Wednesday, July 16, 2008

Due Process Challenge to ROGO Coming

In addition to the lawsuit challenging the constitutionality of Islamorada's "BPAS" ordinance, we are preparing a lawsuit challenging Monroe County's rate-of-development con game and confiscatory zoning regulations. This will consist of substantive due process claims against the County and the State, by several landowners. We do not contemplate a class action for several reasons, but primarily the complexities of dealing with a number of confiscatory (and, therefore, unconstitutional) regulations, state rules, and comprehensive plan provisions. If the regulations can be invalidated by a handful of landowners, it will become difficult for the government to continue applying them to other landowners.

We believe there is an excellent chance to remove the 255 permit/year growth cap, as well as the "ROGO" ordinance itself, and a good chance of removing the confiscatory zoning categories (NA, SS, SR, etc) unless the County or State decides to condemn all those properties and pay full Fair Market Value for them. In an eminent domain proceeding, the ROGO and confiscatory zoning regulations will be ignored (condemnation blight), and landowners will be paid as if their property is buildable.

Given the state of the economy, there is not a chance in Hell that Monroe County will condemn as much as a square foot of land. The State may have had the money to do so, but now that the Governor has decided to pay $1.7 Billion to buy Big Sugar, it is doubtful that the State will initiate eminent domain proceedings in the Keys -- at least in the near future.

It is sad that thousands of landowners "voluntarily" sold their Keys property to the State over the past 15 years. But, as then-Chief Judge Schwartz, of the Third District Court of Appeal, reminded us several years ago, "the courts do not exist to save people from the use of their pens." Maybe someone will think of a way to unwind some of those sales....

Existing and potential clients should call me or Andy Tobin to talk about the differences between invalidation and "taking" relief, and the specific application of these principles to their individual properties.

Wednesday, July 2, 2008

No-Use Zoning Held Unconstitutional on SDP Grounds

On July 1, 2008, the Supreme Court of Wisconsin (yes, the ultra-liberal court that decided Just v. Marinette County in 1972) ruled that when a land use district has no "as-of-right" uses, said regulation is unconstitutional on substantive due process grounds. (Think Lochner v New York, 198 US 45 (1908).) Click on the title of this post to view and download a copy of the opinion in Town of Rhine v. Bizzell, et al., 2008 WI 76, from the Wisconsin Supreme Court's website.

Sound familiar, Keys landowners? Do I hear "Tier One?" --- "red-flag wetlands?" --- Offshore islands, anyone? It's long past time to start challenging Monroe County's (and its municipalities') confiscatory land "lack-of-use" regulations, starting with the bogus "rate-of-development caps," and working our way through the "tier system" and the local wetland regulations. Oh, and there are no statutes of limitation on constitutional challenges to ordinances or statutes. The ordinance in Wisconsin had been in effect over 20 years before Bizzell, et al., took it down.

Thanks to Pacific Legal Foundation for the heads-up on this positive development.