Monday, June 30, 2008

Oral Arguments in Collins and Shands Taking Cases

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.

1 comment:

Jim Mattson said...

The Beneficial Use Determination has two parts: a Comprehensive Plan provision adopted in 1996, and a Land Development Regulation adopted by Ordinance in 1998. The County's Land Development Regs are available online at, and the BUD regulation is at Sec 9.5-171 to 174. The County is attempting to amend the BUD to make it more difficult for a landowner to use, but that amendment is tied up -- by us -- in an administrative challenge. The BUD Comprehensive Plan provision is not available online, but I will put a link to that provision on my next blog entry.