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