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!

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