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

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!