Court Dismisses Regulatory Taking Claim -- Ignores Ripeness Requirement

On March 10, 2008, 16th Circuit Court Judge Garcia dismissed Geneva Sutton's regulatory taking case against Monroe County, on a motion to dismiss, accepting the County's argument that the availability of a "super-variance" (the County's "Beneficial Use Determination" process) is irrelevant to the U.S. Supreme Court's ripeness doctrine. First espoused in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), Williamson County "ripeness" was recently re-visited in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), where the Supreme Court held, at 533 U.S. 620-21:

"… a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law ..."

No final judgment of dismissal has been entered yet, so the case is not yet "ripe" for appeal. In keeping with the spirit of the Court's order (denying our Motion for Reconsideration), perhaps we should file our appeal as quickly as possible -- without waiting for finality. Frankly, if we can't reverse this decision in our sleep, Andy and I should retire and go play shuffleboard.

23 Beneficial Use Determinations set for Hearing

There is a good chance the 23 initial "Group Two" Beneficial Use Determination ("BUD") petitioners -- whose petitions were filed in October 2005 -- will be heard by State Division of Administrative Hearings ("DOAH") Administrative Law Judge ("ALJ") Larry Sartin on March 18-21, 2008, at the State Office Building in Marathon (Room 104). ALJ Sartin, who also hears Monroe County Code Enforcement proceedings, is a "contract special master" under the Monroe County Code (i.e., this is not a state administrative hearing).

While it has taken 2-1/2 years to get these BUD petitions heard, the Group One BUD Petitioners (Collins, et al.) filed their petitions in January 1997 and they were heard in December 2000 -- a 4-year delay. The "special master" was an attorney who also was employed by Monroe County, and he took so long to write the "recommended orders" that the County Commission did not act on them until 2002 and 2004. ALJ Larry Sartin is a professional, and we would lay odds that his recommended orders will be almost instantaneous (in Keys' time).

Monroe County has not been overly enthusiastic about scheduling these BUD hearings, but in January 2008 Andy Tobin and I made it clear that, if the petitions were not heard in February or March 2008, we would seek a Writ of Mandamus from a Circuit Court judge. So the BUD process goes -- grudgingly -- on.

You should be aware that Monroe County has proposed an amended Beneficial Use Determination procedure that would make this process almost impossible. Most of the initial 23 Group Two BUD petitioners, and a half-dozen later petitioners, have challenged that ordinance. A DOAH hearing on that challenge is scheduled for June 2008 in Key West.

There's more. Keep tuned into this blog site for announcements of Due Process challenges to Monroe County's Comprehensive Plan, Rate-of-Development Ordinance ("ROGO"), and BUD process. Here I go again, telegraphing our plans to the enemy!