Sunday, December 2, 2007

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

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!

Saturday, December 1, 2007

Landowner wins $37 million taking award

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

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

Thursday, November 29, 2007

BUD Petition filed

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

Wednesday, November 28, 2007

Condemnation Blight in the Florida Keys

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.

Saturday, October 27, 2007

Rate-of-Development Ordinances and Condemnation Blight

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).

Friday, October 12, 2007

Judge Dismisses Shands; Beyer and McCole Next

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.]

Wednesday, October 10, 2007

October 2007 Litigation Updates

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

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.

Tuesday, October 9, 2007


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

Monday, October 8, 2007

Who will pay?

This is my first post on this Blog. After running a one-sided blog for a few months on my 10-year old website,, 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.