Statute of Limitations Decisions Remain Pending at Third DCA

Eleven weeks after the oral arguments, we are still awaiting the Third District Court of Appeal decisions in Collins v Monroe County & State of Florida and Shands v City of Marathon. No opinions in these cases were released this week. The Court did release its opinion in Bauknight v. Monroe County, a temporary taking case with at least one legal issue -- and a 2/3rds panel congruency -- in common with Collins and Shands.

Bauknight involved two Big Pine Key landowners who received building permit allocations -- but no building permits -- in 1996, and a third landowner who was similarly stiffed in 1997. By 2002, there were 23 Big Pine Key landowners in this inane limbo and, smelling "taking" lawsuits, Monroe County initiated a "beneficial use determination" (BUD) hearing on their behalf. Lo and behold, the BUD Special Master concluded the 23 had been "deprived of all beneficial use" of their properties, and recommended their permits be issued. The County Commission ratified the Special Master's recommendation in June 2002. Eventually, building permits were issued to the Bauknight plaintiffs.

The Bauknight Complaint was filed September 24, 2004, two years after the County's final BUD decision -- but eight years after the permit "allocations" were granted (seven in the Bauknights' case). Following a March 7, 2007 hearing (after Judge Audlin's dismissals of Collins and Shands on statute of limitation grounds), Sixteenth Judicial Circuit Judge Luis Garcia dismissed the case. Judge Garcia's remarks during that hearing indicated his concern that the Plaintiffs could delay filing their lawsuits for seven or eight years -- and just allow the damages to pile up year after year.

In the Third DCA's Bauknight opinion, the panel acknowledged -- as Williamson County held in 1985 -- that a regulatory taking claim does not arise until after the landowner ripens the claim, stating: "The owners were obligated to pursue relief under the beneficial use ordinance ... before the owners’ taking claims were ripe." As to whether a temporary taking claim can accrue before the BUD process is completed, the Bauknight panel held it cannot. The panel does, however, agree that the Bauknight plaintiffs' taking claims -- if they had any -- were ripe following the BUD decision in 2002. ("As a preliminary matter, the owners’ taking claims are ripe for judicial consideration.")

The difference between Bauknight and the Collins and Shands claims lies in the fact that the Collins and Shands plaintiffs were not granted building permits following their BUDs. The 11 Collins plaintiff-landowners received BUDs stating that they had been "deprived of all beneficial use of their property" and were "entitled to just compensation." However, neither the County nor the State commenced eminent domain proceedings to acquire the properties, and "just compensation" was never paid. In Shands, the City of Marathon's BUD Special Master recommended the City issue a building permit in order to avoid paying just compensation, but the City Council told the landowner to pound sand -- and then stuck its collective head in said sand.

The Bauknight panel consisted of Chief Judge David Gersten and District Judges Gerald Cope and Richard Suarez. Judges Gersten and Suarez also sat on the panel that heard oral arguments 11 weeks ago in Collins and Shands, along with District Judge Juan Ramirez. We are confident the Gersten-Suarez-Ramirez panel will reverse Judge Audlin's erroneous dismissals in Collins and Shands in the not-too-distant future.

Click here to see the latest Third DCA opinions, including the Bauknight decision posted yesterday (the Court's opinions are posted at 10:45 AM on Wednesdays).