Friday, November 14, 2008

Local Judges Dismiss Three Regulatory Taking Cases on Statute of Limitations Grounds

As we predicted a year ago -- in an October 12, 2007 post -- 16th Circuit Judge Audlin dismissed Beyer v City of Marathon & the State of Florida and McCole v City of Marathon & the State of Florida, for failing to sue within 4 years of enactment of the confiscatory ordinances. He reached this conclusion -- unless he doesn't read, or can't understand, the case law we provide him, or he just doesn't care -- fully aware that Keys landowners have to ripen their taking claims by applying for -- and obtaining -- a final decision via the "Beneficial Use Determination" procedure, or by filing a building permit application, waiting 4 years, and then asking for "Administrative Relief." And that the Statute of Limitations does not start to run until the administrative proceeding has concluded. [The 4-year wait in the permit queue is a dead giveaway.]

We filed Notices of Appeal in McCole on November 5, 2008 (3rd DCA Case No 3D08-2841), and Beyer on November 12, 2008 (3rd DCA Case No 3D08-2864). In an ideal world, both appeals will be mooted by the Third DCA's reversal of Judge Audlin in Collins.

As I noted in a post eight months ago -- March 16, 2008 -- 16th Circuit Judge Garcia also dismissed a regulatory taking claim -- in Sutton v Monroe County. We amended that complaint to state a cause of action for a due process taking. Ultimately we believed it was unnecessary to go through a Due Process trial when the dismissal of her regulatory taking claim is likely to be reversed by the District Court of Appeal. We recently dismissed the due process count, and Judge Garcia will be entering a Final Judgment, giving us a "hat trick" to take up to the 3rd DCA.

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