from an "affected person." The rules also provide for an internal appeal, submitted within 21 days of the initial decision, if petitioner is not satisfied with the Service's response. The appeal must be completed within 60 days. If a petitioner is not satisfied with that decision, he or she may bring an action, against the Service, in federal court.

Casitas Municipal Water District Revisited

2009-08-10T01:16:00.004-04:00

On May 10, 2009, I wrote about the Federal Circuit's decision in Casitas Municipal Water District v. United States, where a local water district has successfully litigated a 5th Amendment taking claim against the United States for diverting water to provide a better life for endangered steelhead trout (and their human and wild predators, one may assume). I noted that the time to file a certiorari petition with the Supreme Court had not run. Well, that time has come and gone, and no petition was filed. The Solicitor General obtained two extensions of time to file the petition. The second extension expired July 17, 2009, and no petition was filed by the United States.

It should come as no surprise that endangered species litigation usually goes to the critters (although sometimes the plaintiffs' motives are suspect, and the public wins). I cannot recollect a taking case where the critters' keepers had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (Casitas is a physical taking case, so watch out.)

Casitas widens the open door for our class action on Big Pine and No Name Keys, where the Key deer and the Lower Keys marsh rabbits have been handed the keys to more than 1,000 vacant properties by none other than Monroe County, Florida. This confiscatory behavior extends to the rest of the Florida Keys, albeit with a less Draconian flair.

The Federal Circuit's 2-to-1 decision rests on a "physical taking" theory (water, of course), and former Chief Judge Mayer hammered on that point in his "dissent-in-part." Casitas will probably be most helpful in those situations where landowners cannot use any of their property -- thus establishing a Lucas-style categorical (or per-se) taking. What Casitas adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."

Reverse Endangered Species Act Claim

2009-08-05T21:52:00.004-04:00

In a comedic regulatory taking "defense," government counsel opposing our client's regulatory taking claim in Galleon Bay Corp. v. Monroe County & the State of Florida, are attempting to pin the tail on the federal government donkey, arguing "the US Fish & Wildlife Service made us do it."

Most land use attorneys know the USF&WS abhors "regulatory taking" issues because it doesn't have the money to buy "regulatory condemned" property and, if it were to do so, the F&WS would pay for the property out of the agency's regular budget. That means salaries and overhead suffer if a taking claim occurred. So ... what is going on here?

Apparently, the Monroe County Attorney, Suzanne Hutton, and Florida's Attorney General (and gubernatorial candidate), Bill McCollum, never got it. We have been served with a motion to dismiss, based on those politicians' nonsensical theory that the USF&WS "took" the subject property (on No Name Key) by "requiring" the County and State to apply for an Incidental Take Permit ("ITP") for the widening and fencing of US-1 on Big Pine Key, in Monroe County, Florida (the Florida Keys).

Just to bring everyone up to speed, the Endangered Species Act (ESA, adopted in Richard Nixon's administration) places burdens on government, not private sector, activities that affect listed species. Private development activities are not subject to the ESA, but landowners can apply for an ITP if they are concerned about the survival of an endangered species after their project has been completed.

As no landowner is required to apply for an Incidental Take Permit (ITP), no ITP is required for a private developer to build homes on No Name Key -- which already has nearly 60 homes -- or anywhere else, for that matter. Thus, there is no federal law or regulation that requires owners of Galleon Bay lots to obtain an ITP. Monroe County and the State took it upon themselves to obtain an ITP for the hundreds of vacant lot owners on Big Pine and No Name Keys, for the sole purpose of acquiring those parcels at fire-sale prices.

Government Denied Review by Florida Supreme Court in Collins v Monroe County

2009-07-17T09:59:00.003-04:00

Yesterday, the Florida Supreme Court denied the governments' petition for discretionary review in Collins, et al v. Monroe County & the State of Florida, 999 So. 2d 709 (2008), rev. denied (Fla. 7/16/2009). The governments' argument -- that Monroe County's Beneficial Use Determination administrative procedure did not trump prior Florida ripeness decisions of the 1st and 4th DCAs -- was without merit. The supreme court saw no conflict between the 3rd DCA's decision in Collins (BUD ripens) and the ripeness decisions in jurisdictions with no BUD (or similar) administrative process.

As Florida's "discretionary review" process is not an "appeal," the 90-day clock for appealing to the United States Supreme Court ran out on May 20, 2009.

The denial of review was rendered only 66 days after the last brief was filed -- which is 26 days quicker that the 92-day average for all review denials in the past 12 months. The result was hardly in doubt. Only 11% of 9,874 petitions for discretionary review were granted by the Florida Supreme Court in the 10 year period 1990-99, and there is no reason to believe anything has changed since the 1990's. If a horse in the Kentucky Derby had an 89% probability of success, a lot of people would bet on it. (Or maybe not, because the payout would be so low.)

As an aside, we note that the supreme court also awarded attorneys' fees to the plaintiffs (landowners).

They're Taking our Kodachrome Away

2009-07-12T21:34:00.003-04:00

After a 74-year run, Kodak has decided to stop producing Kodachrome film. The only remaining processor of Kodachrome has announced it will process the film until the end of 2010. For me, Kodachrome is the benchmark upon which all color film -- and digital -- images will be measured. (Click here for a more detailed analysis of the Kodachrome phenomenon.)

Kodachromes, as the song goes, do not fade (or at least do not fade after 74 years), as do the other (E-6) "chromes." I have Kodachrome aerial photos of my oil spill adventures in the 1970's, as well as hundreds of Kodachromes that refuse to fade while their E-6 counterparts have faded into pastels of their former selves.

I have been stashing rolls of Kodachrome for the past year, anticipating this day, and hope to shoot some more photographs in our National Parks before time runs out. So, if you begin to see gaps in my blog coverages, they are most likely related to the December 2010 end of Kodachrome.

Oral argument in Condemnation Blight case

2009-06-28T18:41:00.005-04:00

Oral argument was had Monday, June 22nd, in Key West, before Florida's Third District Court of Appeal, in the Condemnation Blight case of Florida DEP v. West, et al., that resulted in a $6.9 million judgment for two parcels that the state "quick-took" for $630,000 in 2004. (Details on MattsonLaw.com) The panel included Chief Judge Gersten and District Judges Suarez and Rothenberg. Judges Gersten and Suarez were on the panels in Collins v. Monroe County and Shands v City of Marathon one year ago (June 30, 2008). The Landowners prevailed in both Collins and Shands, and Judge Suarez signed both opinions.

It was obvious that Judge Rothenberg had read the briefs. She came out of the box at the State's attorney (for whom this was the first appeal he had ever briefed or argued) when he presented his theory that "this is not 'condemnation blight,' but was a regulatory taking in 1982." Judge Rothenberg punctured the State's balloon when she referred to the holding in Tahoe-Sierra -- that moratoria are "temporary takings," and that temporary takings do not accrue until they end. So much for the State's statute of limitations theory.

The West case is a superb example of condemnation blight. We thank Gideon Kanner for his life's work in this area. Most Florida Keys condemnation cases have been "lightly defended" by mainland Florida eminent domain lawyers (with one major exception, Doug Halsey), who had no clue what happened from 1982 forward. However, as Senior District Judge Alan Schwartz said in one of our oral arguments several years ago, "the courts don't exist to protect people from the use of their pens." We realize most owners of condemned Florida Keys properties could have used the condemnation blight strategy we used in this case, but their attorneys were unfamiliar with the facts on the ground.

Chief Judge Gersten asked both sides if they considered the State's theory of the case "fair." My response is obvious. The State's response was "I will not say this is fair, but we are governed by laws."

One of those laws is the Fifth Amendment to the United States Constitution, and that "law" requires the government to act in a fair and equitable manner when it condemns property (or does anything else). Keep checking back to learn how this comes out. The Third District Court of Appeal releases its decisions on Wednesdays, at about 10:30 AM.

U.S. Supreme Court disqualifies W Va Supreme Court Justice on due process grounds

2009-06-08T11:31:00.005-04:00

Today, in an astounding decision -- not because it was unexpected, but because all four "conservative" Justices dissented -- the Supreme Court reversed a West Virginia Supreme Court's decision because one Justice refused to recuse (disqualify) himself. See Caperton v. A. T. Massey Coal Co., Case No. 08-22 (U.S., June 8, 2009).

For those who missed the news coverage of this case, Caperton obtained a $50 million judgment against Massey. Massey appealed to the W. Va. Supreme Court. Meanwhile, one Brent Benjamin was challenging an incumbent Justice seeking re-election. Massey Coal's chairman, Don Blankenship, contributed $3 million to Mr. Benjamin's campaign. Mr. Benjamin was successful, and became Justice Benjamin. (Note added June 16: Only $1,000 went directly into Mr. Benjamin's campaign account, the other $2.999 million was spent on advertising on Mr. Benjamin's behalf.)

Caperton moved to disqualify Justice Benjamin, and the Justice refused to recuse himself. The supreme court reversed Caperton's $50 million judgment,on a 3-2 vote. One dissenter, Justice Starcher, wrote:

The majority opinion is morally wrong because it steals more than $60 million dollars from a man who was the victim of a deliberate, illegal scheme to destroy his business. The majority opinion is legally wrong because it uses erroneous legal reasoning to justify an immoral result.

The supreme court vacated its first effort and re-heard the case. Two Justices (including Starcher, J.) disqualified themselves. They were replaced by two trial court judges. The result was the same, 3-2 in favor of Massey. Three months later, Justice Benjamin released a 98-page concurring opinion that attempts to justify his refusal to disqualify himself.

The Supreme Court granted certiorari, and oral argument was held on March 3, 2009 -- just three months ago. The Court's swing-vote, Justice Kennedy, delivered the opinion, joined by Justices Stevens, Souter, Ginsburg, and Breyer. I've posted a link to the Court's opinions (Justices Roberts and Scalia filed dissenting opinions), and if you can read this you can read the opinions.

The dissents of Justices Roberts, Scalia, Thomas, and Alito are disturbing. While we are seeing a fair amount of conservative hand-wringing over Judge Sotomayor's nomination to the Supreme Court, we should not forget that "conservative" judges often side with the government -- except in land use cases, thank goodness. Judge Sotomayer would at least keep the balance when other (non land-use) Constitutional rights are at stake.

Suffice it to say that the Supreme Court's decision in Caperton v. Massey adds weight to the judicial disqualification process throughout the state and federal courts, in its renewed application of the Due Process Clause, in addition to statutory criteria, to support motions to disqualify judges.

Condemnation Blight Oral Argument Set

2009-05-22T20:53:00.006-04:00

For those who can get to Key West on June 22, 2009, Florida's 3rd District Court of Appeal has scheduled oral arguments that day in Florida v. West, et al., in the new Key West courthouse. This is the 2008 "condemnation blight" decision that required the State to pay ten times its "good faith deposit," in 2004, for two parcels of land on North Key Largo that have been under a development moratorium since February 9, 1982!

Updated May 31, 2009. Please check our website, http://mattsonlaw.com, to read the briefs before you make the trek to Key West. The State's Initial Brief is available, as is our Answer Brief, on the website. The State's Reply Brief is due on or before June 15, 2009.

Ms. Ahearn's $25 Million Eminent Domain Verdict

2009-05-11T21:30:00.004-04:00

Gideon Kanner posted this four days ago, about a 101-year old landowner who may have gotten even with the local government. Then the Eminent Domain Law Blog picked it up last Friday, and it's just too good to pass up.

The landowner, 101-year old Ms. Ahearn, had been offered $25 million for her golf course property some 10 years ago, and the local government (Evergreen Park, Illinois) killed the deal by refusing to rezone the property. Then, as luck would have it, the town decided to acquire the property by eminent domain ... offering $5 million. The jury, however, after 30 minutes of deliberation, came back with $25 million -- the amount Ms. Ahearn would have received 10 years ago.

Now comes the difficult part. As in Florida, Illinois apparently allows the condemning authority to "walk away" if it doesn't like the jury verdict. It pays costs and attorneys' fees, but that doesn't do much for the landowner.

We have an analogy to Ms. Ahearn's case here in the Florida Keys -- Florida DEP v West, et al. The West case is pending in the Florida Third District Court of Appeals, after a jury came in at $5.06 million in an eminent domain proceeding where the State put up only $550,000. We represent the landowners in West, and are defending the appeal. But we have a leg up on Ms. Ahearn -- as the State "blinked" and filed a "quick-take" almost at the height of the real estate bubble in 2004. The State of Florida cannot "walk away" on this one.

The State of Florida filed the West condemnation proceeding in 1995, as a slow-take (like Ms. Ahearn's in Illinois). We responded with a regulatory taking counterclaim, figuring the State would run like a scared rabbit if a jury came in at 10 times what the State was offering back then. At the least, the taking counterclaim could be pursued if the State decided to bail out of its slow-take. Fortunately, the State blinked in 2004, and we converted the counterclaim into a motion in-limine on condemnation blight.

Federal Circuit Finds Fifth Amendment Taking by Endangered Species Act

2009-05-10T14:52:00.011-04:00

In Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (2008), rehearing denied, 556 F.3d 1329 (Fed. Cir. 2009), the US Court of Appeals for the Federal Circuit reversed the Court of Federal Claims -- opinion at 76 Fed. Cl. 100 (2007) -- holding that an uncompensated taking under the Fifth Amendment has occurred.

... there is no doubt that the preservation of the habitat of an endangered species is for government and third party use -- the public -- which serves a public purpose. .... when the government forces Casitas to divert water away from the Robles-Casitas Canal to the fish ladder for the public purpose of protecting the West Coast Steelhead Trout, this is a governmental use of the water.

Every environmental NGO in the country filed amicus briefs in Casitas. Though I haven't read them all, it's just the same old song -- "endangered species are entitled to more Constitutional protection than are citizens of the United States." That just ain't so, and the Federal Circuit has so held.

This brings me to Monroe County's latest fiasco on Big Pine Key and No-Name Key. The County and the State of Florida teamed up to develop a BPK-NNK Habitat Conservation Plan to "protect" the endangered key deer and the Playboy marsh rabbits, that prohibits essentially all use of approximately 1,000 acres of undeveloped, privately-owned land. This confiscatory County/State HCP was submitted to the US Fish & Wildlife Service as part of an application for an Incidental Take Permit. Always happy to accept land donations, the USF&WS issued the ITP -- that recites verbatim the conditions in the County/State HCP.

The problem with this scenario is that the County and the State did not have any ownership interest in the land they donated to the F&WS to "save" the key deer and Playboy bunnies. Ooops? You bet! The only difference between the BPK-NNK HCP and Casitas Mun. Water District v. United States is that Casitas is a physical taking (because the water is physically taken from Casitas and given to the fish) and BPK-NNK is a regulatory taking.

Meanwhile, we have a class action lawsuit pending in state court (Lightner, et al. v. Monroe County and the State of Florida), alleging a regulatory taking of those 1,000 acres on BPK-NNK, that should benefit substantially from this excellent decision by the US Court of Appeals for the Federal Circuit.

As we see it, the County and State can rescind their confiscatory regulations and pay temporary taking damages to those who have sought development approvals since the regulations went into effect. Or they can pay out more than $200 million in compensation for a permanent taking of 1,000 acres on Big Pine Key and No-Name Key.

PS. The US Court of Federal Claims (CFC) has exclusive jurisdiction over all inverse condemnation claims -- in excess of $10,000 -- brought against the United States. The Federal Circuit Court of Appeals hears all appeals from the CFC. Yours truly has been admitted to practice before the CFC since 1985, and the Federal Circuit since 1990.

NOTE ADDED August 10, 2009. The U.S. Solicitor General (Elena Kagan) requested two extensions of time to file a petition for certiorari in Casitas Municipal Water District. The second extension ended July 17, 2009 -- 24 days ago -- and no petition has been docketed by the Supreme Court. Looks like the Casitas battle goes to the property owners.

Voice of Reason Recipients Getting the Message

2009-05-05T22:59:00.007-04:00

Five weeks after mailing the latest Voice of Reason to every owner of Tier I land in unincorporated Monroe County, responses from all over the country have been strong. One-third of the affected landowners reside outside Florida; another third live in Florida but outside Monroe County; the other third reside in Monroe County.

We have been getting e-mails and telephone calls every day from landowners who have resisted the State's siren invitations to buy their land for pennies on the dollar. Almost without exception, these landowners have no clue what their property would be worth in a proper eminent domain proceeding. But ... these are individuals who have rejected State offers for years, and are willing to fight. The faint-hearted sold out long ago.

We continue to tell Keys landowners that they are opposing one of the United States' most intransigent enemies of landowners -- local governments that are captives of the homevoters that elect them.

If you have not received a Voice of Reason in the past six weeks, it is likely that the Monroe County Property Appraiser does not have your current address on file. You can resolve this by calling or writing the Property Appraiser to correct your mailing address. You will then receive the next Voice of Reason in the mail. That is because we use the Property Appraiser's database to build our mailing list. (To download the March 2009 issue, click on the title of this post.)

The Florida Keys Exclusionary Zoning System Needs to be Declared Unconstitutional

2009-04-29T22:28:00.004-04:00

Professor Edward Ziegler, editor of Rathkopf's The Law of Zoning and Planning, has an article in the latest edition of The Urban Lawyer, where he makes the following observations.

Zoning almost by definition is exclusionary in nature, and this is, and has been, true even in many of America's major cities. .... Our regional problem today is that the strong arm of NIMBYism has turned the gentility of old "snob zoning" schemes into zoning schemes that perhaps can best be described as "hyper exclusion on steroids." ....

Typically, concerns about growth within a local community follow a certain political dynamic. .... NIMBYism at some point begins to dominate both the public's perception of future growth and the politics of the local planning and zoning process.

Eventually, anti-growth sentiment develops to the point where nearly everyone but the realtors' lobby has been turned into a BANANA (Build Absolutely Nothing Anywhere Near Anybody). Land use "activists" and civic-minded neighborhood organizations now emerge with the goal of promoting growth management and the "public interest" (often under the banners of "environmental protection" and "fighting urban sprawl") and pressure the city to enact increasingly intensive and burdensome zoning and growth management programs.

Sound familiar? Well, it should. Looking back over the past 25 years, we can see Professor Ziegler's "growth management nightmare" develop in the Florida Keys just as he described it. Since the early 1980's, Monroe County's elected officials have bent over backwards to play the BANANAs and NIMBYites games. First came massive downzonings in 1986, when thousands of platted subdivision lots were stripped of any right to build anything, and a 1-year moratorium was imposed on development on North Key Largo -- that is still in effect today, 22 years after that year ended!

Then, in 1992 the County, led by its since-disgraced top BANANA, Commissioner Jack London, rammed through a "Rate of Development" ordinance -- allegedly based on a hurricane evacuation infrastructure deficiency (US-1 needed to be widened) -- that was supposed to last no more than 10 years, or to 2002. Well, guess who proceeded to oppose all efforts to widen US-1 and build a new bridge over Jewfish Creek. You guessed it, the Monroe County Commission and its bosom buddies, the neighborhood NIMBY associations (who continue to steadfastly oppose anything that would improve hurricane evacuation times).

Professor Ziegler's article doesn't mention how one can remove the obstructive and value-reducing "growth management" plans put into place by the NIMBYs, BANANAs, and their elected lap-dogs. But we can suggest one. Convince a state or federal judge to follow the lead of the Massachusetts Supreme Court in Zuckerman v. Town of Hadley, 813 N.E. 2d 843 (MA 2004), and declare the Rate of Development system unconstitutional.

$4,500 Poll Tax Approved by Moron County Commissioners

2009-04-21T21:32:00.009-04:00

One wonders what goes through the feeble minds of elected officials, not to mention their sycophantic in-house counsel. Two weeks ago, I noted that the Florida Keys' elected County Commissioners were entertaining their planners' proposed fee of $4,500 for a "Beneficial Use Determination," a/k/a "BUD." Well, they weren't embarrassed in the least. They adopted said $4,500 "poll tax" on April 15, 2009.

In other jurisdictions, similar statutes and ordinances are called "taking avoidance" procedures. Many communities are justifiably concerned that their land development regulations "go too far," placing the local taxpayers in a position where they will have to pony up millions of dollars when regulations go "too far." The more enlightened communities utilize their taking avoidance ordinances to back off on overly confiscatory regulations, and save the taxpayers a ton of money. The Florida Keys $4,500 fee will just cause more litigation. It is now being used to pay planners' salaries, instead of what it was originally intended to do -- save money.

On December 1, 2007, I reported on a good example of municipal incompetence on the part of the City of Half Moon Bay, California, when it got slammed with a $36.8 million inverse condemnation judgment as "payback" for its years of staunch opposition to a residential subdivision within the city limits. Nearly a year later, I reported, also on this blog, that Half Moon Bay and the landowner had reached a settlement. The City would allow the development of the property or, if the California Coastal Commission prevented same, it would pay the landowner $18,000,000.

Monroe County is headed for serious financial trouble, whether the County Commissioners know it or not, and this latest dumb move just digs the hole deeper. Property tax rates in this community are the lowest in the State of Florida, but that will not last long with these clowns in office.

Breaking the Back of Unconstitutional Rate-of-Development Ordinances in the Florida Keys

2009-04-15T23:40:00.005-04:00

Enacted in 1992 as a "hurricane evacuation infrastructure deficiency" moratorium -- that would expire in 2002 -- every local government in the Florida Keys now has a permanent Rate-of-Development (ROD) ordinance. And those same governments have stalled, and openly opposed, the infrastructure improvements that were going to be completed by 2002. Of course, the got-miners oppose any and all infrastructure improvements, and the local governments gladly appease them. The hurricane evacuation rationale has morphed into a sewer infrastructure deficiency, a save-the-trees program, and an endangered species program, protecting endangered rats, snakes, Playboy bunny, and midget Virginia white-tailed deer (imported in the 1800's as food).

At some point these ROD ordinances must be unconstitutional as violative of Substantive Due Process. Recently, in Zuckerman v. Town of Hadley, 813 N.E. 2d 843 (Mass. 2004), the Massachusetts Supreme Court held that a ROD ordinance -- in effect for 15 years -- was no longer constitutional. Just imagine -- the Town of Hadley had done nothing to cure the "infrastructure deficiency" its ROD ordinance was supposed to alleviate. But it sure reduced development and the got-miners were quite happy.

Sound familiar? Of course. It happens all over the United States, in areas thought to be desirable by the people who live there, as well as those who would like to live there -- and can buy land there but cannot get a building permit. Once someone manages to own their piece of paradise, their highest priority becomes preventing anyone else from doing so.

For an excellent analysis of the problem, see William A. Fischel's "The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land Use Policies," Harvard Univ. Press (2001). The author is an economics professor at Dartmouth College, who previously published "Regulatory Takings: Law, Economics, and Politics," Harvard Univ. Press (1995).

Last year we filed two lawsuits challenging Florida Keys' ROD ordinances. The first one, Lightner et al. vs. Monroe County & the State of Florida, involves over 1,200 parcels of land on Big Pine and No Name Keys. The other, Evanoffs vs. the Village of Islamorada, targets that town's ROD ordinances. In the latter, the Circuit Court has agreed that the Complaint states a cause of action, and has asked the parties to schedule a trial at the earliest available opportunity. It would appear that we are on the right track.

If a $2 Poll Tax is Unconstitutional, Can a $4,500 Ripeness Fee be Constitutional?

2009-04-06T16:21:00.014-04:00

I understand charging a fee for reviewing building plans -- or to process a Conditional Use or Special Exception -- but charging a $4,500 fee to request Just Compensation? The Monroe County Commission may think this is a terrific idea. Why, just think, a $4,500 "ripeness fee" might just keep a lot of those damn, rabble-rousing landowners from asking for "money" for their regulatory taken property.

On December 31, 2008, Florida's Third District Court of Appeal, once again, explained how the Florida Keys' unusual Beneficial Use Determination (BUD) process works. See Collins, et al. v. Monroe County, et al., 999 So. 2d 709 (Fla. 3rd DCA 2008) and Shands v. City of Marathon, 999 So. 2d 718 (Fla. 3rd DCA 2008). It is also worth noting that the New Jersey Supreme Court just upheld an almost identical BUD in OFP, LLC v. State of New Jersey, 930 A.2d 442 (NJ App 2007), affirmed, 963 A.2d 810 (NJ 2008). (So we are not alone anymore.)

In 1986, the State imposed a confiscatory zoning map on the Florida Keys. It downzoned at least 5,000 platted lots, making them unbuildable. Until First English in 1987, Florida's position was that confiscatory zoning ordinances were unconstitutional on Due Process grounds. See Dade County v National Bulk Carriers, 450 So.2d 213 (Fla. 1984) (Florida did not recognize a right to monetary compensation for regulatory takings by zoning ordinances.) In 1986, the State planning agency was staring at a major Due Process lawsuit that would have taken down its ComPlan in a heartbeat.

In 1985, along came Charles Siemon. He came up with the State's first (and only) "ripening" ordinance. The 1986 BUD gave the County Commission authority to waive any land use regulation that "took" property. The 1986 language was painfully unconstitutional, as it required the landowner to first "attempt" to sell the property for 40% of its pre-regulation Fair Market Value (FMV). If that failed, and the County declined to waive its regulation(s), the County would pay the landowner 40% of the pre-regulation FMV. Judge Richard Payne struck down both provisions in a regulatory taking lawsuit we filed in 1988. The 3rd DCA affirmed. See Monroe County v. Gonzalez, 593 So.2d 1143 (Fla. 3rd DCA 1992).

In 1990, we filed another regulatory taking lawsuit, this time against the City of Key West. See Key West v Berg, 655 So. 2d 196 (Fla. 3rd DCA), rev. denied, 663 So. 2d 629 (Fla. 1995). In 1994, a new Key West ComPlan included a reference to a not-yet-adopted BUD process. Judge Richard Payne agreed Berg did not have to exhaust a not-yet-written regulation, but the 3rd DCA reversed, asking, at oral argument, "why can't you just write the City a letter?" On remand, the City settled with Mr. Berg for $3.5 million.

In 1993, the State of Florida inserted the 1994 Key West BUD language -- which the State also wrote -- into Monroe County's new ComPlan (effective 1977). The County adopted implementing regulations in 1998, and the 1998 BUD ordinance remained in effect until 2008. A new -- but much less constitutional -- BUD ordinance went into effect last year.

The law is clear that a Florida Keys landowner -- who believes their land has been subjected to a regulatory taking -- must petition for a Beneficial Use Determination before his or her taking claim is "ripe." It is equally clear that the Statute of Limitation does not begin to run on a Florida Keys regulatory taking claim until the BUD determination has been rendered. This protects the landowner who is unaware of their claim, and prevents the local government from receiving windfalls when landowners fail to exercise their right to sue for a regulatory taking. It does not protect the government from claims the BUD process has become "futile" on a case-by-case basis.

Last I looked, the right to Just Compensation for a "taking" of property is enshrined in both the U.S. and Florida Constitutions -- just as is the Right to Vote. We don't allow governments to charge a fee for exercising the right to vote -- not a dollar, nor a penny -- even though it costs the government a boatload of money to buy the voting machines, print the ballots, and staff the polling places.

In 1997, Monroe County began charging a $500 fee for processing a BUD petition. Apparently nobody complained, so the fee began to creep up, first to $750, then to $1,300. We filed about 25 petitions the day before the increase to $1,300 went into effect in 2005. Now -- as you can see from the agenda item I posted on Google Docs -- the leeches in the planning department want to increase the fee to $4,490.

For at least the past two years, we have been considering filing a lawsuit to declare the BUD unconstitutional, on several grounds, and to declare the Florida Keys' confiscatory land use regulations unconstitutional on Due Process grounds. What the State and County planners keep forgetting is the holding in Joint Ventures v. Florida DOT, 563 So. 2d 622 (Fla. 1990). In Joint Ventures, the supreme court held a legislative act that precludes all development on a parcel of land, is unconstitutional on Due Process grounds, unless the landowner has a direct avenue to condemnation proceedings. The supreme court specifically stated that the right to bring an inverse condemnation proceeding, as FDOT argued, does not suffice. In the end, the FDOT land-freezing statute was declared unconstitutional on Due Process grounds. (Note the similarity to National Bulk Carriers, above.)

None of the 5 or 6 Florida Keys' BUD ordinances provide affected landowners with a right to a condemnation proceeding. All you get is a letter in the mail that includes an offer to buy the property at a price that is about 15% of what one would receive, on average, in a condemnation proceeding. And -- if you turn down or ignore the offer, the government is content to let you rot in Hell forever. That is not Just Compensation, and it violates Due Process big time.

As they say in the advertising business, watch this space.

3rd District Court of Appeal Denied Motions to Remand Beyer, McCole, and Sutton

2009-03-25T13:31:00.003-04:00

Despite the fact that the City of Marathon agreed to the remand of Beyer v City of Marathon & the State of Florida, and the County's response to our remand motion in Sutton v. Monroe County was essentially "please make them write a Brief," the Florida 3rd District Court of Appeal denied our motions to remand Beyer, McCole v. City of Marathon, and Sutton in light of the Court's New Year's Eve decisions in Collins v. Monroe County and the State of Florida and Shands v. City of Marathon.

All three of these regulatory taking cases were dismissed on the same statute of limitation ground that was rejected by the same Court in Collins and Shands. The only opposition to our remand motions came in McCole, where the City raised an additional argument below and apparently thinks that argument might be enough to win. So, now we need to write three more Briefs, and have three more oral arguments. And the governments' private-sector lawyers will bill the taxpayers for more attorneys' fees.

Voice of Reason Sent to Every Owner of Undeveloped Tier I Property in Unincorporated Monroe County

2009-03-20T22:16:00.004-04:00

Over the next few days, copies of our latest issue of The Voice of Reason should appear in the mailboxes of every owner of undeveloped, Tier I, property in unincorporated Monroe County. Even though we put this issue together a couple of months ago, we had to get it cleared by the Florida Bar as "advertising." The Bar's reviewer took issue with our use of words like "stealing" and "thieves," when referring to the governments of Florida and Monroe County. She suggested we were accusing government of criminal activities for which they should be tried and incarcerated. It hadn't crossed my mind yet, but sounds like a good idea to me!

So we toned down the rhetoric a notch, updated the story on page 4, and uploaded it to be printed and mailed -- by first-class mail. We are working on a modified version to be mailed to the owners of all undeveloped property in Islamorada and Marathon. Fortunately, now that we have been cleared by the Florida Bar with the current issue of The Voice of Reason, we don't have to submit future issues to the Bar for vetting.

Gov't Appeals Collins Decision to Florida Supreme Court

2009-03-02T22:03:00.003-05:00

For those who are following the New Year's Eve regulatory taking decisions in Collins, et al. v Monroe County, et al., and Shands v. City of Marathon, let it be known that no stone will remain unturned. Friday, the gov't served notice that it was petitioning the Florida supreme court to review the Third DCA's Collins decision under its discretionary jurisdiction to hear whatever it takes an an interest in. These are uphill battles, but the gov't's notice suggests it has located an inconsistency between the Collins decision, and a decision of another District Court of Appeal.

The Monroe County Attorney's office requested permission, in January 2009, to file this petition for discretionary review. But I could not fathom, from its request to the County Commission, what it was relying on for its argument that the Collins decision "conflicts with the decisions of other Florida District Courts of Appeal." Perhaps the field of regulatory taking law is so far from what these gov't lawyers do on a day-to-day basis, they just don't understand the law.

Anyway, the discretionary review process is constrained by time and space limits. The gov't now has 10 days to serve its 10-page "jurisdictional brief." Then, we get 20 days (plus 5 days for mailing) to serve our response. There is no reply brief, and the gov't petitioners are limited to the words in the District Court of Appeal's opinion (no references to the record before the trial court are allowed). This is a tough one for the government.

Meanwhile, there is no automatic stay at this point. If the gov't wants the proceedings below to be stayed, it must get the District Court of Appeal to enter a stay order. Stay tuned. This is far from over.

California Decision Finding Lucas "Categorical Taking" in 30-Year Moratorium. Sounds Familiar.

2009-02-26T21:49:00.012-05:00

I downloaded the 49-page slip opinion in Monks v. City of Rancho Palos Verdes ("Monks II") after seeing it mentioned in the October 1, 2008, inversecondemnation.com blog of Hawaii land use attorney Robert H. Thomas. It came back to me this week, when it was highlighted on the front page of the December 2008 issue of Gideon Kanner's newsletter, Just Compensation, with the exclamation:

"Will miracles never cease? The California Court of Appeal held that a city's moratorium forbidding all construction, and extending over a period of some 30 years, was a taking of property."

For those of us who consider California state and federal courts' interpretations of the U.S. Constitution something to be avoided, the tide seems to be changing out there. In December 2007, in Yamagiwa v. City of Half Moon Bay, a U.S. District Judge held that the city, in imposing a series of land development regulations, and excavating nearby areas for stormwater drainage -- that converted the property into undevelopable wetlands -- had "taken" the property and was liable for $37 million in Just Compensation.

Now, in Monks v. City of Rancho Palos Verdes, 167 Cal. App. 4th 263, rev. denied, 2008 Cal. LEXIS 14670 (Cal. Dec. 17, 2008), on its second trip to the Court, an intermediate California Court of Appeal held (and the California Supreme Court declined to review) that a building moratorium that started in 1978 was a permanent, categorical taking (as in Lucas v South Carolina Coastal Council, 505 U.S. 1003 (1992)).

This is a well-analyzed opinion that uses Lucas reasoning to conclude that the City's 1978 ordinance imposing a moratorium on the construction of single-family homes in the "vicinity" where landslides had recently occurred. In the earlier trip to the appellate court, that court rejected the City's one-two defense of "it ain't ripe, and besides, the statute of limitations has run." Monks v. City of Rancho Palos Verdes (Feb. 23, 2005, nonpublished opinion B172698.) ("Monks I," quoted liberally in Monks II.)

The Monks II opinion focused on the following aspects of the Supreme Court's opinion in Lucas. The California court's synopsis can be boiled down as follows.

1. The Lucas court rejected the contention that Lucas's property retained some economically beneficial use just because he could go there to picnic, swim, camp in a tent, or live in a movable trailer. See 505 US at 1044 (Blackmun's dissent).

2. The Lucas court concluded that the findings of the state legislature were of "no import in deciding the taking issue." The Lucas court held "Any limitation so severe [as to deprive land of all economically beneficial use] cannot be mewly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."

3. "The fact that a particular use has been long engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition.... So also does the fact that other landowners, similarly situated, are permitted to continue the use denied by the claimant. ... It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on [Lucas's] land; they rarely support prohibition of the 'essential use' of land...." Lucas, 505 US at 1030-31 (majority opinion of Scalia, J.); 505 US at 1052, fn 15 , and 1052-55 (Blackmun's dissent).

4. The government bears the burden of proving that the property owner's intended use is not allowed under state law. "...to win its case South Carolina must do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim that ... 'one must so use his rights as not to infringe on the rights of others.' ... Instead, as it would be required to do if it sought to restrain Lucas in a common-law action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing." Lucas, 505 US at 1031-32.

Just to bring this home, the State of Florida or the local government would have to show that it could have enjoined the building of single-family homes -- on lots zoned for single-family homes -- in the Florida Keys, under the common law in existence before Florida became a state. No statutes or ordinances enacted after that date would be relevant. If it cannot do that, the prohibition on construction of single-family homes in the Florida Keys -- even if it is only a "moratorium" -- is a Lucas categorical taking.

We would like to also mention that the recent Florida 5th DCA decision in St Johns River Water Management District v Koontz, Case No 5D06-1116 (January 9, 2009),brought to mind the fact that, under the US Supreme Court's Nollan/Dolan decisions, forcing landowners to dedicate land to the government as part of the price of obtaining a building permit, is an unconstitutional exaction and a Fifth Amendment taking.

Wouldn't it be interesting if a group of property owners filed a class action against the County and the State, demanding that all of the ROGO lots "donated" to obtain building permits be deemed "unconstitutional exactions," and requiring the County to commence eminent domain proceedings against every one of those parcels, and to pay the "donor" the Fair Market Value of the "donated" lots. After adjusting for Condemnation Blight, of course, which would kick the Fair Market Value up to 125% of the assessed valuation of nearby, developed, residential lots.

Anyway, those are my thoughts for February 2009. Check back here or on mattsonlaw.com to see how these ideas get transformed into action.

Neither the Monroe County Commission, nor any Florida Governor, will Ever Get It

2009-01-29T00:34:00.008-05:00

Now that we have the Statutes-of-Limitation defenses behind us (Keys landowners can wait for a thousand years), and local and state governments are having problems finding two nickels to rub together, it is a good time for Keys land use lawyers to increase their "taking/due process" offensive against the State and local governments. The pair of regulatory taking opinions by the 3rd District Court of Appeal on New Year's Eve, Collins v Monroe County & the State, and Shands v Marathon, have pushed affected Keys landowners well into the finals of the liability stage in regulatory taking lawsuits.

Our pending cases include (i) the 11-plaintiff Collins case, (ii) the McCole and (iii) Beyer cases against Marathon and the State, (iv) Evanoff's vs. Islamorada & the State, (v) Sutton v Monroe County, and (vi) Lightner, et al v Monroe County & the State, a class action Taking/Due Process suit involving the confiscatory regulations on Big Pine and No Name Keys. And let's not forget our $7 million judgments against the State of Florida in State v West & Richardson, that are now on appeal at the Third DCA. (The state's initial brief is due in mid-February.)

Since 1986, the State of Florida and "Junior" (a/k/a Monroe County) have enacted so many confiscatory regulations in the Florida Keys that they make the California Coastal Commission appear pro-development! If we had not been such a miniscule part of Florida, with only 80,000 residents (read "homevoters") on a 120-mile chain of islands, big law firms would have been all over this problem 20 years ago. But, we are a miniscule mass of people. While 80% of the owners of affected properties do not live or vote here, 12 years ago that percentage was 90%. It is clear that non-resident landowners have been more willing, than locals, to trade their land for 15 cents on the dollar.

The time has come to get 100% of Fair Market Value for the remaining undeveloped properties in Playboy bunny rabbit, Key deer, and endangered rodent habitats -- so those little critters can enjoy life and pay property taxes like everyone else. And if Gideon Kanner is looking for a place where his experience can be put to the test on a constant basis, maybe he will think about spending some time in the Florida Keys.

Uppity Landowners Get Compensated for Questionable Land Use Regulations

2009-01-22T01:28:00.008-05:00

In September 2008, we reported on two "uppity landowners" who had blasted Florida Keys' municipality Islamorada at the United States 11th Circuit Court of Appeal. A few days ago, the Village of Islamorada paid the owners of Island Silver & Spice $716,ooo in damages. United States District Court Judge James Lawrence King had awarded Island Silver & Spice $600,000 in damages before the appeal was taken. The extra $116,000 was interest. The attorneys' fees are still being negotiated.

There is more (or less) to this than meets the eye. I am reliably informed that the "formula retail" ordinance invalidated in this litigation was the second ordinance adopted by the newly-formed "village" of Islamorada in 1997. I am also informed that this rather asinine ordinance was introduced by one of the principal promoters of incorporation of the miniscule municipality -- to benefit a local grocery store owner -- after said promoter was elected to the municipality's first legislative body.

This is the kind of corruption (or illegal favoritism) that too often surfaces in small-town politics. What makes this case an even worse example of corruption is that the $716,000 was paid by the Florida League of Cities' self-insurance fund -- the corrupt Village of Islamorada lost only its $25,000 deductible. If I were representing the League of Cities, I would be putting my energies into sticking the Village of Islamorada with the entire $716,000, plus attorneys' fees. The total, with attorneys' fees, has got to be in the range of a million dollars.

Key Largo residents take note. The smaller the unit of government, the smaller the brains of its elected officials. Unfortunately -- or maybe fortunately, depending on your perspective -- these self-insurance funds usually exclude inverse condemnation litigation. So you can bet your taxes will go up if your local government loses one of those.

Time's Up: Local Governments Unable to Find Legal Basis for New Judge's Reversed Decisions

2009-01-21T23:10:00.010-05:00

Six days have elapsed since the 15-day deadline ran for filing Motions for Rehearing in the Collins and Shands regulatory taking cases (January 15, 2009). Apparently neither Monroe County (Collins), nor the City of Marathon (Shands), identified errors in the Third District Court of Appeal's reversals of Judge Audlin's dismissals of these cases. The appellate court issued its mandate in Shands v City of Marathon a week ago (January 16, 2009). The mandate in Collins v Monroe County will be delayed slightly, as we filed a Motion for Clarification on January 15, 2009.

As to our Motion for Clarification, we were concerned that the Court of Appeal appeared to believe that the Florida Keys had no zoning regulations until the State imposed them on September 15, 1986. This perception comes from the Third DCA panel opinion in Monroe County v Ambrose, a vested rights case we prosecuted from 1997 to 2003. We asked the current court to correct that misperception. The Florida Keys adopted zoning regulations in 1959 -- the first year Florida's non-charter counties had the right to do so. The County's legal gnomes have until January 25, 2009, to file a response.

We note -- with a taxpayer's curiosity -- that the Monroe County Attorney's office is asking the County Commission for permission to file a Petition for Certiorari with the Florida Supreme Court -- on the condition that the County "will not bear any additional attorneys' fees" for this speculative effort. Give me a break -- if you can't come up with a reason to file a Motion for Rehearing, what makes you believe you can get the attention of the Florida Supreme Court?

We also note -- with a bit more skepticism -- that Monroe County's contract legal "geniuses" from Kansas City and Los Angeles did nothing other than obfuscate the issues in these cases -- in exchange for more than $1.5 million in legal fees. (The same can probably be said for Marathon's outside counsel.) It is amazing how local government officials convince themselves that they will manage to escape culpability from their confiscatory behavior by hiring expensive attorneys from another planet.

The Gathering Storm: What Economic Stimulus?

2009-01-11T12:53:00.004-05:00

Soon, a new President and an anxious Congress will pour another trillion dollars into tax cuts, infrastructure, highways, mass transit and new energy systems, and whatever ... to "stimulate" the U.S. economy. But most economists who have weighed in on the subject don't believe another trillion dollars will do anything to bring us out of recession. They note that the big public works projects of the 1930's did not bring the country out of the Great Depression -- it took a war in Europe to do that. And, in case anybody missed it, sending $350 million to Wall Street hasn't done anything but bail out investment bankers -- who are part of the problem, but not the solution.

Today, New York Times op-ed columnist Thomas Friedman observed "If we spend $1 trillion on a stimulus and just get better highways and bridges — and not a new Google, Apple, Intel or Microsoft — your kids will thank you for making it so much easier for them to commute to the unemployment office or mediocre jobs."

"... a bridge is just a bridge. Once it’s up, it stops stimulating. A student who normally would not be interested in science but gets stimulated by a better teacher or more exposure to a lab, or a scientist who gets the funding for new research, is potentially the next Steve Jobs or Bill Gates. They create good jobs for years. Perhaps more bridges can bail us out of a depression, but only more Bills and Steves can bail us into prosperity."

Friedman's op-ed piece makes the point that the U.S. educational system is seriously in the toilet, and particularly so in its failure to attract students and teachers into science and engineering careers. He urges the politicians to read the National Academies' 2005 report, "Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future," published in book form in 2007. Friedman goes on to say:

"Gathering Storm was the outstanding 2005 report produced by our National Academies on how to keep America competitive by vastly improving math and science education, investing in long-term research, recruiting top students from abroad and making U.S. laws the most conducive in the world for innovation. You see, even before the current financial crisis, we were already in a deep competitive hole — a long period in which too many people were making money from money, or money from flipping houses or hamburgers, and too few people were making money by making new stuff, with hard-earned science, math, biology and engineering skills."

"The financial crisis just made the hole deeper, which is why our stimulus needs to be both big and smart, both financially and educationally stimulating. It needs to be able to produce not only more shovel-ready jobs and shovel-ready workers, but more Google-ready jobs and Windows-ready and knowledge-ready workers."

Here are some quotes from the Executive Summary of The Gathering Storm.

"If you can solve the education problem, you don't have to do anything else. If you don't solve it, nothing else is going to matter all that much." former Federal Reserve Chair Alan Greenspan.

"We go where the smart people are. Now our business operations are two-thirds in the U.S. and one-third overseas. But that ratio will flip over the next ten years." Intel Corporation spokesman Howard High.

"If we don't step up to the challenge of finding and supporting the best teachers, we'll undermine everything else we are trying to do to improve our schools." Louis Gerstner, former Chairman, IBM.

"When I compare our high schools to what I see when I'm traveling abroad, I am terrified for our workforce of tomorrow." Bill Gates, Microsoft.

You can download a pdf copy of Rising Above the Gathering Storm, for free, on the National Academy of Science's website. Read it ... but you may be frightened by what you learn.

Keys Commissioners in Denial

2009-01-09T20:42:00.005-05:00

A Monroe County commissioner revealed the County's response to the Collins decision in a radio interview today. They plan to file a petition for review by the Florida supreme court -- no surprise there. But as Florida's District Courts of Appeal are intended to be the courts of last resort, the chance the supreme court will review the Third DCA's decision is zero. Florida's highest court reviews decisions that are (1) certified by a District Court of Appeal as being "in conflict" with another District Court's decision, or (2) certified as a question of "great public importance." (A petition for discretionary review, even by a government entity, does not trigger an automatic stay of the District Court's mandate, though government appeals to the District Courts of Appeal get an automatic stay.)

Option one -- conflict -- is not in play because the Florida Keys' Beneficial Use Determination process only exists in one Florida County -- so no inter-District conflict will ever arise. Option two -- "great public importance" -- is unlikely as well. First, the District Court panel did not use that language in their opinion -- and only the District Court judges can make that call, not the litigants. Second, what makes anyone with a brain think that a confiscatory local government's desire to acquire land for 15 cents on the dollar is of such "great public importance" that it should be continued? It's time to bring this charade to an end.

No word yet on what the City of Marathon plans to do in the Shands case, but Marathon does not have in-house, salaried attorneys as Monroe County does, so a petition for discretionary review would be a bit more expensive. We assume the County will finally terminate its outside counsel from Kansas City, after paying them at least $1.5 million to get to this point.

A skeptic might say that seeking discretionary review by the supreme court just adds to the time it takes for each plaintiff to get paid. Or that it is just a government ploy, hoping that fair market values (which they abhor anyway) might decrease in the interim. But the government owes these plaintiffs rent on their properties, at 10% of their fair market values (appraised assuming that they were buildable on demand) on the date of their Beneficial Use Determination application, and on each anniversary of that date, plus interest, until the government either takes title to the property by eminent domain. At which time it will also have to pay the fair market value as of the date of trial. This is called "rent-to-buy." So the bill keeps going up during these delays.

Bernie Madoff managed to steal $50 billion, for which we all must give him credit -- though it was all quite illegal. His "marks" probably knew something illegal had to be going on, but why worry as long as the checks kept coming? Monroe County and its co-conspirators in State government have been fleecing innocent landowners for more than 15 years, adopting confiscatory regulations that prevent people from using their property -- ostensibly under the banner of the local government. Then, the State government shows up on the doorstep and offers 15 cents on the dollar for your "unbuildable" property. What is this? A "good cop" -- "bad cop" con?

The only aspect of this government con game that is of "great public importance" is stopping the government from stealing innocent landowners' property. If the Collins plaintiffs -- the screwees -- had lost this case at the Third District Court of Appeal, then there might be an issue of "great public importance." As it is, our local "Bernies" deserve their fate.

Monroe County Planners Conspire with County Commission to Strip Vested Rights Decision from Key Largo Landowner; Judge Buys It

2009-01-05T01:44:00.003-05:00

The Florida Keys had a gut-wrenching change in land use regulations 22 years ago (Sept. 15, 1986, to be precise; and yes, I was here). As part of the 1986 ComPlan, two "safety valve" ordinances were put in place -- the Beneficial Use Determination ordinance you have read about on this blog and on my website. The other, a Vested Rights Determination, you have not. That's because the Vested Rights process had a one-year deadline for applications while the BUD process is available forever.

In 1987, the managers and owners of the Ocean Reef Club, ("the Reef)" an exclusive resort community at the north end of Key Largo, filed a Vested Rights application on behalf of the corporation, the club, and all the owners of land within the Club's (rather large) boundaries. The County appointed John Bigler, a Key West attorney, as Special Master to conduct a hearing on the application. Fred Tittle, who later became of counsel to Mattson & Tobin, represented the Reef. County Attorney Randy Ludacer represented the County. (My, those were the days, weren't they, when the County Attorney actually did some work instead of farming it out to $450/hour private attorneys.)

As in all administrative proceedings, a hearing was eventually held. Tittle and Ludacer went into executive session and carved out a deal. (In law school they called this "negotiating.") Tittle and Ludacer eventually returned to Mr. Bigler's hearing. They presented their done deal; there was some testimony by The Reef's manager; the deal was approved; and the County Commission approved Mr. Bigler's Recommended Order vesting everything on the planning horizon.

Fast forward 10 years. In 1996-97, the Florida Dept. of Community Affairs rammed a set of confiscatory wetland regulations down the County Commission's throats. "Adopt these or prepare for boarding" is what I understand the DCA said. (Although I knew that some of those DCA people were actually human; I also knew that some were decidedly evil.) These new rules included a novel concept; "red-flag" and "green-flag" wetlands were about to be identified (by aerial surveys using drunken pilots flying upside-down). Now, it made no difference to these folks that neither the US Army Corps of Engineers nor the Florida Dept. of Environmental Protection (FDEP) gave a whit about these red-and-green flag wetlands. They were going to SAVE THE KEYS. (Seems to me the Keys needed to be rescued from these lunatics.)

Fast forward another 10 years, to 2008. Now we're litigating that nice, cordial vested rights deal the County cut with the Reef in 1988 -- saving the County a huge legal bill at the time. Our client happens to have been one of the landowners covered by the 1988 Vested Rights order. But the drunken pilots discovered a patch of "caprock wetlands" on her property (which had been legally dredged and partially filled decades ago), and County "growth prevention" personnel told her she could not build anything on her $1 million lot.

OK, she said, who is going to pay me? So Andy Tobin took her through the Beneficial Use Determination process, where a landowner either gets paid, gets a permit, or gets the right to sue (See the Collins v Monroe County blog entry dated 12/31/08.) Instead of one-of-the-above, she was "granted" a reduction in bulk setbacks (that conflict with the Reef's setbacks), but told to "forget it."

So, can you imagine our chagrin when the County "planning staff" (read: "thieves") put language into our client's "beneficial use determination" resolution that purports to alter the Reef's 1988 Vested Rights order. Though the BUD ordinance spells out what the County Commission's choices are, they cannot help themselves from overreaching.

This case is now on appeal to the Florida Third District Court of Appeal, with oral argument set for January 13, 2009. One has to work very hard to stay ahead of the crooks in this business. At least Bernie Madoff only took people's money. Wish us luck.

The Role of the Unions in the Latest Economic Disaster

2009-01-03T23:14:00.005-05:00

There is a link to "The Becker-Posner Blog" on my list of favorite blogs. Gary Becker won the 1992 Nobel Prize in Economics, and Richard Posner has been a judge on the United States 7th Circuit Court of Appeal since 1981. The two co-write a blog that addresses the US economy from their legal and economic points of view.

Their latest blog entry (click on the title of this post) addresses the problems facing GM, Chrysler, and Ford, in their attempts to remain viable companies while being saddled with the problems created by the United Auto Workers. As one who left Michigan in 1969, at age 24, I relate to the permeating effects of the UAW on the Big Three automakers in Michigan's economy.

As Judge Posner observes, the collaborative efforts of the Big Three and the UAW over several decades have placed the car companies in an untenable position vis-a-vis the union. For 30 years, the offshore car companies have built plants in the American South, with the cooperation of those State's legislatures, from which they have been eating the Big Three's lunch. Unless something dramatic happens -- and soon -- we will be witnessing the failure of all three domestic car companies (and the $15-$20 billion the Feds are giving to them). The Big Three have to ring the bankruptcy bell and shed their UAW blanket -- rather than allow Asia to take over America's auto sales. Just as the airlines did after 9/11, the car companies need to reorganize and shed their UAW contracts.

Note added January 4, 2009. There is an opinion piece, on pp. 9-10 of the Week in Review section, in today's New York Times titled "The End of the Financial World as we Know it." It does a nice job of deconstructing the ongoing bailout of investment banks that are "too big to fail," arguing that the Feds are just pouring that money down the drain. It's well worth reading, and the New York Times website allows you to read it for free.

Protecting Non-Voting Property Owners from the Tyranny of the Majority

2009-01-02T20:57:00.005-05:00

Today I learned that one of our Florida Keys "regulatory taking" plaintiffs is the subject of animosity from some of his fellow landowners who own homes on developed land. His "friends" believe this gentleman is trying to bankrupt Monroe County with his regulatory taking claim. I would point out that our client's "fellow landowners" are responsible for the election of our County Commission, as 70% of the owners of undeveloped Keys land are not registered to vote in Monroe County.

The drafters of the United States Constitution feared, more than anything else, the "tyranny of the majority" that can be launched by the majority of voters -- or in some instances one judge -- against a minority of voters. It was for that reason that the Bill of Rights was adopted by the first U.S. Congress and all of the States. None of the first 10 amendments to the U.S. Constitution protect the rights of government -- they are intended to protect the rights of the minority against the evil doings of the majority.

Monroe County suffers from a number of parochial failings, including the "got-miner" mentality of a majority of its voters (and their lackeys, the County Commissioners). Over the past 20 years, Keys got-miners have used the ballot box to halt the construction of homes and businesses by the non-voting minority landowners. This is wrong -- in fact, this is sick. Our clients have turned to that 1789 document, called the United States Constitution, to correct this wrong -- and their unaffected neighbors are pissed as hell. We and our clients are not trying to bankrupt the County. Even if we were, the County cannot declare bankruptcy to avoid paying Just Compensation to our clients.

Non-charter Florida counties have no bankruptcy avenue to take. Non-charter counties -- including Monroe County -- have no corporate existence; they are merely lines on a map. They cannot absolve their debts by filing for bankruptcy; in fact they cannot file for bankruptcy, period.

What can happen -- and now likely will happen -- is that Monroe County's Commissioners will be replaced by a board of accountants named by the Governor -- just as happened in Miami several years ago, and the accountant board will raise property taxes to the maximum allowed by the Florida Constitution (10 mills). That is four times the current property tax rate of about 2.5 mills.

For you got-miners who are listening, let us assume you now pay $4,000 per year in property taxes. One-half of that sum goes to the School Board, so you are only paying $2,000 to the County. The County's tax assessment runs about 2.5 mills, the lowest rate in the State of Florida, lower even than Palm Beach or Collier Counties. The Florida Constitution limits local government taxes (outside of municipalities) to 10 mills. So your County ad valorem tax could jump a factor of 4 until it hits the Constitutional maximum, or $8,000 per year. Add back the $2,000 school tax, and your tax bill has just gone from $4,000/year to $10,000/year. But just think, that vacant lot next door will never be developed, and it will only cost you $6,000/year to keep it that way. (One way or another, we are forced to pay for getting our wishes granted.)

It is unlikely that increasing all Monroe County tax bills by a factor of four will compensate all of the landowners (70% non-voting) for the regulatory taking of their land, but at that point the State of Florida will be on the hook for the difference. There will be no County bankruptcy filing under any circumstances. The developed-property owners will get nailed with several years of maximum tax bills, and the State will cough up the rest of the money. Our clients, most of whom are well into their senior years, will quietly laugh all the way to the bank (if they can find one, that is).

Collins and Shands Regulatory Taking Decisions Reversed by Third DCA

2008-12-31T11:47:00.006-05:00

The Third District Court of Appeal released its REVERSALS of Circuit Judge Audlin's dismissals of Collins, et al., v Monroe County & The State of Florida, and Shands v. City of Marathon, on New Year's Eve -- six months after oral argument. And the opinion is signed by District Judge Suarez -- not Chief Judge Gersten -- so I got that part wrong.

You can read the opinions by clicking on their captions in the previous sentence. You can also view them on the Court's website by clicking on the title of this post. The Collins case number is 3D07-1603; Shands is case number 3D07-3288.

After extensive hearings before Chief Judge Richard Payne after the Collins case was filed in late 2004 -- all favorable to the landowners -- his successor, David Audlin, made it very clear that he was going to get rid of our regulatory taking cases any way he could. He did just that by declaring that the 11 Collins landowners had not sued within four years of the effective dates of the County's confiscatory ordinances. Rescinding Judge Payne's rulings in the landowners' favor -- without even the merest request to do so from the defendants -- Judge Audlin ruled that the County's unique Beneficial Use Determination ("BUD") process did not "ripen" an as-applied taking claim. Following this train of thought, he ruled that the Plaintiffs had not filed their taking claims within the four-year statute of limitation.

On appeal, government counsel (including the County's multi-million dollar lawyers from Kansas City) argued that the BUD process was a meaningless exercise -- despite the fact that this same Court of Appeal had ruled otherwise in one of our earlier cases, Key West v Berg, 655 So. 2d 196 (Fla 3d DCA 1995), and despite the fact that Michael Berg, counsel in the companion Shands case (argued back-to-back with Collins), had successfully convinced the Third DCA in Key West v Berg that a landowner had to go through the BUD process to ripen a regulatory taking claim.

Given their propensity for obfuscation and delay, I guarantee government counsel will move for rehearings in both Collins and Shands -- without success -- and will seek discretionary review by the Florida Supreme Court -- which will be denied, in part because the Third DCA's opinions in these cases only affect a single Florida County. So we probably will not be back in the trial court for another six months.

Note added 1/1/09: Judge Suarez' opinions in Collins and Shands suffer slightly from some irrelevant dicta (dicta = statements made by the court that are not based upon the record, nor necessary to the decision in which they appear), perhaps intended to reduce the impact of his opinions on Monroe County's psyche. In particular, we note Judge Suarez' dicta that there were no zoning ordinances in Monroe County before 1986, leading to his suggestion that, just maybe, some landowners who bought before 1986 may have no investment backed expectations. Not only are these remarks outside the record, but they assume an incorrect premise. Monroe County's first formal zoning regulations were adopted on December 8, 1959, and became effective January 4, 1960. Prior to that, there were recorded, platted subdivisions that established residential land use densities as early as the 1920's. While there are times when dicta can be helpful, dicta based on erroneous assumptions are not helpful. We will probably bring this matter before the Court before the opinions become final.

Once the Third DCA denies the governments' motions for rehearing, the Collins and Shands decisions become final. At that point, we expect the Court will remand the Sutton v Monroe County, McCole v Marathon, and Beyer v Marathon cases to the trial court -- as they all suffer from the same wrong logic as Collins and Shands. McCole and Beyer are Audlin dismissals, and were expected. Sutton was dismissed by Judge Garcia, much to our surprise and dismay. There are also some housecleaning issues we need to take care of when these cases come back to the trial courts. Happy New Year, Everyone!

The Latest Voice of Reason is Online

2008-12-13T19:35:00.009-05:00

You can download the latest issue of our newsletter, The Voice of Reason, today. We mailed thousands of newsletters in the 90's when we were challenging the 1996 Florida Keys Comprehensive Plan. We didn't like it then and we don't like it today, so we decided to resume publishing a newsletter.

There was a reason the drafters of the United States Constitution wanted a bill of individual rights in 1789. The first 10 Amendments -- the Bill of Rights -- were intended to protect the minority from the tyranny of the majority. Majority rule was presumed to lead to problems, and Alexander Hamilton and James Madison wrote extensively on the issue. Read The Federalist Papers, particularly Federalist 9 (Hamilton) and 10 (Madison), on "faction."

In the current issue of The Voice of Reason, we offer to create a web-based database that will reveal the governments' below fair-market-value offers for unbuildable property. Currently those offers are government "secrets," and nobody can obtain copies of these offers with public document requests. But nothing stops landowners from making their offers public.

Now we need to develop a strategy retroactively obtain supplemental compensation for former landowners who were paid only a fraction of what their property was worth. This may perturb homevoters and planners, but there is nothing in the Constitution that protects the government from such claims.

Big Three Bailout Drafters Stymied by 5th Amendment Taking Clause

2008-12-12T01:46:00.004-05:00

Though the Big Three "Bailout" bill is apparently history, yesterday's Wall Street Journal ran a fascinating story on Capitol Hill's legislative drafting geniuses, who tried to move a bill that ignored the Fifth Amendment's "Taking" Clause. Here is the gist of the story.

Controversy erupted after a draft bill Monday stated plainly that the government loans would be "senior and prior to all obligations, liabilities, and debts of any such holding company or company that controls a majority stake in the eligible automobile manufacturer."

Loans backing Ford Motor Co. and General Motors Corp. slumped Wednesday amid concerns that the auto makers' existing senior secured loans could be subordinated to federal loans ....

"It really sounds like a clear violation of the taking clause of the Constitution, to put the government ahead of all the other lenders. To go this route is a treacherous path riddled with all sorts of constitutional issues," said Don Workman ....

The WSJ article correctly pointed out that the priority this language would have given the government "lender" was equal to the status of a DIP, or "debtor-in-possession" lender. In a Chapter 11 proceeding, the debtor submits itself to the oversight of the US Bankruptcy Court, establishes that its debts exceed its assets, and asks the Bankruptcy Judge to approve a DIP loan that will have super-priority status. By then, the debtor (failed company) has established, to the Court's satisfaction, the fact that the debtor's unsecured lenders, shareholders, bondholders, and to some extent the secured shareholders, have no chance of repayment -- unless the DIP can pull this business out of the ashes and turn it back into a profitable enterprise.

Then the DIP loan is approved and the debtor can buy raw materials, pay its workers, and ship product to its customers. Nobody would be a DIP lender unless their priority exceeded the debtor's former debt-holders' priority. What these Capitol Hill drafters were trying to do was to skip over the bankruptcy filing niceties, and establish the United States as the DIP loaner. According to the WSJ article, it is not clear that these drafters understood what they were doing. It is equally unclear why the car companies need Congress help to do what they should do: get rid of the non-working drones, shut down the non-functioning facilities, identify a niche where they can deal and make a profit.

The WSJ article notes that the drafting staff came up with some new language, but that nobody was ready to embrace their second effort. What is clear is that 40+ members of the Senate were not buying into this "prepackaged bankruptcy" deal, and would rather let the companies go through the usual bankruptcy process -- if that turns out to be necessary.

Monroe County Commission Warned State Loss in Condemnation Blight Cases Poses Major $$ Problem

2008-12-11T23:41:00.007-05:00

On the Monroe County Commission's agenda for December 17, 2008, is a request from the County Attorney's office for permission to file an amicus curiae brief in the State's appeal of the $6.9 million (plus costs, post-judgment interest at 11%, and attorneys fees) West & Richardson Condemnation Blight judgments. To quote from the request:

On April 9, 2008 - prior to the jury trial on compensation - the trial court entered an "Order Granting Defendants' Motion In Limine on the Issue of Condemnation Blight." The property owners contended that precondemnation actions of the State and County blighted the property by preventing all, or substantially all, beneficial use of the property. The Order prohibited the parties from presenting any evidence regarding the effect of any County or State regulation promulgated, enacted or amended after February 8, 1982. The Order required that the jury be instructed to determine the Fair Market Value of each parcel as of the de jure takings in Spring 2004, according to the highest and best uses they would have had on February 8, 1982.

On October 8, 2008, the trial court entered final judgments awarding just compensation totaling $6,877,257 (plus costs and attorneys' fees). On October 30, 2008, the State of Florida filed Notices of Appeal of the two final judgments. This matter is of great importance to the County because the appellate court's decision will potentially set precedent applicable to the inverse condemnation actions currently pending against the County. In some of those actions, plaintiffs have similarly asserted theories of condemnation blight. The acceptance or rejection of those theories will impact how property is valued for purposes of determining just compensation awards, and either increase or decrease the County's liability exposure.

Other than having an incorrect date for the Condemnation Blight Order (it was April 9, 2007, not 2008), and omitting the fact that the judgments are earning 11% interest per year, we agree that the County could be in deep trouble here -- but so is the State.

Chief Judge David Gersten Breathes New Life into Property Rights in South Florida

2008-12-11T21:37:00.003-05:00

Third District Court of Appeal Chief Judge David M. Gersten, appointed in 1989 by Governor Martinez, has given us few hints of his judicial philosophy. Apparently, the judges are assigned to the same number of panels (about 750) each year. But, as of mid-2008, Judge Gersten had averaged 11 signed opinions/year since he was appointed. Compare this to Senior Judge Alan Schwartz, who has averaged 45/year for 30 years, or to Judge Cortinas, who has been on the bench only three years, but has signed 46 opinions/year.

Two months ago, in CNL Resort Hotel v City of Doral, 991 So.2d 417, Chief Judge Gersten turned a lot of South Florida lawyers' heads in a remarkable decision. On the surface, the issue seemed pretty simple ... whether a property owner can challenge a comprehensive plan on the basis that it fails to protect [the owner's] property rights. Even the Florida Department of Community Affairs agreed that the property owner had a legitimate gripe. But the City of Doral and the ALJ disagreed.

Judge Gersten (with the apparent agreement of Judges Shepherd and Rothenberg), simply buried the ALJ -- and the City of Doral's lawyers -- with the following exposition on property rights.

Private property rights have long been viewed as sacrosanct and fundamentally immune from government interference. The strong tradition of protecting private property rights against governmental interference stems back to both English common law and Lockean philosophy. Lockean philosophy emphasized that property rights are a natural, pre-political attribute of human beings. See James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 10 (2d ed. 1998).

Thus, it was only natural that our constitutional founders would safeguard property from governmental intervention. Our founders drafted the Fifth Amendment of the United States Constitution to provide that no person shall have property “taken for public use, without just compensation.” See U.S. Const. Amend. V. The Fifth Amendment, Takings Clause, is made applicable to the states through the Fourteenth Amendment. See U.S. Const. Amend. XIV. Florida’s state constitution also provides that “no private property shall be taken except for a public purpose and with full compensation.” See Art. X, §6, Fla. Const.

Florida further protects these sacrosanct private property rights when evaluating a comprehensive development plan. Florida zoning law requires that a governmental agency, such as the City, adopt a plan that coordinates with the state’s plan. See §163.3177(6)(h), Fla. Stat. (2006). Florida’s State Comprehensive Plan provides that “Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action.” See §187.201(14)(a), Fla. Stat. (2006). Further, the goals and policies contained in the State Comprehensive Plan shall be reasonably applied where they are economically and environmentally feasible, not contrary to the public interest, and consistent with the protection of private property rights. See §187.101, Fla. Stat. (2006).

Without belaboring the point, Judge Gersten's opinion concludes that CNL had every right to challenge a Comprehensive Plan that did not consider its impacts on CNL's property rights (i.e., property value). If that isn't a major breakthrough in this day of planning "for the sake of planners" -- and damn the landowners who get in their way -- nothing is.

I confess that I did not feel positively about Judge Gersten when he joined the other two members of the panel (Levy and Goderich, JJ) in Monroe County v. Ambrose, et al., 866 So. 2d 707 (Fla. 3d DCA 2003), a 500+ plaintiff suit to establish statutory vested rights to build on platted lots in the Florida Keys. I was then, and remain, firmly of the opinion that this was part of a legitimate compromise made by the Florida Senate in 1972 when it adopted the Area of Critical State Concern statute, for the simple reason that no State Senator wanted part of his jurisdiction to be subjected to a State takeover of local zoning laws. It helped that a well-preserved legislative history conclusively proved our point. In Ambrose, Judges Gersten, Levy, and Goderich simply re-wrote the law the way they wanted it to be. Maybe they thought it would be too disruptive to overturn the "Save the Keys" applecart after 20 years of State tyranny, but I still believe their decision was wrong.

Now, if we could just get Judge Gersten to write faster. It took 385 days after oral argument, for this non-final order appeal to be decided. Presumably, there was even a longer delay in the administrative ComPlan proceedings below. The Ambrose per curiam decision was written in 308 days. Wars have been started, and won or lost; babies are conceived, born, and in bassinettes; or you can get an MBA; in 385 days. 385 days is just too long to wait for an eight-page opinion (especially when it's an appeal from a non-final order).

P.S. I admit that being on 750 panels/year -- that's 15/week, or 3/day if you get 2 weeks of vacation -- would drive most people crazy.

Condemnation Blight in the Florida Keys

2008-12-10T01:01:00.016-05:00

From 1979 to 1986, the State of Florida forced a confiscatory land use regime on the landowners of the Florida Keys, through its woebegone facilitators, the Monroe County Commission. One of Governor Graham's targets, sure to pick up votes for his senatorial campaign, was the area between Jewfish Creek and the Ocean Reef Club. This area, known as North Key Largo, had been the locus of pre-development activities since the mid-1970's. Interest had picked up as the water and electricity utilities announced their intentions to serve North Key Largo. And Fritz Scharenberg, a successful Key Biscayne developer, announced his intentions to build a 2,500 unit development, called Port Bougainville, at the southern end of North Key Largo.

From the mid-1970's through 1983, Fritz Scharenberg received all the necessary development approvals for his project, and another half-dozen major developments had entered the development approval pipeline. Lawsuits were filed by environmental opponents, and the State of Florida placed its heavy thumb on the scale by demanding the County Commission adopt a "major development moratorium" -- which it did on February 9, 1983 -- precluding indefinitely any development approvals that involved more than five acres or 50 dwelling units. The alternative offered to the County Commission, was that the Florida Department of Community Affairs (its current name) would adopt the moratorium under the supervisory powers granted to it by the 1972 Legislature under the guise of protecting "Areas of Critical State Concern." (The State Legislature had so designated the Florida Keys in 1979.)

The February 9, 1983 moratorium was extended several times until it was replaced by a "one-year" moratorium on September 15, 1986. The 1986 moratorium was "intended" to allow the development of a Habitat Conservation Plan (HCP) for North Key Largo, said HCP to be completed within 6 months of September 15, 1986. The HCP was never approved by Monroe County -- and was actively opposed by state agencies anxious to keep the moratorium in place -- and the moratorium is still in place as I write this post, more than 21 years after it was to expire.

During the past 22 years, most North Key Largo landowners capitulated and sold their property to the state for 10 to 15 cents on the dollar. (I mean what it would have been worth if the County-State moratorium had not been in effect.) There were a few hard-shelled landowners who said "no" to every offer that came their way. Eventually the State had to commence eminent domain proceedings to get the curmudgeons out of the way.

In 1995, the State filed a "slow-take" condemnation action against two North Key Largo parcels. The first thing we did was file a counterclaim in inverse condemnation (since slow-takes can be abandoned by the condemnor), that also raised the Condemnation Blight issue. Fortunately, the real estate market went crazy in 2001. After watching those numbers for some time, the State converted its slow-take claims into "quick-takes" in 2004. When that happened, we asked the Court to rule on the Condemnation Blight issue we had raised in 1996.

That took three hearings and the testimony of two County Commissioners from the 1982-88 era. The Court agreed that North Key Largo was blighted, and ordered the parties to prepare appraisals that disregarded all land use regulations (State, County, and Federal) that were adopted after February 8, 1983.

The case finally went to trial in April 2007 and, given the Court's Condemnation Blight instructions, yielded verdicts that far exceeded the "good-faith" deposits of $550,000 for Parcel 1 and $80,000 for Parcel 7. The jury returned verdicts of $5,060,000 on Parcel 1 and $450,000 on Parcel 7. The State appealed both final judgments on October 30, 2008.

At the top of this blog entry is a miniature version of the convincing piece of evidence in the Condemnation Blight hearings. That chart, showing that private property transactions ended, and government ownership took off like a rocket, simultaneously, in 1982-84. This is the kind of evidence it takes to establish Condemnation Blight. And it is relatively easy to cull from the county property appraiser's database.

Government "intentions" don't matter. What the market does, matters. Our win in the West-Richardson case has been appealed, and we hope to come out of this with a written opinion from the Florida 3rd District Court of Appeal. There are another 3,500 owners of 7,500 parcels of land in the Florida Keys who will benefit from this decision.

No Decisions Yet in Collins or Shands

2008-12-03T10:41:00.012-05:00

It's been 22 weeks since the oral arguments in the regulatory taking lawsuits Collins v Monroe County & the State of Florida (11 plaintiffs), and Shands v the City of Marathon. No "substantial" [my adjective] opinions in civil appeals were released today. Only three civil opinions were released, and they were certiorari decisions -- appeals from non-final orders that are usually decided quickly. The Collins and Shands cases are appeals from final judgments -- which take much longer to decide. For the past three months it has taken 111 days (16 weeks) after oral argument -- on average -- for the 3rd DCA to release "substantial" civil opinions. But 25% of those opinions took from 112 to 519 days.

I think there is a high probability that Chief Judge Gersten is writing the Collins and Shands opinions. Two of the three longest gestation times for opinions released the past three months (385 and 427 days) were opinions signed by Judge Gersten -- Levin v. Lang and CNL Resort Hotel v City of Doral. Compared to the District Court's current 111-day average release time, Judge Gersten's opinions take longer to see daylight. His average release times in the past three years are 129 days after oral argument when affirming, and 169 days when reversing. Today is the 156th day since the oral arguments in Collins and Shands.

We filed two more regulatory taking appeals last month, McCole and Beyer (vs the City of Marathon), and both were dismissed by Judge Audlin on Statute of Limitation grounds. A third will be filed as soon as a Final Judgment is signed by Judge Garcia (Sutton v Monroe County). Judge Garcia's decision is based on the same flawed reasoning that Judge Audlin applied in Collins, Shands, McCole, and Beyer.

For more information on these appeals, click on "Takings Appeals under "Labels" in the left-hand margin. Unless special circumstances exist, the Third DCA releases its decisions on Wednesdays by 10:45 AM. Clicking on the title of this post will take you to the Third DCA's website.

Update: December 10, 2008. No decision today either.

Does Laches Bar Prosecution of Code Violation 24 Years after Gov't has Knowledge of Non-Life Threatening Infraction?

2008-11-18T10:42:00.008-05:00

In 2001, Sandra Carter bought a modest single-family, stilt house in the Florida Keys -- built in 1976 -- for $116,000. The house came with a history that is on its way to becoming an enigma. There is an enclosed area on the ground floor (below base flood elevation) that, according to Monroe County, violates the local floodplain ordinance. On June 8, 2007, Code Enforcement cited her on six counts, including using the enclosed space for habitation, using the space (for anything?), and turning her single-family home into a duplex. Though her attorney raised laches as a defense, the hearing officer concluded that Ms. Carter must have known the structure was illegal because she "had worked as a realtor in Monroe County." She was ordered to cease, desist, obtain an after-the-fact permit (which they won't give her), or demolish "as directed."

What Ms. Carter "knew" seems a a stretch. If a drug dealer knew he was committing a crime, does his knowledge toll the statute of limitation? I don't think so. And, for those who do not live in flood-prone areas, these enclosed areas have always been allowed in the Florida Keys (with a building permit). What is not allowed is renting them out as apartments (or even allowing the grandchildren to sleep there). The standard FEMA flood insurance policy even insures freezers, water heaters, air conditioners, washers and dryers in such enclosures.

Ms. Carter appealed, again raising laches as a defense. The Circuit Court noted that the "illegal" enclosure has been on the Property Appraiser's records since at least 1983, and probably since the late 1970's. But Code Enforcement's citation omitted the date the "illegal" space was enclosed (i.e., heinous crime committed). On that technical detail, the Court reversed the hearing officer's order. In its September 29, 2008 opinion, the Court also stated:

"... the date of the offense has created an enforcement situation where the County is belatedly taking action against a property owner, at least twenty-four years after the violation was apparently known to the County. Under these circumstances, it is entirely possible that the doctrine of laches would properly preclude such a belated enforcement."

Kudos to Ms. Carter's attorney, Lee R. Rohe, for a job well done. Now he needs to follow though with the Third District Court of Appeal, and get a nice, precedential written opinion.

Local Judges Dismiss Three Regulatory Taking Cases on Statute of Limitations Grounds

2008-11-14T19:17:00.022-05:00

As we predicted a year ago -- in an October 12, 2007 post -- 16th Circuit Judge Audlin dismissed Beyer v City of Marathon & the State of Florida and McCole v City of Marathon & the State of Florida, for failing to sue within 4 years of enactment of the confiscatory ordinances. He reached this conclusion -- unless he doesn't read, or can't understand, the case law we provide him, or he just doesn't care -- fully aware that Keys landowners have to ripen their taking claims by applying for -- and obtaining -- a final decision via the "Beneficial Use Determination" procedure, or by filing a building permit application, waiting 4 years, and then asking for "Administrative Relief." And that the Statute of Limitations does not start to run until the administrative proceeding has concluded. [The 4-year wait in the permit queue is a dead giveaway.]

We filed Notices of Appeal in McCole on November 5, 2008 (3rd DCA Case No 3D08-2841), and Beyer on November 12, 2008 (3rd DCA Case No 3D08-2864). In an ideal world, both appeals will be mooted by the Third DCA's reversal of Judge Audlin in Collins.

As I noted in a post eight months ago -- March 16, 2008 -- 16th Circuit Judge Garcia also dismissed a regulatory taking claim -- in Sutton v Monroe County. We amended that complaint to state a cause of action for a due process taking. Ultimately we believed it was unnecessary to go through a Due Process trial when the dismissal of her regulatory taking claim is likely to be reversed by the District Court of Appeal. We recently dismissed the due process count, and Judge Garcia will be entering a Final Judgment, giving us a "hat trick" to take up to the 3rd DCA.

Half Moon Bay Revisited

2008-11-12T19:03:00.004-05:00

In a post last December 1, I reported the $37 million judgment awarded to the owner of 24 acres of oceanfront land in Half Moon Bay, California -- 18 miles south-southwest of San Francisco Int'l Airport. In Yamagiwa v. City of Half Moon Bay, a U.S. District Judge held that the city, in imposing a series of land development regulations, and excavating nearby areas for stormwater drainage -- that converted the property into undevelopable wetlands -- had "taken" the property and was liable for $37 million in Just Compensation.

In his March 2008 newsletter, Just Compensation, Gideon Kanner noted that the parties had settled. In that agreement, the city will either allow the landowner to develop the property for residential use. If it fails in that endeavor (presumably a euphemism for the California Coastal Commission's lead feet) the city will have to pay the owner $18,000,000.

Monroe County and the State of Florida will please take note of this interesting "development," and think hard about whether they want to keep on heading for the same treatment.

Big Pine Key - No Name Key Class Action "Taking" Lawsuit

2008-11-08T08:02:00.009-05:00

On September 26, 2008, we served Monroe County and the State of Florida with an Amended Complaint in a class action "taking" lawsuit brought by eight owners of 27 undeveloped Tier I properties on Big Pine and No Name Keys. (Estate of Lightner, et al., v Monroe County & the State of Florida, Case No. CA-K-07-280, assigned to Circuit Judge Mark Jones.) You can view or download the Amended Complaint by clicking here or on the title of this post. In July '08, there were about 1,279 to 1,310 privately-owned, undeveloped parcels of land designated Tier I -- and 438 designated Tier II -- on Big Pine and No Name Keys. According to the 2005 County/State Habitat Conservation Plan (HCP), 99.3% of the Tier I parcels on Big Pine and No Name Keys are absolutely unbuildable. (The nine theoretically "buildable" parcels are a fiction intended to inhibit the filing of this lawsuit, and that is a blog post for another day.)

Estate of Lightner seeks two forms of relief from confiscatory regulations, under both the Florida and United States Constitutions. Counts I (US Const.) and II (Florida Const.) are Substantive Due Process counts for declaratory judgments holding the tier system, the HCP, the acquisition of an incidental take permit from the USF&WS, and numerous ordinances and comprehensive plan provisions, invalid as unconstitutional "no-use" zoning. Counts III (US Const) and IV (Florida Const.) are claims for Just Compensation for the regulatory "taking" of the class properties.

According to the HCP, there are 2,214 privately-owned, undeveloped parcels within 500 meters of Lower Keys marsh rabbit (a/k/a "bunny rabbit") habitat on Big Pine and No Name Keys, including 1,535 in Tier I, 510 in Tier II, and 167 in Tier III. Although some of those parcels have been purchased -- at well below fair market value -- by government, most of those 2,214 parcels are also unbuildable. (As the 500m habitat boundaries slice through parcels on the perimeter, some of those parcels, if they are in Tier III, might be buildable someday.)

Estate of Lightner states the elements necessary for designation as a class action, and our next move is a class certification motion. There is sufficient precedent for class action "taking" lawsuits, and there is no real reason for denying a certification in this case. (And, if certification is denied, that order is immediately appealable.) Should class certification be granted, the class will include all non-governmental owners of undeveloped Tier I properties on Big Pine and No Name Keys, and of Tier II and III properties that fall entirely, or almost entirely, within the bunny rabbit circles.

Should class certification be denied by both the trial and appellate court, only named Plaintiffs will be eligible for declaratory relief and Just Compensation. We are opening this case up to all affected Big Pine and No Name Key landowners to become named Plaintiffs. Even if class certification is granted, having additional Plaintiffs can only help us by bringing additional facts to the table, and allow us to invest a larger portion of our time to this lawsuit. Affected Big Pine and No Name Key landowners may join either as a named Plaintiff, or as a non-party who will become a named Plaintiff if class certification is denied. To join the Estate of Lightner lawsuit in either capacity, please call me at (305) 451-3951. You cannot join a lawsuit by e-mail.

P.S. We took a similar route in the multi-plaintiff vested rights lawsuit Ambrose v. Monroe County, where we eventually had over 500 named Plaintiffs. In that case we elected not to seek class action status. We won before the trial court but Judge Payne's decision was reversed by the 3rd DCA acting as legislators instead of judges.

State Appeals North Key Largo Verdicts

2008-11-02T21:07:00.007-05:00

On October 30, 2008, the State of Florida filed Notices of Appeal on the two Judgments totaling $6.9 Million (not including costs & attorneys' fees) rendered by 16th Judicial Circuit Judge Luis Garcia on October 8, 2008. The State's lawyers obviously believe the landowners' Condemnation Blight defenses raised in this case (filed in 1995!) will be employed by other landowners in the Florida Keys -- raising the cost of stealing property in the Florida Keys by several hundred percent.

Can you just imagine! Landowners demanding Fair Market Value for their property, when the State has been getting away with grand theft for the past 12 to 15 years! Heaven Forbid! It looks like the Florida appellate courts are going to get another opportunity to explain, to the State property thieves, that they cannot get away with driving property values down with regulations -- so they can steal the land for pennies on the dollar.

A Florida District Court appeal often takes a year to reach a decision, and two years is not at all unusual. At 11%, however, this appeal -- presuming we prevail -- will cost the State about $2,400 per day (nearly $900,000 per year) in interest alone.

Unfortunately, a million dollars a year is a small price to pay if the State can bamboozle more landowners to "voluntarily" sell their land to the State for 15% of Fair Market Value. At $40,000 per parcel, which is what the State has been paying, it would cost only $8 million to buy 200 Florida Keys parcels (which is what it bought in the past two years). If it had to pay Fair Market Value -- as it will for the two parcels now on appeal -- 200 parcels would cost on the order of $50 million!

In order to put a stop to this highway robbery, we will be mailing a special issue of our Voice of Reason newsletter to every owner of undeveloped Florida Keys property. We will urge these landowners to demand full Fair Market Value for their property. Enough is enough!

$6.9 Million Awarded in Keys' Taking Case: Appeal May Delay Payment but, at 11% Interest Who Cares?

2008-10-09T14:46:00.028-04:00

On October 8, 2008, Circuit Judge Luis Garcia entered judgments totaling $6,877,257 – plus costs and attorneys’ fees – as Just Compensation for two parcels on North Key Largo. The West heirs were awarded $5,050,000 plus $1,848,114 interest, for the State’s 2004 condemnation of 21 acres (+5.6 acres of submerged land). Richardson, et al., were awarded $450,000 plus $149,142 interest, for a 4-acre parcel. Yet neither parcel has had any development rights since 1983, when the County began a series of “rolling” development moratoria in the Keys. In 1986, the State and County adopted a “one-year” moratorium on all development on North Key Largo (except Ocean Reef, Anglers’ Club, and some subdivisions). The 1986 moratorium remains in effect today – over 22 years after it was imposed.

Judge Garcia agreed with our assertion that these government acts constitute Condemnation Blight, and ordered the State to appraise the properties as if no land use regulations had been adopted since 1983. The Fair Market Values (FMV) of the properties were to be determined as if they were as buildable today as they were on February 8, 1983.

When the State condemned the parcels in 2004, it had to deposit “good-faith estimates” of FMV into the registry of the Court. It deposited $550,000 for West and $80,000 for Richardson. This supports our position that the State is purchasing Keys’ land at unconscionably low prices. Comparing the jury verdicts – FMV as of 2004 – to the State’s good-faith deposits, the FMV of the West parcel was 9.2 times the State’s “good-faith estimate,” or 11 cents on the dollar. The FMV of the Richardson parcel was 5.6 times the State’s “good-faith estimate,” or 18 cents on the dollar. Combining the two yields 11-½ cents on the dollar – a ratio of FMV to purchase price of 8.7 to 1.

Keys’ landowners are clearly being snookered by government. To landowners who have so far resisted the governments’ offers of 10 to 15 cents on the dollar, we say stand pat; sit tight; do nothing. Ignore their offers. If the government does not begin condemnation proceedings, you can force the issue by suing the government for “inverse condemnation.”

If you must say something, say "condemn it"! There are four court decisions on my website, http://mattsonlaw.com, that describe similar deceptive tactics by the United States government in the acquisition of Cape Cod National Seashore, Point Reyes National Seashore, Assateague Island National Seashore, and Voyageurs National Park. In the Voyageurs National Park scandal, the average FMVs reached by juries – when compared to the government’s appraisals and offers – averaged 8.85 times the amount the government offered before filing condemnation suits. In other words, the Government was “offering” only 11.3 cents on the dollar. Sound familiar?

The difference between the State of Florida's offers for undeveloped Keys properties, and their real Fair Market Value in condemnation proceedings, comes down to two words: Condemnation Blight. Owners of such properties -- who remain unconvinced -- should read Judge Garcia's Condemnation Blight Order in the West, et al. case discussed in this post. (This link takes you to my website.)

Landowners should also note that, in eminent domain proceedings ("condemnation"), attorneys fees and costs are paid to their lawyers on top of what the landowner is awarded by the Court -- which is usually bound by the jury verdict. There is no downside to an eminent domain proceeding, particularly when the government takes by a "quick-take" proceeding and has to pay interest on the jury verdict from the date of the quick-take. If the government sits on its hands and won't bring a condemnation proceeding, you can seek out a good inverse condemnation attorney and sue the government. You may bear some expense in that scenario, and the government may offer to settle by giving you a building permit. Once the current mortgage panic subsides, the demand for buildable land in the Keys should start rising again.

Addendum Dated Oct 30, 2008: The State filed its Notice of Appeal on both judgments today. During the appeal, interest will continue to run on the judgments, and on the separate costs and attorneys' fee awards, at the rate of 11% per annum. Under today's financial clouds, that's a pretty good investment.

Florida Keys National Park? Are They Nuts?

2008-09-27T10:44:00.012-04:00

As it's lead story, this morning's Florida Keys Keynoter announced that the Monroe County Administrator was planning to tell Florida Governor Christ and the other three "Cabinet" officials that the solution to the Florida Keys' land acquisition mess is to get Congress to designate the Keys a "national park." That, they surmise, would bring $1.2 billion to buy up all the Tier I and II land in these regulation-abused islands.

First, the County's $1.2 billion is off by nearly an order of magnitude. This is spelled out in the Amended Complaint we served yesterday in [Estate of] Lightner v Monroe County and the State of Florida, a Class Action that is pending before Judge Mark Jones in the 16th Judicial Circuit (Monroe County). Our analysis of the State's acquisition costs -- for Tier I properties on Big Pine and No Name Keys only -- revealed that the State acquired 204 such parcels, between January 2006 and July 2008, paying, on average, $40,321 per parcel (they were almost 100% "dry lots"). NOT ONE of these parcels was acquired by Eminent Domain.

Therein lies the problem. In eminent domain proceedings, a landowner has the right to raise the debilitating effect of Condemnation Blight -- which was the reason the West and Richardson plaintiffs in May of this year (2008) were able to recover nearly 10 times what the State was "offering" to purchase their moratorium-affected North Key Largo lands.

In an analysis carried out by real estate appraiser extraordinaire Bob Gallaher for our nearly $50 million in Bert Harris Act claims filed with Monroe County and the Governor's office this past Wednesday, Mr. Gallaher determined the average Fair Market Value (this term-of-art does not allow "sales to government" as evidence of Fair Market Value) of dry lots in the Lower Keys, as of January 2008, was $240,000. That is six times what the State paid for those 204 dry lots in the last 2.5 years. It does not take a rocket scientist to figure that the County's $1.2 billion figure could easily become $7.2 billion if the landowners refused to sell "voluntarily." While it's not $700 billion -- as Treasury Secretary Hank Paulsen is trying to extract from Congress -- $7.2 billion is not chump change. And, I should point out, Congress is going to be so worn out from the Wall Street debacles that it is highly unlikely Monroe County's "leaders" are going to see $1.2 billion, much less $7.2 billion, in this lifetime. QED.

It is time for someone to inform the owners of undeveloped land in the Florida Keys that they should simply refuse to sell -- and should either hold out for an eminent domain suit to be filed, or -- better yet -- just sue the County and State in inverse condemnation.

Say "Hello" to Bert (Harris, that is)

2008-09-24T11:47:00.008-04:00

We served 41 Bert Harris Act petitions today on Monroe County and the State of Florida, seeking $46.7 million in compensation to the owners of 196 Florida Keys land parcels. These are only a tiny fraction of the number of parcels adversely affected by the Keys' recently-completed land-stealing pogrom (a/k/a "tier zoning"). Thirty-four claimants' properties are in Tier I, which are essentially unbuildable. Seven own Tier II property. For Tier I and II landowners to even compete for a permit, they would be forced to spend on the order of $235,000 for 20 points (Tier I) or $117,500 for 10 points (Tier II) just to begin with the same number of "points" a Tier III landowner starts with. AND they must acquire all but two of those 10 or 20 points by purchasing their neighbors' Tier I lots -- at 4 points apiece -- at the bargain basement prices the government has been paying. If this is not held unconstitutional -- and we will revisit that as each lawsuit is served -- I will eat my favorite hiking hat.

We strongly recommend Tier I, II, and III-A landowners refuse to sell their land at less than the Fair Market Value it would have if it had a building permit -- and flatly refuse to sell to any government agency. The purpose of the Tier pogrom is to force landowners to sell to government, or the other leeches (including the Tier I and II landowners themselves), at far less than the Fair Market Values they would receive in a Condemnation proceeding -- by invoking the legal doctrine known as Condemnation Blight. I have included some Fair Market Value information at the end of this post. If nobody offers that much -- do not sell! Either force the government to condemn, or bring your own inverse condemnation action. Either way, the government pays your costs, attorneys fees, and interest.

In May of this year, an Upper Keys jury awarded over $5 million to our clients, the West and Freeman families, four years (for which they will get another 10% interest/yr) after the State acquired their 20+ acres on North Key Largo for $550,000 in a "quick-take". (See my May 22, 2008 post). Just as in today's pogrom, the West-Freeman property was infected with Condemnation Blight building moratoria -- which allowed us to have the Judge instruct the jury to value the property as if the moratoria never existed. There is a more substantial analysis of Condemnation Blight on my website -- http://MattsonLaw.com.

As it is now public record, I will share with you our appraiser's Fair Market Value analysis that we provided the County and State in several of the Bert Harris Act petitions. These are January 1, 2008, "generic" Fair Market Values -- that need to be adjusted if special conditions exist, such as too little lot area or the need to pay mitigation in order to place fill in a wetland -- for Upper and Lower Keys residential lots only.

Lower Keys Lots: Dry $240,000; Canal $320,000; Open Water $520,000
Upper Keys Lots: Dry $170,000; Canal $405,000; Open Water $610,000

Statute of Limitations Decisions Remain Pending at Third DCA

2008-09-18T07:56:00.022-04:00

Eleven weeks after the oral arguments, we are still awaiting the Third District Court of Appeal decisions in Collins v Monroe County & State of Florida and Shands v City of Marathon. No opinions in these cases were released this week. The Court did release its opinion in Bauknight v. Monroe County, a temporary taking case with at least one legal issue -- and a 2/3rds panel congruency -- in common with Collins and Shands.

Bauknight involved two Big Pine Key landowners who received building permit allocations -- but no building permits -- in 1996, and a third landowner who was similarly stiffed in 1997. By 2002, there were 23 Big Pine Key landowners in this inane limbo and, smelling "taking" lawsuits, Monroe County initiated a "beneficial use determination" (BUD) hearing on their behalf. Lo and behold, the BUD Special Master concluded the 23 had been "deprived of all beneficial use" of their properties, and recommended their permits be issued. The County Commission ratified the Special Master's recommendation in June 2002. Eventually, building permits were issued to the Bauknight plaintiffs.

The Bauknight Complaint was filed September 24, 2004, two years after the County's final BUD decision -- but eight years after the permit "allocations" were granted (seven in the Bauknights' case). Following a March 7, 2007 hearing (after Judge Audlin's dismissals of Collins and Shands on statute of limitation grounds), Sixteenth Judicial Circuit Judge Luis Garcia dismissed the case. Judge Garcia's remarks during that hearing indicated his concern that the Plaintiffs could delay filing their lawsuits for seven or eight years -- and just allow the damages to pile up year after year.

In the Third DCA's Bauknight opinion, the panel acknowledged -- as Williamson County held in 1985 -- that a regulatory taking claim does not arise until after the landowner ripens the claim, stating: "The owners were obligated to pursue relief under the beneficial use ordinance ... before the owners’ taking claims were ripe." As to whether a temporary taking claim can accrue before the BUD process is completed, the Bauknight panel held it cannot. The panel does, however, agree that the Bauknight plaintiffs' taking claims -- if they had any -- were ripe following the BUD decision in 2002. ("As a preliminary matter, the owners’ taking claims are ripe for judicial consideration.")

The difference between Bauknight and the Collins and Shands claims lies in the fact that the Collins and Shands plaintiffs were not granted building permits following their BUDs. The 11 Collins plaintiff-landowners received BUDs stating that they had been "deprived of all beneficial use of their property" and were "entitled to just compensation." However, neither the County nor the State commenced eminent domain proceedings to acquire the properties, and "just compensation" was never paid. In Shands, the City of Marathon's BUD Special Master recommended the City issue a building permit in order to avoid paying just compensation, but the City Council told the landowner to pound sand -- and then stuck its collective head in said sand.

The Bauknight panel consisted of Chief Judge David Gersten and District Judges Gerald Cope and Richard Suarez. Judges Gersten and Suarez also sat on the panel that heard oral arguments 11 weeks ago in Collins and Shands, along with District Judge Juan Ramirez. We are confident the Gersten-Suarez-Ramirez panel will reverse Judge Audlin's erroneous dismissals in Collins and Shands in the not-too-distant future.

Click here to see the latest Third DCA opinions, including the Bauknight decision posted yesterday (the Court's opinions are posted at 10:45 AM on Wednesdays).

Uppity Landowners Hand Defeats to "the Village with no Character"

2008-09-10T17:21:00.013-04:00

In 2002, the Florida Keys village of Islamorada enacted a land use ordinance that prohibited "formula restaurants" [read "Starbucks"] and limited the frontage and square footage of "formula retail" establishments [read "Walgreens"] -- so that no national chain business could operate in the "quaint little village" [or so the Council thought]. In 2002, Glenn and Virginia Saiger, owners of Island Silver & Spice -- an "independent" retailer -- had a contract to sell their store to a developer that planned to build -- Ohmigosh! -- a Walgreens! In Islamorada! (Islamorada already had a CVS drugstore....) Absolutely Not! Said the sage village Council. Not in our fair village! Never! The Saigers sued in U.S. District Court.

In 2005, Joseph Cachia received an offer to buy his existing retail store -- also independent -- from a corporation that wanted to build a Starbucks in Islamorada. Oh, my! Not a Starbucks! Said the village Council, essentially telling Mr. Cachia to pound sand. Mr. Cachia also sued in U.S. District Court.

Mr. Cachia, unluckily, drew U.S. District Judge Michael Moore (of the FEMA list, for those who own undeveloped Keys land), who bounced Mr. Cachia out of court on a motion to dismiss. Judge Moore held that, as a matter of law, the ordinance was supported by a legitimate state interest. The Saigers, on the other hand, drew Senior (formerly Chief) Judge James Lawrence King -- for whom the Miami federal courthouse is named. Judge King came to the opposite conclusion, writing one of the funnier opinions of his career, and held that Islamorada had violated the United States Constitution's "Dormant Commerce Clause." In his opinion, Judge King observed the village of Islamorada had no "small town community" interest to protect.

Mr. Cachia appealed Judge Moore's dismissal, and Islamorada appealed Judge King's decision in favor of the Saigers. The appeals went to the 11th U.S. Circuit Court of Appeals, in Atlanta, where they were consolidated for oral argument before Circuit Judges Tjoflat and Black, and a visiting judge, Judge Restani. Oral argument was on June 3, 2008. Both appeals were decided two days ago, September 8, 2008.

The 11th Circuit panel affirmed Judge King's decision in Island Silver & Spice v. Islamorada, while reversing Judge Moore's decision in Cachia v. Islamorada. The Island Silver & Spice opinion can be read and downloaded on the 11th Circuit's website here, and the Cachia opinion here.

$$$, anyone? Judge King awarded substantial money damages, plus attorneys' fees, against Islamorada, and the 11th Circuit awarded additional attorneys' fees to both Island Silver & Spice and Mr. Cachia. Mr. Cachia's case will now be returned to Judge Moore for a trial on damages. We can be certain that Islamorada will be handing over sums well in excess of $1 million -- all of which will come from the village taxpayer's wallets! (Maybe they'll start thinking about their wallets when election time rolls around.)

All in all, a splendid job well done. Congratulations are due to local counsel John Jabro; to Jim Hendrick for taking off his government hat long enough to support these landowners; and to Joel Perwin, appellate counsel for both landowners.

Homevoters Oust Moderate Commissioners: Property Thieves Coming Back

2008-08-28T11:45:00.015-04:00

Florida Keys Homevoters turned two Monroe County Commissioners out of office in this week's primary, and retained one who should have been relieved of duty. Sonny McCoy and Dixie Spehar, two of three Commissioners who had been voting as a block recently to return some sort of common sense to the Keys, were defeated rather decisively. Ms. Spehar was drubbed by tree-hugger Kim Wigington, 67.0% to 30.6% (2.4% abstaining). Sonny McCoy didn't do much better, losing to Carlos Rojas by 59.9% to 37.1% (3.0% abstaining). Commissar Sylvia Murphy -- who has never seen a piece of vacant property that should be used for anything other than conservation -- kept her seat by defeating Sewer Board Chairman Gary Bauman by a mere 55.7% to 40.2% (4.1% abstained). Ouch!

Even though all three Commissars face opposition in the November general election, Monroe County Commissioners have all run as Republicans for years -- but Keys' "Republicans" are all over the political spectrum, from left of Barack Obama to right of Attila the Hun. The three challengers -- Democrats challenging Mr. Rojas and Ms. Wigington and a "no-party-affiliated" candidate (actually a client of ours, Sal Gutierrez) challenging Ms. Murphy -- are not likely to prevail in November.

It is fair to say that, come November, we will see the County shift back to a "steal the land and damn the torpedos (i.e., lawsuits), full speed ahead" mentality. This go-around, the new Commissars will have a plethora of pleadings on their plate. And Monroe County will no longer be able to waste millions of taxpayers' dollars on outside counsel (at rates as high as $750/hour).

For a discussion of Homevoters, see: William Fischel, The Homevoter Hypothesis, Harvard Univ Press 2001 -- Click on title of this post for a link to this book on Amazon.com.

Due Process Challenge to ROGO Coming

2008-07-16T22:04:00.005-04:00

In addition to the lawsuit challenging the constitutionality of Islamorada's "BPAS" ordinance, we are preparing a lawsuit challenging Monroe County's rate-of-development con game and confiscatory zoning regulations. This will consist of substantive due process claims against the County and the State, by several landowners. We do not contemplate a class action for several reasons, but primarily the complexities of dealing with a number of confiscatory (and, therefore, unconstitutional) regulations, state rules, and comprehensive plan provisions. If the regulations can be invalidated by a handful of landowners, it will become difficult for the government to continue applying them to other landowners.

We believe there is an excellent chance to remove the 255 permit/year growth cap, as well as the "ROGO" ordinance itself, and a good chance of removing the confiscatory zoning categories (NA, SS, SR, etc) unless the County or State decides to condemn all those properties and pay full Fair Market Value for them. In an eminent domain proceeding, the ROGO and confiscatory zoning regulations will be ignored (condemnation blight), and landowners will be paid as if their property is buildable.

Given the state of the economy, there is not a chance in Hell that Monroe County will condemn as much as a square foot of land. The State may have had the money to do so, but now that the Governor has decided to pay $1.7 Billion to buy Big Sugar, it is doubtful that the State will initiate eminent domain proceedings in the Keys -- at least in the near future.

It is sad that thousands of landowners "voluntarily" sold their Keys property to the State over the past 15 years. But, as then-Chief Judge Schwartz, of the Third District Court of Appeal, reminded us several years ago, "the courts do not exist to save people from the use of their pens." Maybe someone will think of a way to unwind some of those sales....

Existing and potential clients should call me or Andy Tobin to talk about the differences between invalidation and "taking" relief, and the specific application of these principles to their individual properties.

No-Use Zoning Held Unconstitutional on SDP Grounds

2008-07-02T22:50:00.010-04:00

On July 1, 2008, the Supreme Court of Wisconsin (yes, the ultra-liberal court that decided Just v. Marinette County in 1972) ruled that when a land use district has no "as-of-right" uses, said regulation is unconstitutional on substantive due process grounds. (Think Lochner v New York, 198 US 45 (1908).) Click on the title of this post to view and download a copy of the opinion in Town of Rhine v. Bizzell, et al., 2008 WI 76, from the Wisconsin Supreme Court's website.

Sound familiar, Keys landowners? Do I hear "Tier One?" --- "red-flag wetlands?" --- Offshore islands, anyone? It's long past time to start challenging Monroe County's (and its municipalities') confiscatory land "lack-of-use" regulations, starting with the bogus "rate-of-development caps," and working our way through the "tier system" and the local wetland regulations. Oh, and there are no statutes of limitation on constitutional challenges to ordinances or statutes. The ordinance in Wisconsin had been in effect over 20 years before Bizzell, et al., took it down.

Thanks to Pacific Legal Foundation for the heads-up on this positive development.

Oral Arguments in Collins and Shands Taking Cases

2008-06-30T18:13:00.009-04:00

This morning, the Third District Court of Appeal -- sitting in Key West -- heard oral arguments in the appeals of Collins v. Monroe County & the State of Florida, and Shands v. City of Marathon. Both cases were dismissed last year -- by freshman Circuit Judge David Audlin -- on grounds that defied common sense. The panel, consisting of Chief Judge David Gersten and District Judges Richard Suarez and Angel Cortinas, had numerous questions for the attorneys and, on the whole, appeared concerned with the governments' theories of the two cases. Judge Suarez described the governments' explanation of the Beneficial Use Determination (BUD) procedure as a "gotcha," while Judge Cortinas opined that the BUD process simply reinstates a landowner's right to sue for a "facial taking," even after the 4-year Statute of Limitation has run. In the Shands case, counsel for the City of Marathon argued that this could go on for "a million" years. So what? The Judges agreed, as this is how the ordinance reads!

In my 40+ appearances before the Florida District Courts of Appeal (and seven before Federal Circuit Courts of Appeal), I have never seen such an engaged panel of judges. I usually leave oral arguments with no clue what the outcome will be. Today was different.

Islamorada Rate-of-Development Ordinance Challenged as Unconstitutional on Due Proces Grounds

2008-06-14T02:13:00.008-04:00

On May 27, 2008, we filed a regulatory taking and substantive due process Complaint against Islamorada, for an out-of-state landowner who owns a 4-acre, undeveloped parcel on the ocean, with (god-forbid!) trees. We have not served it yet, for several reasons (including a companion suit against the County that has not been filed yet). But, local reporter Robert Silk discovered the Complaint three days ago and it will probably be in the newspaper by Wednesday.

Robert Silk characterized this latest action as a "full-blown attack" on the Village's Rate-of-Development ("ROD") ordinance (local name = BPAS), and he is correct. Four years ago, the Massachusetts Supreme Court held an ROD ordinance unconstitutional (813 NE 2d 843). The town of Hadley had enacted an ROD due to a (theoretical or real, it matters not) infrastructure deficiency (think "hurricane evacuation"). Fifteen years later, said "deficiency" still existed and the supreme court declared the ROD ordinance unconstitutional. I believe that somewhere in the neighborhood of 30 to 40 Massachusetts towns have since lost similar challenges to their ROD ordinances. (This was a real popular gimmick 15-20 years ago.)

The Florida Keys have been under majoritarian rule for the past twenty years, and the owners of undeveloped land, especially owners who do not vote in the Keys, have no worse enemy than the "got-miner," "no-growth," local voters (and their elected Commissioners) who are solely concerned with maintaining the highest possible market values for their HOMES in the Keys. PREVENTING new construction is what these HOMEVOTERS believe will maintain the value of what is their only significant asset, or at least the largest portion of their net worth.

In 1787, in Federalist #10, James Madison warned the nation-to-be that majoritarian rule (he called it "faction") was the major evil the new Republic had to keep under control -- but he recognized that majorities have long been known to protect their financial interests by destroying the rights of the minority. In 1788, Madison -- then drafting the Bill of Rights to be enacted by the First Congress -- in a letter to Thomas Jefferson, said "the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the government," and "where the power ... is in the many not in the few ... it is much more to be dreaded that the few will be sacrificed to the many."

Madison was correct. The problem is more severe today in small communities like ours, where the privileged Commissioners -- and their majoritarian HOMEVOTER supporters -- can literally drive the value of undeveloped property (owned by the voting minority) to zero. If you are in the minority, you cannot remove these HOMEVOTER ELECTED local officials, but you can:

(1) refuse to sell your land to the State or County, or to individuals seeking points, and
(2) sue them for Just Compensation (the Fair Market Value it would have with the maximum possible number of permits before they changed the regulations and prevented you from building) for the diminution of your property's value.

The Founding Fathers, pushed by Madison, put your right to sue the bastards in the Bill of Rights, because they knew this could happen to you. And, guess what, it has!

West-Richardson Post-Trial Activity

2008-06-14T01:47:00.005-04:00

On June 2, 2008, 10 days after the verdicts came in on the West and Richardson parcels (on North Key Largo, where most landowners have not been able to disturb a stick since 1982), we filed a Motion for New Trial in the West case (the $5.06 million verdict). We received the State's response on June 13, 2008 -- strongly suggesting that our motion be denied. It is likely that the Judge will rule on our motion fairly quickly, and we will post that decision when we receive it.

The State's representatives have made it clear all along that the State intends to appeal any verdicts in this case. The obvious reason is that the State does not want to have to pay Fair Market Value all of a sudden, when it has been stealing Keys' landowners' properties for a miniscule fraction of their value for over 15 years. Come to think of it, the County falls into that category as well.

The best advice we can give to Keys' landowners at this time is "don't sell your undeveloped Key's property to anyone "-- not the State, not the County, and not to individuals who want the property for "points" -- unless you are being offered the Fair Market Value you would get if the property had a building permit (or more than one, if it is acreage and large enough to support several homes or businesses).

West-Richardson Verdicts In

2008-05-22T17:56:00.005-04:00

About two hours ago, a Florida Keys jury rendered a pair of verdicts in the "condemnation blight" eminent domain cases of Florida DEP v West, et al., and Florida DEP v. Richardson, et al., for the taking of properties on North Key Largo -- where no development, whatsoever, has been allowed since February 9, 1982. For the West parcel, comprised of 22.4 acres of upland (about 40% of being mangroves and the rest hardwood hammock) and 4.4 acres of submerged land, the jury's verdict was $5,060,000. For the Richardson parcel, comprised of 4.3 acres of upland (about 1.5 acres of salt marsh and buttonwood -- wetlands -- would have been buildable in 1982) and .92 acre of submerged land, the verdict was $450,000.

These actions were initiated by the State in 1995, as "slow-take" eminent domain proceedings. Mr. Tobin and I took over representation of the landowners in 1996, and immediately filed a condemnation blight-based counterclaim for inverse condemnation. The case went nowhere until the State converted it to a "quick-take" in 2004, and acquired title to the West property for $550,000, and the Richardson property for $80,000. Today's verdicts, based on the 2004 taking dates, were 820% (West) and 462.5% (Richardson) greater than the amounts paid in 2004.

I would be remiss if I didn't acknowledge we sought substantially more than what the jury awarded on the West property -- $8.4 million -- but the jurors apparently did not believe our proposed multifamily (condominium) development scenario would have been marketable in 1982. The 1982 market was not something they were supposed to consider (the sale was in 2004), but it appears they did. The key to this case is the trial court's April 2007 Condemnation Blight Order, that you can read by clicking on the caption of this post.

The State has indicated it plans to appeal the Condemnation Blight Order, and it probably will. We hope to get an opinion from the Third DCA, or from the Florida Supreme Court, affirming the blight order, so we will have a binding precedent that will govern all of our pending and future inverse condemnation cases throughout the Florida Keys.

May 2008 Litigation Updates

2008-05-15T22:47:00.004-04:00

There has not been a post on this Blog since mid-March, when we were headed into the 22 BUD hearings. The BUD hearings took place in March, but more on that later). The Third DCA struck Monroe County's Answer Brief in the Collins appeal, and the County filed an amended brief. Mr. Tobin and I also spent a lot of time preparing for a week-long trial in Florida DEP v. West, et al., a "condemnation blight" North Key Largo case the State filed 13 years ago.

The West trial starts May 19th at the Plantation Key courthouse. One reason it took so long to get to trial was our 1996 counterclaim for inverse condemnation, based on condemnation blight. We contended that the moratoria imposed on North Key Largo, starting on February 9, 1982, had "frozen" the Landowners' rights to develop the subject property. Eventually, the State "took" the property in 2004, and we converted our counterclaim into a Motion in Limine. Judge Garcia entered his now-famous condemnation blight order last year. The only thing left to be done is the jury trial on compensation, using the 1982 land development regulations as the basis for appraisal. In 2004 the State deposited $550,000 and $80,000 into the registry of the court in order to take title of the West and Richardson properties.

"Condemnation Blight" was not restricted to North Key Largo. It applies to most of the Florida Keys. The State has vowed to appeal Judge Garcia's decision and, assuming it does and we win, we can start applying the concept throughout the Florida Keys.

Court Dismisses Regulatory Taking Claim -- Ignores Ripeness Requirement

2008-03-16T23:17:00.007-04:00

On March 10, 2008, 16th Circuit Court Judge Garcia dismissed Geneva Sutton's regulatory taking case against Monroe County, on a motion to dismiss, accepting the County's argument that the availability of a "super-variance" (the County's "Beneficial Use Determination" process) is irrelevant to the U.S. Supreme Court's ripeness doctrine. First espoused in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), Williamson County "ripeness" was recently re-visited in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), where the Supreme Court held, at 533 U.S. 620-21:

"… a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law ..."

No final judgment of dismissal has been entered yet, so the case is not yet "ripe" for appeal. In keeping with the spirit of the Court's order (denying our Motion for Reconsideration), perhaps we should file our appeal as quickly as possible -- without waiting for finality. Frankly, if we can't reverse this decision in our sleep, Andy and I should retire and go play shuffleboard.

23 Beneficial Use Determinations set for Hearing

2008-03-07T00:38:00.006-05:00

There is a good chance the 23 initial "Group Two" Beneficial Use Determination ("BUD") petitioners -- whose petitions were filed in October 2005 -- will be heard by State Division of Administrative Hearings ("DOAH") Administrative Law Judge ("ALJ") Larry Sartin on March 18-21, 2008, at the State Office Building in Marathon (Room 104). ALJ Sartin, who also hears Monroe County Code Enforcement proceedings, is a "contract special master" under the Monroe County Code (i.e., this is not a state administrative hearing).

While it has taken 2-1/2 years to get these BUD petitions heard, the Group One BUD Petitioners (Collins, et al.) filed their petitions in January 1997 and they were heard in December 2000 -- a 4-year delay. The "special master" was an attorney who also was employed by Monroe County, and he took so long to write the "recommended orders" that the County Commission did not act on them until 2002 and 2004. ALJ Larry Sartin is a professional, and we would lay odds that his recommended orders will be almost instantaneous (in Keys' time).

Monroe County has not been overly enthusiastic about scheduling these BUD hearings, but in January 2008 Andy Tobin and I made it clear that, if the petitions were not heard in February or March 2008, we would seek a Writ of Mandamus from a Circuit Court judge. So the BUD process goes -- grudgingly -- on.

You should be aware that Monroe County has proposed an amended Beneficial Use Determination procedure that would make this process almost impossible. Most of the initial 23 Group Two BUD petitioners, and a half-dozen later petitioners, have challenged that ordinance. A DOAH hearing on that challenge is scheduled for June 2008 in Key West.

There's more. Keep tuned into this blog site for announcements of Due Process challenges to Monroe County's Comprehensive Plan, Rate-of-Development Ordinance ("ROGO"), and BUD process. Here I go again, telegraphing our plans to the enemy!

West-Richardson Condemnation Trial to Feature Condemnation Blight Defense

2008-01-31T02:49:00.002-05:00

We are gearing up for a May 2008 trial in the North Key Largo condemnation blight case, State of Florida v. West, et al. We originally responded to the State's condemnation complaint with an inverse condemnation counterclaim, alleging the State and County had created a "condemnation blight" situation on North Key Largo in 1982. After the State exercised a quick-take in 2004, it gave up the right to "walk away" from the condemnation if it didn't like the price. We moved for a pre-trial order on condemnation blight, which was granted in April 2007. (Click on the link above to view the Order and a chronology of the case.)

On January 18, 2008, in a 3-hour hearing, the State tried to convert our condemnation blight claim -- which requires valuing the property as of the 2004 quick-take date (when title passed to the State), but valuing it as if the 1982 regulations were still in place and the blight never existed -- into a de-facto taking claim. In a de-facto taking, where the owner is actually ousted from the property, the property is valued as of the date of the ouster. In this case, that would have been February 9, 1982. Then interest is added on for the 28-year "delay" in payment. The Court rejected that argument. The appraisers will calculate Fair Market Value as of the "date of taking" in 2004, and as if the regulatory environment was the same as it was on February 8, 1982. They will also assume that the possibilities of rezoning will be as it was in 1982, not as it was in 2004.

This is a significant case for the owners of undeveloped property in the Florida Keys. Although the North Key Largo blight is very easy to prove, and the State's heavy hand easy to demonstrate, there is a blight in existence throughout the Keys. Landowners need to know that they can demand much higher prices for their unbuildable land than the paltry sums the State and County are offering.

Judge Ready to Dismiss Unripe Taking Case on Statute of Limitations Grounds

2007-12-02T01:23:00.002-05:00

On Dec. 1, 2007, we submitted a proposed order denying Monroe County's motion to dismiss in Sutton v. Monroe County.

The County's statute of limitations argument defies the U.S. Supreme Court's decision in Williamson County v. Hamilton Bank (1985), where the Court held that a landowner cannot pursue a regulatory taking claim without first giving the local government an opportunity to change its mind -- and obtaining a final decision regarding what use that governmental entity will allow on the subject property. This final decision is necessary to ripen the landowner's taking claim.

Monroe County's theory that Florida's 4-year statute of limitation for bringing a regulatory taking claim begins to run at the moment the local government denies a "development order" (i.e., building permit, plat approval, etc.), stands in direct opposition to the Supreme Court's decision in Williamson County. The denial of the "development order" is only the beginning of the ripening process.

After landowners have been turned down on a permit application or, in the Florida Keys, after they read the land development regulations and comprehensive plan and find that development is theoretically prohibited on their property -- landowners must request a Beneficial Use Determination (BUD) from the County. This brings each individual taking claim to the attention of the County's legislative body, the County Commission.

The BUD process is designed to produce the Williamson County "ripeness" decision. It allows the County Commission to override any County Land Development Regulation or Comprehensive Plan provision, in order to avoid liability for a regulatory taking. If the County tells landowners to drop dead, they are free to sue for the regulatory taking, i.e., their claim has "ripened."

In the Sutton case, Ms. Sutton applied for a building permit in 1997 and was denied. She appealed that denial to the Planning Commission to no avail. She did not request a BUD decision until 2005, eight years later.

Even though there is no time limitation on filing in the BUD Ordinance, nor in the Comprehensive Plan Policy that mandates the procedures in the Ordinance, the County would like to retroactively create one. The County also fails to notice that Florida's statutes of limitation do not apply to quasi-judicial, local government, administrative proceedings. A landowner may, for whatever reason, wait 5, 25, or 50 years before requesting a BUD.

The unacceptable alternative would allow local governments to adopt confiscatory regulations, and then sit back and wait for 4 years to pass, only to allow the government to obtain "effective" title to the property without having to pay for it. The drafters of our Constitutions were not that stupid -- if the government wants it, it must pay for it!

Landowner wins $37 million taking award

2007-12-01T23:34:00.002-05:00

The owner of 24 oceanfront acres in the City of Half Moon Bay won a $36.8 million Inverse Condemnation award on Thursday (Nov. 28, 2007) following a nine-day trial in the U.S. District Court for the Northern District of California. The City had -- by "borrowing dirt" from the property in 1983-84 -- created man-made wetlands on the property. It then refused to repair the damage it had done, then refused to allow the owners to repair the damage.

In 1990 the City approved a tentative subdivision map for the property. In March 1991, the City imposed a 4-month development moratorium while it improved its sewer system. To pay for the upgrade, Plaintiffs were hit with a $962,988 sewer connection lien in 1994. After 11 extensions of the "4-month" sewer-based moratorium, it ended on March 31, 1998 (7 years later). The actual STP expansion was not completed until November 1999.

In May 2000, the City rejected Plaintiffs' application for final approval to build the subdivision, because "new wetlands" (that the City had created) had "suddenly appeared" since 1990. (Readers will kindly note the passage of 16 years since the City created the "new" wetlands.)

On Nov. 28, 2007, U.S. District Court Chief Judge Vaughn Walker entered a 167-page Order styled "Findings of Fact & Conclusions of Law," holding the City of Half Moon Bay liable for the "taking" of the subject property, determining the compensation to be paid to Plaintiffs as $36,795,000, plus interest, attorney fees, and expenses. The Court also enjoined the City from collecting any future payments on the sewer connection lien.

December 2007 Litigation Updates

2007-12-01T13:13:00.001-05:00

We have six Regulatory Taking cases pending. Collins et al. v. Monroe County et al. (appeal); Galleon Bay Corp. v. Monroe County et al. (new trial); Lightner et al. v Monroe County et al. (BPK & NNK); McCole v. Marathon and Beyer v. Marathon (answers filed); and Sutton v. Monroe County (motion pending).

Answer briefs are due Dec. 10 in Collins. In Galleon Bay, several motions are set for Dec. 5. The Lightner Class Action Complaint is pending amendment. McCole and Beyer are ready for summary judgments on liability. The gov't motion to dismiss Sutton on statute of limitation grounds was heard Nov. 14 and we are awaiting an order.

We have a Direct Condemnation case pending, Florida DEP v. West et al. On Nov. 8, the gov't claimed the case could not be tried in the time available in November, so Judge Garcia postponed the trial to May '08. In this case, we prevailed on a Condemnation Blight motion on April 9, and Judge Garcia ordered the property appraised under the regulations in effect on Feb 8, 1982.

We have two lawsuits in preparation, Gutierrez et al. v. Monroe County et al, and Evanoffs v. Islamorada et al. These are Regulatory Taking cases that will also challenge a number of other land development regulations and ComPlan provisions in the County and the Village.

Remember, additional details and copies of pleadings, motions, and orders can be found on http://mattsonlaw.com/.

BUD Petition filed

2007-11-29T12:57:00.001-05:00

On behalf of the Group Two plaintiffs, we filed a petition on Thursday, November 29, 2007, requesting an administrative hearing on the Dept. of Community Affairs proposed final order approving Monroe County's proposed ordinance 35-2007, which would amend the Beneficial Use Determination (BUD) process by adding several years, and thousands of dollars, to the process (which the US Supreme Court has held we must go through before filing a taking suit), and by eliminating any administrative compensation remedy (not that the County has ever offered to pay fair market value, anyway). Until this process ends, the existing BUD ordinance will stay in effect. A copy of the petition will be posted later today on http://mattsonlaw.com/.

Condemnation Blight in the Florida Keys

2007-11-28T10:42:00.002-05:00

Since 1986, Florida Keys landowners have watched government acquire the vacant property next door for 10 cents on the dollar. There are about 8,000 Keys landowners who haven't given away their property for next to nothing, but that number decreases every day. This phenomenon has a name. It's called Condemnation Blight. It happens when government decides to acquire property for preservation purposes, but doesn't appropriate sufficient funds to pay Fair Market Value for the property it wants to control.

If you are getting letters from the State's hired land thieves, don't make the mistake of assuming you have no choice other than accepting the State's low-ball offer. Just saying "no" is a good start. You don't have to sell at a discount if you don't want to.

But then don't make the mistake many have made before you -- hiring some out-of-the-Keys eminent domain lawyer. They don't understand the condemnation blight situation in the Keys -- and they don't want to.

Rate-of-Development Ordinances and Condemnation Blight

2007-10-27T02:52:00.003-04:00

Rate-of-development ("ROD") ordinances -- coupled with confiscatory land use regulations -- are intended to (and do) depress the Fair Market Value of undeveloped parcels. This allows the government's land thieves to sweep up land at prices far below what they would have to pay in a condemnation proceeding. They can either repeal the regulations or begin eminent domain proceedings so people will get the full value of their property.

In 2006, and so far in 2007, the State's land thieves increased their offers, paying $46,000± for lots in many subdivisions -- which doesn't match what people are paying for ROGO lots -- but it's better than 2005's $35,000. The State paid out $31.8 million for 815 unbuildable Keys properties in 2006 (average $39,086), and $7.6 million for 363 parcels in 2006 (average $21,070.)

A few landowners have really rung the bell. A colleague accepted $220,000 from the State for an unbuildable IS lot on Middle Torch Key. (We told them that must mean the lot is worth at least $500,000.) That's still the highest price the State has paid for a platted lot to date, and was the 7th largest check the State wrote in 2006 (for unbuildable Keys property, that is).

Judge Dismisses Shands; Beyer and McCole Next

2007-10-12T22:09:00.002-04:00

Today we learned Judge Audlin dismissed the regulatory taking case Shands v City of Marathon on a Statute of Limitations defense. Shands involves an offshore island that was the subject of confiscatory regulations enacted in 1986. The City's counsel knows better. In City of Key West v. Berg (1995), Mr. Burke took Shands' position and prevailed.

To prevent judicial invalidation of its 1986 regulations, the County adopted an "escape clause" and called it a "beneficial use determination." A landowner cannot sue for a taking until he or she applies for a BUD and is unsuccessful. This "ripeness" process was established by the Supreme Court in Williamson County v. Hamilton Bank (1985), and Shands Plaintiffs requested a BUD, got turned down, and sued Marathon for Just Compensation.

We have two cases pending against Marathon that are in the same posture as Shands; Beyer and McCole. I bet they will be summarily dismissed, as they are before the same judge. I suspect he will dismiss at least two other pending "taking" cases before 2007 ends. Six taking cases thrown out in the judge's first year on the bench! I will also bet that at least five of the six dismissals will be reversed; very possibly all six. There appears to be a bias here that would reasonably cause most "taking" plaintiffs to move for his disqualification.

[Shortened 10/17/07 by JSM.]

October 2007 Litigation Updates

2007-10-10T01:07:00.001-04:00

Our leading case is Galleon Bay v. Monroe County et al. It was tried to a jury in June 2006. The jury returned a verdict of $3 million, as the Fair Market Value on the date of trial. We moved for a new trial because of the incompetent testimony of the County's appraiser, Trent Marr, who concluded the property was only worth $500,000 as a trap storage site, while Galleon Bay's expert appraised the property at over $5.5 million. The trial judge, Chief Judge Richard Payne, granted Galleon Bay's motion for a new trial. The State and County appealed the new trial order -- lost -- and the Third DCA sent the case back for a new trial. However, Judge Payne retired and his successor, David Audlin, has shown a propensity for throwing out Judge Payne's decisions. It remains to be seen whether Galleon Bay can get a fair trial before Judge Audlin. For details, go to http://www.mattsonlaw.com/.

Our number two case this month is Collins, et al. v. Monroe County et al., an 11-Plaintiff case that was filed in November 2004. This case was also before Judge Payne before he retired at the end of 2006. Judge Payne had entered a partial summary judgment on liability, in favor of the Collins plaintiffs, and the case was set for a jury trial in June 2007. In late May 2007, Judge Audlin summarily dismissed the Collins case. Collins is on appeal to the Third DCA in Miami, with Appellants' Initial Brief due Nov. 4.

Earlier this year we filed a class-action regulatory taking case, Lightner, et al v. Monroe County et al., for adopting confiscatory regulations on Big Pine and No Name Keys. There are about 2,000 potential class members. The case was transferred to Judge Jones in Key West. We have an agreement with the County's counsel allowing us to amend the Complaint to include a challenge to the constitutionality of the confiscatory regulations.

We have two regulatory taking cases pending against the City of Marathon, Beyer v. Marathon and McCole v. Marathon, and another one pending against the County, Sutton v. Monroe County. And we are working on Complaints in two more, Gutierrez v. Monroe County et al, and Evanoff's v. Islamorada et al.

This list does not even attempt to identify the approximately 30 landowners for whom we are trying to schedule "Beneficial Use" hearings. We almost had 23 of those hearings set for the first week in October, but they were scheduled too late and had to be postponed.

Rent-to-Buy

2007-10-09T23:51:00.002-04:00

It's one thing for a law professor to suggest the "rent-to-buy" compensation formula for regulatory takings; it gets a lot better when a Judge of the U.S. Court of Federal Claims ("CFC") adopts the formula in an Opinion.

CFC Judge Victor Wolski entered an Opinion and Order on August 10, 2007, in Gary Bailey v. United States, published at 2007 U.S. Claims LEXIS 261, in which he validated the "rent-to-buy" compensation formula proposed by Assoc. Prof. (now Distinguished Professor) Gregory Stein (Univ. Tenn. College of Law) in his 1995 law review article, "Pinpointing the Beginning and Ending of a Temporary Regulatory Taking," 70 Wash. L. Rev. 953 (Oct. 1995).

Judge Wolski's Opinion puts to rest the government's contentions, in Collins and Galleon Bay, that compensation for a regulatory taking (in Florida) is the Fair Market Value on the date the regulation "took" the property, plus interest until payment is made.

We have consistently argued that, under Florida law, "regulatory taken" property is valued "as of the date of trial, or when title transfers, whichever comes first," unless the government has "ousted" the landowner by fencing the property or building a prison, canal, or railroad track on it.

What the "rent-to-buy" compensation formula means is easily understood. After a regulation has been determined, by a court, to have "taken" the property, the government is liable to the owner for "rent," based on market rates in the geographic area, from the date of the taking until the date the government acquires the full, fee-simple, interest in the property. That can occur either at the time of a condemnation trial, or when a court "order of taking" issues after the government deposits a check for the property's "estimated value" in the Court registry.

To complete the transaction, the government then must pay the owner the Fair Market Value of the property as of the date of the condemnation trial, or as of the date of an "order of taking," if the government has already made a "good-faith deposit" of the Fair Market Value.

That is how Florida Eminent Domain law works; the State and County are having a cow over what they decry to be "two takings" when there should only be one. That is why this Blog is entitled Grand Theft: Property.

Judge Wolski's 53-page Opinion and Order can be downloaded from the CFC's website, at http://www.uscfc.uscourts.gov/Opinions/Wolski/07/WOLSKI.BAILEY081007.pdf

Who will pay?

2007-10-08T10:29:00.002-04:00

This is my first post on this Blog. After running a one-sided blog for a few months on my 10-year old website, http://mattsonlaw.com/, I decided to try a format that allows for exchanges of ideas with clients, friends (and adversaries), and people who are just looking for information on regulatory taking issues.

My law practice in the Florida Keys is devoted -- almost 100% -- to regulatory taking claims (though I do take on other land use matters). At this point in my career, I like focusing on "taking" litigation, but I enjoy bashing government at every opportunity, whether on vested rights claims, constitutional issues, or other interesting or complex matters.

If successful in the takings area, I will put myself out of business. Sooner or later, the time will arrive when someone has to pay Florida Keys landowners for the thousands of parcels that are being turned into parkland by confiscatory regulations. When that time comes, will it be the Monroe County taxpayers? Or will the State of Florida come up with the cash? If there is no money, the government will have to throw in the towel and let everyone use their property (what a novel thought). That might cause me to consider retiring.