Wednesday, March 25, 2009

3rd District Court of Appeal Denied Motions to Remand Beyer, McCole, and Sutton

Despite the fact that the City of Marathon agreed to the remand of Beyer v City of Marathon & the State of Florida, and the County's response to our remand motion in Sutton v. Monroe County was essentially "please make them write a Brief," the Florida 3rd District Court of Appeal denied our motions to remand Beyer, McCole v. City of Marathon, and Sutton in light of the Court's New Year's Eve decisions in Collins v. Monroe County and the State of Florida and Shands v. City of Marathon.

All three of these regulatory taking cases were dismissed on the same statute of limitation ground that was rejected by the same Court in Collins and Shands. The only opposition to our remand motions came in McCole, where the City raised an additional argument below and apparently thinks that argument might be enough to win. So, now we need to write three more Briefs, and have three more oral arguments. And the governments' private-sector lawyers will bill the taxpayers for more attorneys' fees.

Friday, March 20, 2009

Voice of Reason Sent to Every Owner of Undeveloped Tier I Property in Unincorporated Monroe County

Over the next few days, copies of our latest issue of The Voice of Reason should appear in the mailboxes of every owner of undeveloped, Tier I, property in unincorporated Monroe County. Even though we put this issue together a couple of months ago, we had to get it cleared by the Florida Bar as "advertising." The Bar's reviewer took issue with our use of words like "stealing" and "thieves," when referring to the governments of Florida and Monroe County. She suggested we were accusing government of criminal activities for which they should be tried and incarcerated. It hadn't crossed my mind yet, but sounds like a good idea to me!

So we toned down the rhetoric a notch, updated the story on page 4, and uploaded it to be printed and mailed -- by first-class mail. We are working on a modified version to be mailed to the owners of all undeveloped property in Islamorada and Marathon. Fortunately, now that we have been cleared by the Florida Bar with the current issue of The Voice of Reason, we don't have to submit future issues to the Bar for vetting.

Monday, March 2, 2009

Gov't Appeals Collins Decision to Florida Supreme Court

For those who are following the New Year's Eve regulatory taking decisions in Collins, et al. v Monroe County, et al., and Shands v. City of Marathon, let it be known that no stone will remain unturned. Friday, the gov't served notice that it was petitioning the Florida supreme court to review the Third DCA's Collins decision under its discretionary jurisdiction to hear whatever it takes an an interest in. These are uphill battles, but the gov't's notice suggests it has located an inconsistency between the Collins decision, and a decision of another District Court of Appeal.

The Monroe County Attorney's office requested permission, in January 2009, to file this petition for discretionary review. But I could not fathom, from its request to the County Commission, what it was relying on for its argument that the Collins decision "conflicts with the decisions of other Florida District Courts of Appeal." Perhaps the field of regulatory taking law is so far from what these gov't lawyers do on a day-to-day basis, they just don't understand the law.

Anyway, the discretionary review process is constrained by time and space limits. The gov't now has 10 days to serve its 10-page "jurisdictional brief." Then, we get 20 days (plus 5 days for mailing) to serve our response. There is no reply brief, and the gov't petitioners are limited to the words in the District Court of Appeal's opinion (no references to the record before the trial court are allowed). This is a tough one for the government.

Meanwhile, there is no automatic stay at this point. If the gov't wants the proceedings below to be stayed, it must get the District Court of Appeal to enter a stay order. Stay tuned. This is far from over.