The Florida Keys had a gut-wrenching change in land use regulations 22 years ago (Sept. 15, 1986, to be precise; and yes, I was here). As part of the 1986 ComPlan, two "safety valve" ordinances were put in place -- the Beneficial Use Determination ordinance you have read about on this blog and on my website. The other, a Vested Rights Determination, you have not. That's because the Vested Rights process had a one-year deadline for applications while the BUD process is available forever.
In 1987, the managers and owners of the Ocean Reef Club, ("the Reef)" an exclusive resort community at the north end of Key Largo, filed a Vested Rights application on behalf of the corporation, the club, and all the owners of land within the Club's (rather large) boundaries. The County appointed John Bigler, a Key West attorney, as Special Master to conduct a hearing on the application. Fred Tittle, who later became of counsel to Mattson & Tobin, represented the Reef. County Attorney Randy Ludacer represented the County. (My, those were the days, weren't they, when the County Attorney actually did some work instead of farming it out to $450/hour private attorneys.)
As in all administrative proceedings, a hearing was eventually held. Tittle and Ludacer went into executive session and carved out a deal. (In law school they called this "negotiating.") Tittle and Ludacer eventually returned to Mr. Bigler's hearing. They presented their done deal; there was some testimony by The Reef's manager; the deal was approved; and the County Commission approved Mr. Bigler's Recommended Order vesting everything on the planning horizon.
Fast forward 10 years. In 1996-97, the Florida Dept. of Community Affairs rammed a set of confiscatory wetland regulations down the County Commission's throats. "Adopt these or prepare for boarding" is what I understand the DCA said. (Although I knew that some of those DCA people were actually human; I also knew that some were decidedly evil.) These new rules included a novel concept; "red-flag" and "green-flag" wetlands were about to be identified (by aerial surveys using drunken pilots flying upside-down). Now, it made no difference to these folks that neither the US Army Corps of Engineers nor the Florida Dept. of Environmental Protection (FDEP) gave a whit about these red-and-green flag wetlands. They were going to SAVE THE KEYS. (Seems to me the Keys needed to be rescued from these lunatics.)
Fast forward another 10 years, to 2008. Now we're litigating that nice, cordial vested rights deal the County cut with the Reef in 1988 -- saving the County a huge legal bill at the time. Our client happens to have been one of the landowners covered by the 1988 Vested Rights order. But the drunken pilots discovered a patch of "caprock wetlands" on her property (which had been legally dredged and partially filled decades ago), and County "growth prevention" personnel told her she could not build anything on her $1 million lot.
OK, she said, who is going to pay me? So Andy Tobin took her through the Beneficial Use Determination process, where a landowner either gets paid, gets a permit, or gets the right to sue (See the Collins v Monroe County blog entry dated 12/31/08.) Instead of one-of-the-above, she was "granted" a reduction in bulk setbacks (that conflict with the Reef's setbacks), but told to "forget it."
So, can you imagine our chagrin when the County "planning staff" (read: "thieves") put language into our client's "beneficial use determination" resolution that purports to alter the Reef's 1988 Vested Rights order. Though the BUD ordinance spells out what the County Commission's choices are, they cannot help themselves from overreaching.
This case is now on appeal to the Florida Third District Court of Appeal, with oral argument set for January 13, 2009. One has to work very hard to stay ahead of the crooks in this business. At least Bernie Madoff only took people's money. Wish us luck.
In 1987, the managers and owners of the Ocean Reef Club, ("the Reef)" an exclusive resort community at the north end of Key Largo, filed a Vested Rights application on behalf of the corporation, the club, and all the owners of land within the Club's (rather large) boundaries. The County appointed John Bigler, a Key West attorney, as Special Master to conduct a hearing on the application. Fred Tittle, who later became of counsel to Mattson & Tobin, represented the Reef. County Attorney Randy Ludacer represented the County. (My, those were the days, weren't they, when the County Attorney actually did some work instead of farming it out to $450/hour private attorneys.)
As in all administrative proceedings, a hearing was eventually held. Tittle and Ludacer went into executive session and carved out a deal. (In law school they called this "negotiating.") Tittle and Ludacer eventually returned to Mr. Bigler's hearing. They presented their done deal; there was some testimony by The Reef's manager; the deal was approved; and the County Commission approved Mr. Bigler's Recommended Order vesting everything on the planning horizon.
Fast forward 10 years. In 1996-97, the Florida Dept. of Community Affairs rammed a set of confiscatory wetland regulations down the County Commission's throats. "Adopt these or prepare for boarding" is what I understand the DCA said. (Although I knew that some of those DCA people were actually human; I also knew that some were decidedly evil.) These new rules included a novel concept; "red-flag" and "green-flag" wetlands were about to be identified (by aerial surveys using drunken pilots flying upside-down). Now, it made no difference to these folks that neither the US Army Corps of Engineers nor the Florida Dept. of Environmental Protection (FDEP) gave a whit about these red-and-green flag wetlands. They were going to SAVE THE KEYS. (Seems to me the Keys needed to be rescued from these lunatics.)
Fast forward another 10 years, to 2008. Now we're litigating that nice, cordial vested rights deal the County cut with the Reef in 1988 -- saving the County a huge legal bill at the time. Our client happens to have been one of the landowners covered by the 1988 Vested Rights order. But the drunken pilots discovered a patch of "caprock wetlands" on her property (which had been legally dredged and partially filled decades ago), and County "growth prevention" personnel told her she could not build anything on her $1 million lot.
OK, she said, who is going to pay me? So Andy Tobin took her through the Beneficial Use Determination process, where a landowner either gets paid, gets a permit, or gets the right to sue (See the Collins v Monroe County blog entry dated 12/31/08.) Instead of one-of-the-above, she was "granted" a reduction in bulk setbacks (that conflict with the Reef's setbacks), but told to "forget it."
So, can you imagine our chagrin when the County "planning staff" (read: "thieves") put language into our client's "beneficial use determination" resolution that purports to alter the Reef's 1988 Vested Rights order. Though the BUD ordinance spells out what the County Commission's choices are, they cannot help themselves from overreaching.
This case is now on appeal to the Florida Third District Court of Appeal, with oral argument set for January 13, 2009. One has to work very hard to stay ahead of the crooks in this business. At least Bernie Madoff only took people's money. Wish us luck.
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