Does Laches Bar Prosecution of Code Violation 24 Years after Gov't has Knowledge of Non-Life Threatening Infraction?

In 2001, Sandra Carter bought a modest single-family, stilt house in the Florida Keys -- built in 1976 -- for $116,000. The house came with a history that is on its way to becoming an enigma. There is an enclosed area on the ground floor (below base flood elevation) that, according to Monroe County, violates the local floodplain ordinance. On June 8, 2007, Code Enforcement cited her on six counts, including using the enclosed space for habitation, using the space (for anything?), and turning her single-family home into a duplex. Though her attorney raised laches as a defense, the hearing officer concluded that Ms. Carter must have known the structure was illegal because she "had worked as a realtor in Monroe County." She was ordered to cease, desist, obtain an after-the-fact permit (which they won't give her), or demolish "as directed."

What Ms. Carter "knew" seems a a stretch. If a drug dealer knew he was committing a crime, does his knowledge toll the statute of limitation? I don't think so. And, for those who do not live in flood-prone areas, these enclosed areas have always been allowed in the Florida Keys (with a building permit). What is not allowed is renting them out as apartments (or even allowing the grandchildren to sleep there). The standard FEMA flood insurance policy even insures freezers, water heaters, air conditioners, washers and dryers in such enclosures.

Ms. Carter appealed, again raising laches as a defense. The Circuit Court noted that the "illegal" enclosure has been on the Property Appraiser's records since at least 1983, and probably since the late 1970's. But Code Enforcement's citation omitted the date the "illegal" space was enclosed (i.e., heinous crime committed). On that technical detail, the Court reversed the hearing officer's order. In its September 29, 2008 opinion, the Court also stated:

"... the date of the offense has created an enforcement situation where the County is belatedly taking action against a property owner, at least twenty-four years after the violation was apparently known to the County. Under these circumstances, it is entirely possible that the doctrine of laches would properly preclude such a belated enforcement."

Kudos to Ms. Carter's attorney, Lee R. Rohe, for a job well done. Now he needs to follow though with the Third District Court of Appeal, and get a nice, precedential written opinion.

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.

Half Moon Bay Revisited

In a post last December 1, I reported the $37 million judgment awarded to the owner of 24 acres of oceanfront land in Half Moon Bay, California -- 18 miles south-southwest of San Francisco Int'l Airport. In Yamagiwa v. City of Half Moon Bay, a U.S. District Judge held that the city, in imposing a series of land development regulations, and excavating nearby areas for stormwater drainage -- that converted the property into undevelopable wetlands -- had "taken" the property and was liable for $37 million in Just Compensation.

In his March 2008 newsletter, Just Compensation, Gideon Kanner noted that the parties had settled. In that agreement, the city will either allow the landowner to develop the property for residential use. If it fails in that endeavor (presumably a euphemism for the California Coastal Commission's lead feet) the city will have to pay the owner $18,000,000.

Monroe County and the State of Florida will please take note of this interesting "development," and think hard about whether they want to keep on heading for the same treatment.

Big Pine Key - No Name Key Class Action "Taking" Lawsuit

On September 26, 2008, we served Monroe County and the State of Florida with an Amended Complaint in a class action "taking" lawsuit brought by eight owners of 27 undeveloped Tier I properties on Big Pine and No Name Keys. (Estate of Lightner, et al., v Monroe County & the State of Florida, Case No. CA-K-07-280, assigned to Circuit Judge Mark Jones.) You can view or download the Amended Complaint by clicking here or on the title of this post. In July '08, there were about 1,279 to 1,310 privately-owned, undeveloped parcels of land designated Tier I -- and 438 designated Tier II -- on Big Pine and No Name Keys. According to the 2005 County/State Habitat Conservation Plan (HCP), 99.3% of the Tier I parcels on Big Pine and No Name Keys are absolutely unbuildable. (The nine theoretically "buildable" parcels are a fiction intended to inhibit the filing of this lawsuit, and that is a blog post for another day.)

Estate of Lightner seeks two forms of relief from confiscatory regulations, under both the Florida and United States Constitutions. Counts I (US Const.) and II (Florida Const.) are Substantive Due Process counts for declaratory judgments holding the tier system, the HCP, the acquisition of an incidental take permit from the USF&WS, and numerous ordinances and comprehensive plan provisions, invalid as unconstitutional "no-use" zoning. Counts III (US Const) and IV (Florida Const.) are claims for Just Compensation for the regulatory "taking" of the class properties.

According to the HCP, there are 2,214 privately-owned, undeveloped parcels within 500 meters of Lower Keys marsh rabbit (a/k/a "bunny rabbit") habitat on Big Pine and No Name Keys, including 1,535 in Tier I, 510 in Tier II, and 167 in Tier III. Although some of those parcels have been purchased -- at well below fair market value -- by government, most of those 2,214 parcels are also unbuildable. (As the 500m habitat boundaries slice through parcels on the perimeter, some of those parcels, if they are in Tier III, might be buildable someday.)

Estate of Lightner states the elements necessary for designation as a class action, and our next move is a class certification motion. There is sufficient precedent for class action "taking" lawsuits, and there is no real reason for denying a certification in this case. (And, if certification is denied, that order is immediately appealable.) Should class certification be granted, the class will include all non-governmental owners of undeveloped Tier I properties on Big Pine and No Name Keys, and of Tier II and III properties that fall entirely, or almost entirely, within the bunny rabbit circles.

Should class certification be denied by both the trial and appellate court, only named Plaintiffs will be eligible for declaratory relief and Just Compensation. We are opening this case up to all affected Big Pine and No Name Key landowners to become named Plaintiffs. Even if class certification is granted, having additional Plaintiffs can only help us by bringing additional facts to the table, and allow us to invest a larger portion of our time to this lawsuit. Affected Big Pine and No Name Key landowners may join either as a named Plaintiff, or as a non-party who will become a named Plaintiff if class certification is denied. To join the Estate of Lightner lawsuit in either capacity, please call me at (305) 451-3951. You cannot join a lawsuit by e-mail.

P.S. We took a similar route in the multi-plaintiff vested rights lawsuit Ambrose v. Monroe County, where we eventually had over 500 named Plaintiffs. In that case we elected not to seek class action status. We won before the trial court but Judge Payne's decision was reversed by the 3rd DCA acting as legislators instead of judges.

State Appeals North Key Largo Verdicts

On October 30, 2008, the State of Florida filed Notices of Appeal on the two Judgments totaling $6.9 Million (not including costs & attorneys' fees) rendered by 16th Judicial Circuit Judge Luis Garcia on October 8, 2008. The State's lawyers obviously believe the landowners' Condemnation Blight defenses raised in this case (filed in 1995!) will be employed by other landowners in the Florida Keys -- raising the cost of stealing property in the Florida Keys by several hundred percent.

Can you just imagine! Landowners demanding Fair Market Value for their property, when the State has been getting away with grand theft for the past 12 to 15 years! Heaven Forbid! It looks like the Florida appellate courts are going to get another opportunity to explain, to the State property thieves, that they cannot get away with driving property values down with regulations -- so they can steal the land for pennies on the dollar.

A Florida District Court appeal often takes a year to reach a decision, and two years is not at all unusual. At 11%, however, this appeal -- presuming we prevail -- will cost the State about $2,400 per day (nearly $900,000 per year) in interest alone.

Unfortunately, a million dollars a year is a small price to pay if the State can bamboozle more landowners to "voluntarily" sell their land to the State for 15% of Fair Market Value. At $40,000 per parcel, which is what the State has been paying, it would cost only $8 million to buy 200 Florida Keys parcels (which is what it bought in the past two years). If it had to pay Fair Market Value -- as it will for the two parcels now on appeal -- 200 parcels would cost on the order of $50 million!

In order to put a stop to this highway robbery, we will be mailing a special issue of our Voice of Reason newsletter to every owner of undeveloped Florida Keys property. We will urge these landowners to demand full Fair Market Value for their property. Enough is enough!