tag:blogger.com,1999:blog-72307455854468243762024-02-07T19:51:39.787-05:00Grand Theft: Property... Goleta beach and Channel Islands on a clear December day.Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.comBlogger82125tag:blogger.com,1999:blog-7230745585446824376.post-50968891076492793502012-06-16T23:54:00.000-04:002012-06-16T23:54:18.854-04:00The Latest Endangered Species Scam to Hit the Florida Keys<div style="text-align: justify;">Two weeks ago, around June 4, 2012, Monroe County flooded landowners' mailboxes with a document entitled "Parcels Located Within Federally Protected Species Focus Areas -- Proposed Adoption of Ordinance to Implement Permit Referral Process." At the root of this document is the fact that the County stuck its head in the sand in 1990 when the National Wildlife Federation, <i>et al</i>., sued the US Fish & Wildlife Service (USF&WS) and FEMA (the Federal Emergency Management Agency) in the United States District Court in Miami. On August 25, 1994, the District Court ruled in favor of the environmental groups, and ordered the federal agencies to clean up their acts, as it were.</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">After the 1994 decision, the USF&WS and FEMA dragged their heels for many years, until 2005, when the District Court slammed the agencies for said foot-dragging. The 2005 decision shut down FEMA's authority to issue federal flood insurance in the Florida Keys on those properties that were deemed important to the Keys' rabbits, mice, and -- most importantly -- Key deer. After waiting a few years, Monroe County tried to intervene in the appeal of the 2005 decision, and was rejected. One presumes that anyone who sat on their rights to intervene for 15 years, from 1990 to 2005, probably wasn't going to get a seat at the table in this litigation. And the County's request for leave to intervene was, not surprisingly, summarily dismissed.</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">There is a lot more to this story, but I have an appellate brief to finish in the next week. As I have told several people this week, the County doesn't have a seat at the table in this fracas. And, even though County notices have been going out to people who own affected properties in the Village of Islamorada and the City of Marathon, the County's proposed action will not affect the Islamorada and Marathon landowners. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">The County is facing a June 30, 2012 deadline to adopt the ordinance it proposes in its June 4 notice. I would suggest that owners of vacant property in the unincorporated County might want to attend the County Commission's June 20, 2012 hearing (at 3:00 PM). You may not get an opportunity to be heard, but you might get some information on what is being proposed.</div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-61944462836809017742011-12-31T23:15:00.000-05:002011-12-31T23:15:24.437-05:00Is FEMA Forcing Monroe County to Pay Millions for Regulatory Takings as the Price of Maintaining Flood Insurance in the County?<div style="text-align: justify;">On Christmas Eve 2011, the Florida Keys Keynoter published an article entitled "<a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39NmRlMWM3M2YtYTljMC00OTlhLWI3OWMtZmVjZGUxNmU0YTUy&hl=en_US" target="_blank"><i>County to Sue FEMA Over Habitat Inspections</i></a>." One wonders how Monroe County even figured out it had a problem --- even though the Florida Key Deer sued the Federal Emergency Management Agency (FEMA) in 1990. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">In that case, the Key Deer, through their human spokesman, sued to <i>prohibit </i>the issuance of federal flood insurance in areas where Key Deer habitat existed. A summary judgment hearing was held, in Key West, on August 25, 1994. I assume the Key West Citizen let the locals know that a bunch of deer were trying to stop development in the Florida Keys. Monroe County, on the other hand, made no effort to intervene in the lawsuit.</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">Following the hearing, U.S. District Judge Michael Moore entered summary judgment in favor of the Key Deer, and against FEMA, ordering FEMA to "consult with" the USFWS (U.S. Fish & Wildlife Service) within 30 days. The agencies were required to determine whether the implementation of FEMA's National Flood Insurance Program [NFIP] was "likely to jeopardize the continued existence of the endangered Key Deer." <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39YmI4Y2IyN2EtNTg3Yi00NGFkLTg5M2MtMDViOTU5ZjVmODY5&hl=en_US" target="_blank"><i>See Florida Key Deer, et al. v.Stickney</i>, 864 F. Supp. 1222 (DC SD Fla., 1994)</a>.</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">Several people have asked why Monroe County did not move to intervene in the 1990 Key Deer lawsuit. There is a simple answer for this. After the huge changes in land development regulations that Monroe County went through from February 1982 through September 1986, including more than 100 public hearings (or one every two weeks for four years), Florida Keys landowners were worn out. In addition, all the 1990 Key Deer lawsuit sought to accomplish was to require FEMA to "consult" with USFWS. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">In 1990, USFWS was adamantly opposed to FEMA issuing flood insurance policies in the Florida Keys. As time went on, USFWS began to waiver, and it ultimately decided to "work with" FEMA. One could probably look at Washington, DC, politics between 1990 and 2005, and figure out who was doing what to whom, but that is a story for another day (and another blogger).</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">Nothing much occurred for the next 15 years, until the Key Deer plaintiffs sought, and Judge Moore granted, a permanent injunction against both FEMA and the USFWS. The injunction was to be lifted after the agencies "have complied with the [court's] order." As part of the order, the federal agencies were to provide the court with a list of all the properties in the Florida Keys that are "suitable habitat for the Listed Species." By 2005, the list had grown to eight species: the Key Largo cotton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh rabbit, Schaus' swallowtail butterfly, silver rice rat, Stock Island tree snail, and Key tree cactus. <i>See <a href="http://www.blogger.com/goog_94077323">Florida Key Deer, et al, v. Brown, et al.</a></i><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39NTkyNzVlYjEtZGQzNC00MGUxLWJkZjQtYjY4YzM1YTM5MDFj&hl=en_US" target="_blank">, 386 F. Supp. 2d 1281 (DC SD Fla. 2005)</a>, <i>affirmed</i>, <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39YTE1ZTg0YmUtNDE5OC00MDkzLTg5YzUtMjBjYTIzM2E0Mjgw&hl=en_US" target="_blank">522 F. 3d 1133 (11th Cir., 2008)</a>.<br />
<br />
Monroe County finally woke up in 2005 -- not because the County was asleep, but because the County was beginning to understand the concept of "regulatory taking" jurisprudence. It frantically sought to become a defendant in <i>Florida Key Deer v. Brown, supra</i>, but Judge Moore rejected the County's effort -- saying it was too little, too late, and that after waiting 15 years to intervene, the County's options had run out. In an attempt to appear meaningful, Monroe County appeared as an <i>amicus </i>in the 11th Circuit's appeal of Judge Moore's 2005 decision.<br />
<br />
The future is not clear as to Monroe County. But what is this hullabaloo all about? First, we note that many parts of the United States were denied federal flood Insurance in 1989. These are coastal areas deemed "too sensitive" for development for a variety of reasons, and are in the Coastal Barrier Resource System (CBRS). No Name Key, just east of Big Pine Key, is such an area. There are several other parts of the Keys that were, or almost were, designated as CBRS zones in 1989.<br />
<br />
The federal flood insurance program does not reach the CBRS areas, yet those areas continue to be developed, with or without some form of flood insurance. If people want to own a house on a beach, they are in an income bracket in which they can afford to purchase private flood insurance. What difference does it make whether a Federal flood insurance prohibition or a CBRS prohibition prevents private landowners from obtaining inexpensive flood insurance from the federal government? These landowners are going to build anyway.<br />
<br />
Monroe County has had a schizophrenic County Commission since 1990 -- which happens to be when the CBRS and flood insurance fiascos started (and I started practicing law here in 1983). The County's latest threat, as County Attorney Bob Shillinger put it, is:<br />
<br />
"We'll file suit and seek an injunction to stop [FEMA's request to Monroe County to determine which parcels are located in endangered species habitat]." Why, I am not sure. The County also puts a price tag on the issue, quoting County Administrator Roman Gastesi, stating:<br />
<br />
<ul><li>"the real exposure comes in possible takings cases in which landowners claim they can't build on their land because the County denied use of the land through the Endangered Species Act. They could then sue the County for the value of their land."</li>
</ul>Now, I am the first person who would sue the County under Mr. Gastesi's theory, if it made sense. But, these are federal regulations, and they don't actually deprive landowners of anything other than subsidized federal flood insurance -- which is not within the County's purview. On the other hand, I do not pretend to be a genius, and I would be willing to listen to the County's theories. The invitation is theirs to accept or reject.<br />
<br />
On that note, I wish everyone a Happy New Year! (And it lies less than an hour away.)</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;"><br />
</div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-41789105773580809362011-12-29T01:38:00.003-05:002011-12-29T13:00:36.988-05:00Do Some of our Elected Judges Lean Toward "Politically Correct" Decisions?<div style="text-align: justify;">Any trial attorney knows that psychological issues are as important to a trial judge as legal issues are to a jury. Anyone who ever watched a Perry Mason TV episode (sorry if you're too young to get it) understands the role emotions play in a courtroom. Instead of cops and robbers, we often just have robbers who consist of: (a) government bureaucrats who are interested in "taking" private property <em>without paying</em> <em>just compensation</em>, and (b) trial court judges who are more concerned with the financial integrity of the local government than they are for the Constitution of the United States of America.</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">The 50 states that comprise the United States of America are blessed with some of the most pristine -- and beautiful -- landscapes on earth. For private owners of these landscapes, the words "beautiful" and "pristine" have often become fighting words. Yet in 1789, our founders reached an accommodation, of sorts, on that issue. That deal, ultimately part of our constitution, and included assurances that no private property would be taken by the government without just compensation. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">It would not surprise me to learn that, on the first opportunity, some 18th century government bureaucrats sought to seize private property "for a public purpose," without any regard for <em>just compensation.</em> Today, it goes without saying that local governments have fallen behind on revenue projections to the extent that their <em>grande schemes</em> of the previous decade were nothing but pixie dust. Unfortunately, that dust includes fixed labor contracts with government employees' unions, primarily teachers, firefighters, and police, but also school janitors, bus drivers, etc. These forces can re-shape the environment in any town or city in the United States.<br />
<br />
One subject, that of elected vs. appointed trial judges, has come up many times over the past 200 years. <strong><em>To whom are elected judges indebted to?</em></strong> The subject has been debated before, as we note below.</div><div style="text-align: justify;">........................................................................................................................................</div><div style="text-align: justify;">"What method of judicial selection produces the “best” judges? And how do we determine who are the “best” judges? Stephen J. Choi (NYU Law), G. Mitu Gulati (Duke Law), and Eric A. Posner (University of Chicago Law) endeavored to answer these questions in their paper, “<em>Professionals or Politicians: The Uncertain Empirical Case For An Elected Rather Than An Appointed Judiciary</em>.” They took an empirical look at how differently selected judges rate on effort, skill, and independence aspects of judicial performance. As you might discern from the title, which judges perform “best” largely turns on what virtues you are looking for in a judge. (Hat tip to the <a href="http://uchicagolaw.typepad.com/faculty/2007/09/are-appointed-j.html">University of Chicago Law Faculty Blog</a>). </div><blockquote class="tr_bq"><div style="text-align: justify;">Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. <span style="color: blue;">The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals)</span>. </div></blockquote>It is my professional opinion that judges who are appointed on ability, rather than elected in a nonpartison election are the better choice.James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-7431954340901005922011-12-01T22:08:00.020-05:002011-12-28T21:03:16.488-05:00The Galleon Bay Case<div style="text-align: justify;">During the 1960s, Hannelore and Wolfgang Schleu bought undeveloped land on No Name Key, then linked by a wooden bridge to Big Pine Key. In the late '60s and early '70s, the Schleus, and others, platted two canal subdivisions, Bahia Shores in 1969 and Dolphin Harbour in 1970, with 91 lots in total. The Schleus held on to additional vacant land east of the two subdivisions, 14.5 acres of which were transferred to the Galleon Bay Corporation.<br />
<br />
In 1986 - at the request of a commercial fisherman who had an option to buy the 14.5 acres, Monroe County rezoned the Galleon Bay land to <i>commercial fishing village</i>, or CFV, a zoning district that allows both residential development and limited commercial fishing uses. When the fisherman could not obtain a dredging permit from the Dolphin Harbour canal to the 2-acre borrow pit on the Galleon Bay parcel, he let the option expire. At that point in time, the Schleu's daughter began a quest to develop the Galleon Bay land.<br />
<br />
This is where we came in - in 1988 - to assist Galleon Bay in obtaining a dredging permit so fishermen could have ingress and egress to the ocean. Even though the state agency responsible for issuing the permit agreed to do so, another state agency - the Department of Community Affairs (DCA) - exercised a then-unheard of state authority, under the federal Coastal Zone Management Act, and stated its opposition to the issuance of the dredging permit. What made this particularly galling was the same agency - DCA - had to sign off on the rezoning to <i>commercial fishing village</i> just two years earlier.<br />
<br />
After its first fiasco with DCA, Galleon Bay requested a change in zoning to <i>improved subdivision</i>, that Monroe County denied. After all, they had to protect commercial fishing villages even if they had no access to the ocean. Undaunted, in January 1991 Ms. Schleu appeared before the County Commission for a 14-lot plat approval - after giving up 11 of the 25 dwelling units that supposedly came with CFA zoning. The plat was approved, but the DCA stuck its nose into Galleon Bay again. The DCA lodged an appeal of the plat approval with the Florida Land & Water Adjudicatory Commission (FLAWAC), an "agency" comprised of the Governor and Cabinet of Florida.<br />
<br />
Still undaunted, Ms. Schleu filed a lawsuit against the Department of Community Affairs, and she filed it in the 16th Judicial Circuit, which consists solely of Monroe County. Circuit Court Judge Richard Fowler strongly suggested the DCA settle with Galleon Bay. And, after numerous conferences and delays, DCA, the County, and Galleon Bay agreed to a reduction in the sizes of the 14 lots, and the Revised Plat of Galleon Bay was approved by the County Commission in April 1994.<br />
<br />
</div><div style="text-align: justify;">From 1991 to 2011, the only development on the Galleon Bay subdivision has been the construction of roads and drainage structures. One lot was exchanged for a loan advanced by a family friend. It is now owned by the government - because she could not build on it.<br />
<br />
Galleon Bay went through a (statutory<i>, </i>not common-law) vested rights proceeding in 1998, after which a hearing officer, in October 1998, determined the corporation had invested $578,670 from the date of the first plat approval, January 1991, through April 1998. He recommended the County grant Galleon Bay vested rights to construct 14 homes on the property.<br />
<br />
By 1998, the majority of the County Commission were "got-miners" (I've got mine; we don't want any more development). In April 1999, the County Commission rejected both the hearing officer's factual findings - which is a no-no - and his recommended order. In November 2001, Galleon Bay filed a Certiorari complaint against the Monroe County Commission on their vested rights decision. Circuit Judge Richard Payne reversed the County Commission's 1999 decision. <i>See </i><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39ZTI5NDdhNmEtNzBlMy00NjQxLWI2ZjQtOGRkOGQ2NjIzOWZh&hl=en_US"><i>Final Judgment Granting Writ of Certiorari,</i></a> October 2002. Monroe County appealed to the Third District Court of Appeal, and lost. <i><span class="Apple-style-span" style="background-color: white;"><span class="Apple-style-span" style="color: blue;">Monroe County v. Galleon Bay Corporation</span></span></i>, 876 So. 2d 569, <i>writ denied, no opinion</i> (Fla. 3rd DCA, 2004).<br />
<br />
Meanwhile, in May 2002, Galleon Bay filed a regulatory taking lawsuit against Monroe County. The County third-partied the State of Florida, and Galleon Bay also sued the State after they became a party. Circuit Judge Richard Payne rendered an <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39OGJiOGRkNDItNDFiMS00YTNiLTk1OGYtMDY0ZjgzMmE5YWRh&hl=en_US"><i>Amended Order on Liability</i></a> on January 30, 2006. On April 18, 2006, Monroe County and the State of Florida filed a rather novel, <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39MjU0YWRmNzEtMWVhMS00ODlkLTg1OWMtYzZhNDQ5YThmZTY3&hl=en_US"><i>Petition for Writ of Prohibition</i></a> with the Third District Court of Appeal. The petition is so off-the-wall that I always suggest attorneys read it, if only for laughs. The District Court denied the petition, without oral argument, on June 2, 2006, four days before the jury trial was to begin. <i style="background-color: white;"><span class="Apple-style-span" style="color: blue;">State of Florida and Monroe County</span></i>, 930 So. 2d 627 (Fla. 3d DCA 2006). The jury trial on compensation was had June 6-10, and 12, 2006. The jury returned a verdict of $3,000,000.<br />
<br />
Galleon Bay's appraiser valued the subject property at $6,000,000, while the government's appraiser valued it at $250,000. Galleon Bay had forcefully argued before, and during, trial that the government's appraiser should not be allowed to testify, as his appraisals were nonsensical. All the jury did was split the difference. Galleon Bay moved for a new trial, which was granted. <i><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39YWZiZGMxNjUtYzM3Yy00NzNmLWI3MjYtNDNlNGIxMTE3ZTBl&hl=en_US">Order Granting Motion for New Trial</a></i>. The County and State appealed the new trial order and lost. <i><span class="Apple-style-span" style="color: blue;">Monroe County et al. v. Galleon Bay Corporation</span></i>, 954 So. 2d 1169, <i>per curiam affirmed</i>, (Fla. 3d DCA 2007).<br />
<br />
Circuit Judge Richard Payne retired at the end of 2006, and his successor rolled the clock back to before January 30, 2006, invalidating Judge Payne's January 30, 2006, liability order. In light of the fact that this successor judge also threw out four regulatory taking cases that were in front of him (Collins, Shands, McCole, and Beyer), and he was reversed in Collins, Shands, and Beyer, Galleon Bay filed a motion to disqualify the successor judge, as did Collins, Shands, and Beyer. Galleon Bay's regulatory taking case ended up with Circuit Judge Mark Jones - whose judicial experience is almost exclusively criminal law. Following a four-day bench trial on liability (as Judge Payne's January 30, 2006, liability order had been rescinded), Judge Jones entered an order, on April 27, 2011, dismissing Galleon Bay's regulatory taking case in its entirety. Galleon Bay has appealed that order, and its initial brief is due on January 4, 2012. For those with an interest in these matters, you may wish to read Judge Jones' <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39OGVlNjM3MTUtYzhiZi00YzE5LThjMjQtZmZlMjljNTlmODI1&hl=en_US"><i>Final Judgment in Favor of Defendants Denying Claim for Inverse Condemnation</i></a>.<br />
<br />
Twenty years is not the end of it all. There will be more to come.</div><div style="text-align: justify;"><br />
</div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-54376725958557633322011-11-19T01:37:00.004-05:002011-11-19T10:55:41.074-05:00Florida's Trial Judges Should be Appointed, Not Elected<div style="text-align: justify;">There are good state trial judges in Florida, and there are bad ones. However, all of them are elected -- not appointed as state appellate judges and all federal judges -- are. I have been a trial and appellate lawyer in Monroe County (the Florida Keys) since 1983. Over those 28 years, I have appeared before good, and not-so-good, judges. I have also appeared before state appellate judges, and it is my firm conviction that electing trial judges is a bad idea. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">Being an attorney is a second career for me -- and there are days when I wish I had never switched. From 1963 to 1970, I earned BS, MS, and PhD degrees from the University of Michigan. From 1966 through 1984, I published 50 peer-reviewed papers and reports. I published my first book in 1971, on the surface chemistry of activated carbon, and edited nine books on chemistry instrumentation from 1972 to 1981. In 1979, I graduated from George Washington University law school, in the top 5% of my class. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">Monroe County has four Circuit judges and four County judges. Over the years, some Circuit judges have developed specialties such as criminal or probate matters. That works in Key West, where there are three Circuit Judges. Occasionally, the voters have elected judges who don't have the patience a judge needs, or do not take the time to learn a field of law that is in front of them. One of the best we ever had was Steve Shea, who did his own research and spent nights writing well reasoned decisions. However, Judge Shea irritated his colleagues to the point where they ran him off the bench. (Steve Shea passed away last year, from kidney cancer.)</div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;">I do not believe that Monroe County's trial judges are any different from those in the rest of Florida -- and they may well be better. What I do believe is that the parties, and counsel, who appear before Florida's trial judges are entitled to a higher level of quality than the haphazard situation we have now. Florida's appellate judges are appointed by the Governor. As far as I can tell from 24 years of appellate practice, our appointed judges are well-vetted by their peers. I realize this is an issue in many States, not just in Florida, but there is just no way to "vet" every lawyer who puts up signs before election day. </div><div style="text-align: justify;"><br />
</div><div style="text-align: justify;"><br />
</div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-39684335805883441012011-05-15T22:03:00.009-04:002011-05-15T22:16:19.852-04:00The Galleon Bay TragiComedy<div style="text-align: justify;">I cannot explain how a trial judge could enter the judgment that 16th Judicial Circuit Judge Mark Jones rendered in <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39YWZiYzk0ODMtOGRjNC00MmZjLWI0NDItMzhlODVhMmQ3M2Jm&hl=en">Galleon Bay Corporation v. Monroe County</a>, et al</em>., on April 27, 2011. This is the most extraordinary trial court decision I have ever seen --- and I've seen a lot in my 30 years of practicing law --- but this one takes the cake.</div><div style="text-align: justify;"><br />
There is no doubt that Judge Jones is a very good trial judge. But his experience has been dominated by hundreds of criminal cases, where the government rarely loses. Before sitting down to write this blog entry, I pulled a Lexis-Nexis listing of every appellate decision in Judge Jones' career -- from June 11, 1997, through April 20, 2011. In 14 years on the bench, Judge Jones' decisions have been appealed 140 times. But for a few exceptions, he has rarely been reversed in his criminal appeals.<br />
<br />
Judge Jones' appellate affirmances at the 3rd District Court of Appeal are impressive, but it is unlikely that his criminal successes will carry over into eminent domain law. He has never had to decide such a case, and nobody should be surprised when this <span id="goog_1511950603"></span><em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39YWZiYzk0ODMtOGRjNC00MmZjLWI0NDItMzhlODVhMmQ3M2Jm&hl=en">Galleon Bay<span id="goog_1511950604"></span></a></em> decision is reversed.</div><div style="text-align: justify;"></div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-19034688363506578402011-04-24T23:52:00.232-04:002011-05-15T21:04:48.085-04:00Collins Liability Trial Concluded April 14, 2011<div style="text-align: justify;">The liability trial in <i>Collins, et al. v. Monroe County & State of Florida</i>, was heard over nine days, from April 4-14, 2011, in Key West. When the <i>Collins</i> case returned to the trial court in 2009, it was ultimately assigned to Circuit Judge Tegan Slaton. Judge Slaton knocked out three of the eleven plaintiffs, and those three plaintiffs have filed their Notices of Appeal. In the nine trial days during April 2011, Judge Slaton heard testimony only on the issue of liability. (A compensation trial -- requiring a jury -- follows a finding of liability.)<br />
<br />
Judge Slaton acknowledged a complete lack of experience in regulatory taking litigation -- but he is a copious note-taker. He tasked the parties to submit proposed orders after the trial transcript is available, and expressed hope that he would issue an order before August of this year. The transcript has been delivered, and the proposed orders are due on June 6, 2011.<br />
<br />
[Edited May 14, 2011.] </div><div style="text-align: justify;"></div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-32947620172725559192011-03-26T00:03:00.286-04:002011-05-14T22:42:29.702-04:00April 4-14, 2011: Finally, a Trial in Collins v Monroe County<div style="text-align: justify;">[Edited May 14, 2011.] On December 31, 2008, the 3rd District Court of Appeal (DCA) reversed Circuit Judge David Audlin's 2007 dismissal of the 11-plaintiff <em>Collins</em> regulatory taking lawsuit. The Florida Supreme Court denied review July 16, 2009. After some judge-shifting, the liability trial was set by Circuit Judge Tegan Slaton, for April 4-14, 2011. Judge Slaton also dismissed three of the 11 plaintiffs before trial. The <em>Collinses</em> and <em>Magrinis</em> had received building permits -- but only after extensive delays. The <em>Schneider</em> heirs, according to Judge Slaton, "waited too long" to bring their taking claims (no statute of limitation argument here, just "you waited too long."). The Schneider heirs' claims are now being litigated by <em>Greg Riordan</em>, who is two generations removed from Mr. Schneider. These dismissals were appealed and are now before the 3rd DCA.<br />
<br />
<strong>A Little History:</strong> On January 3, 1997, the original 11 <em>Collins</em> plaintiffs started down this path when Mr. Tobin and I filed their petitions for <em>Beneficial Use Determinations</em> ("BUDs"). The 1997 BUD process was effective January 4, 1996. It was written by the Florida Department of Community Affairs (DCA) as part of the Florida Keys 1996 Comprehensive Plan. Technically, the language was adopted -- by rule -- by the Governor and Cabinet sitting as the Florida Administration Commission (ADCOM). We would note that the 1996 ADCOM rule was a huge improvement over the unconstitutional BUD process that the County -- and ADCOM -- adopted in 1986. For those who were not involved in the 1982-86 evolution of the first ADCOM Florida Keys Comprehensive Plan, it is worth reviewing the 1986 BUD regulation to understand why landowners did not utilize the 1986 BUD to obtain compensation for the loss of all beneficial use of their land. <br />
<br />
The 1986 BUD rule/regulation [this, too, had to be approved by ADCOM] required landowners whose property was <em>unbuildable</em> to: (1) make a "bona-fide attempt" to sell their post-1986 unbuildable property for no more than 40% of its pre-1986 Fair Market Value ("FMV"), and (2) if they found no buyers, these property owners would, <em>at best</em>, be entitled to compensation that would not exceed 40% of the land's pre-1986 FMV. The 1986 BUD rule/regulation was declared unconstitutional by Circuit Judge Richard Payne, in <em>Gonzalez v. Monroe County,</em> a lawsuit we initiated in 1988. Judge Payne's decision was affirmed by the 3rd DCA, with an opinion, in <a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39ZTI4Y2FlOTEtMmVmYS00Zjc4LWJlODYtNzRlY2VhYWEzZGUz&hl=en"><em>Monroe County v. Gonzalez</em>, 593 So. 2d 1143 (Fla. 3d DCA 1992)</a>. </div><div style="text-align: justify;"><br />
Ultimately, between 2002 and 2004, each of the <em>Collins</em> plaintiffs received a resolution, from the Monroe County Board of County Commissioners, stating that they had been "denied all beneficial use" of their subject properties. In 2004, they sued Monroe County for the just compensation they were entitled to under the United States and Florida Constitutions. On November 6, 2006, then-Chief Circuit Judge Richard Payne denied the County's and State's motions for summary judgment on liability. Unfortunately, Judge Payne was about to retire as of December 31, 2006, and this case was automatically assigned to newly-elected Circuit Judge David Audlin on January 1, 2007.<br />
<br />
Judge Audlin turned out to be the governments' greatest ally in 2007. After assuming the Circuit Judge seat left vacant by Chief Circuit Judge Richard Payne, David Audlin swept <em>all</em> regulatory taking cases off his docket within a year! Needless to say, we spent many months on the Audlin appeals. We sucessfully reversed Judge Audlin's dismissals in <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39MDI1YTNmMWItNzc0My00MjhkLWJmNTEtOTJjNzk4NTFlYjM3&authkey=CKnr97gI&hl=en">Collins v. Monroe County</a></em> and <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39OWUxNDUxOGUtYWJmZS00ZGRkLWFjYmQtNjhiZDdhN2Y4OTcy&hl=en">Beyers v. City of Marathon</a>.</em> At the same time, Pacific Legal Foundation ("PLF") successfully reversed Judge Audlin in <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39Y2E0NzVlNDYtMzdjMS00N2YyLWIxMzctMmJkNjFjZmE1ODNk&hl=en">Shands v. City of Marathon</a></em>. [We are in the process of taking over PLF's responsibilities in <em>Shands v. City of Marathon</em>, while PLF focuses on appellate practice.]<br />
<br />
So far, we have not been successful in reversing Judge Audlin's decision in <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39NmNhODkyMzYtZWRmYy00OTQzLWE1OTUtNWMxMjRkMTk1YzUz&hl=en">McCole v. City of Marathon</a></em>, nor Judge Garcia's decision in <em><a href="https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B1Yt58mDGR39MzlhNjk5ODAtOTczNC00MDhjLWI2Y2QtNmEwZjZlNzJjMGI2&hl=en">Sutton v. Monroe County</a></em>. We believe these appeals were wrongly decided by the 3rd District Court of Appeal, but there are no longer any Florida courts in which we can continue these battles. There is a possibility, having exhausted State judicial remedies, that the <em>Sutton</em> and <em>McCole</em> cases can now be brought in a United States District Court under the United States Constitution. [At least U.S. trial judges do not have to worry about re-election.]</div>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-80994882396726547752010-12-31T22:15:00.002-05:002010-12-31T22:19:33.383-05:00Happy New Year<p$1><p$1>Well, it has been almost a year since I updated the <em>Grand Theft: Property</em> Blog. So a brief review of our regulatory takings cases in the Florida Keys appears to be in order.<br />
<br />
<p$1><p$1>I should point out that, in 2009, we spent about six months getting our <em>Collins</em> and <em>Galleon Bay</em> regulatory taking cases out of the hands of a pro-government trial judge, David Audlin. Judge Audlin had dismissed four regulatory taking cases in 2007 -- <em>Collins v Monroe County</em>, <em>Shands v City of Marathon</em>, <em>McCole v City of Marathon</em>, and <em>Beyers v City of Marathon -- </em>and Judge Luis Garcia dismissed a fifth case, <em>Sutton v. Monroe County</em>. On December 31, 2008, the Florida 3rd District Court of Appeal reversed Judge Audlin's dismissals of <em>Collins</em> and <em>Shands</em> -- but that still left <em>McCole</em>, <em>Beyer</em>, and <em>Sutton</em> to be decided.<br />
<br />
<p$1><p$1>The 3rd District Court of Appeal (3rd DCA) affirmed Judge Garcia's dismissal of the <em>Sutton</em> case on December 23, 2009. We were surprised by the 3rd DCA's decision because it was completely contrary to the<em> Collins</em> and<em> Shands</em> decisions of a year earlier. We filed a Motion for Rehearing in <em>Sutton.</em> That was denied May 25, 2010. We then filed a <em>Petition for Discretionary Review</em> with the Florida Supreme Court. That petition was denied on December 18, 2010 -- less than two weeks ago. There are some other options available to Mrs. Sutton, but I will leave that for another day.<br />
<br />
<p$1><p$1>The 3rd DCA's decision in <em>Beyers v. City of Marathon</em>, on June 9, 2010, was consistent with its earlier decisions in <em>Collins</em> and <em>Shands,</em> and the <em>Beyer</em> case was remanded to the trial court. However, the 3rd DCA rejected the <em>McCole v. City of Marathon</em> appeal on April 21, 2010, based upon its logic in the <em>Sutton</em> appeal.<br />
<br />
<p$1><p$1>This left us with successful appeals in <em>Collins</em>, <em>Shands</em>, and <em>Beyers</em>, but with completely contradictory decisions in <em>Sutton</em> and <em>McCole. </em>Because of the conflict, we filed petitions for discretionary review, in <em>Sutton</em> and <em>McCole</em>, before the Florida Supreme Court in mid-2010. Two weeks ago, on December 18, 2010, the Florida Supreme Court denied review in <em>Sutton</em> and <em>McCole</em>.<br />
<br />
<p$1><p$1>The only fact that distinguishes <em>Sutton</em> and <em>McCole</em> from <em>Collins</em>, <em>Shands</em>, and <em>Beyers</em>, from <em>Sutton</em> and <em>McCole</em> is that Ms. Sutton and the McColes "asked" if they might be able to develop their property many years ago, and were told that it was "unlikely" that they could do so. Neither Ms. Sutton nor the McColes requested a Beneficial Use Determination after being told development was "unlikely." In our opinion, this does not rise to the level of "ripeness" required by the U.S. Supreme Court in <em>Williamson County</em>. For that reason alone, we believe the<em> Sutton</em> and <em>McCole</em> decisions are wrong.<br />
<br />
<p$1><p$1>Ms. Sutton's and Ms. McCole's remedies are somewhat limited. Both can file regulatory taking claims in Federal court now that they have "exhausted State judicial remedies." The 3rd DCA, in a footnote, also invited Ms. Sutton to file a new building permit application. This, too, is an option.<br />
<br />
<p$1><p$1>It is fair to say that the status of regulatory taking claims in the Florida Keys remains somewhat unclear, even where the landowner has only informally sought a development order or building permit more than four years ago. At least this appears to be true in the minds of the appellate judges in Miami. Perhaps a Federal District Court decision to the contrary will change their minds.<br />
<br />
<p$1><p$1>In short, that's what we've been doing this past year. We are also moving forward on the <em>Collins</em> case, which is set for a liability trial in April 2011, and on the <em>Galleon Bay</em> case, another lawsuit that Judge Audlin screwed up during his reign in 2007. But ... more on those cases later this year.<br />
<p$1><p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1></p$1>James S Mattsonhttp://www.blogger.com/profile/07128066405097769255noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-27642948506705865112010-01-25T17:04:00.006-05:002010-01-25T21:07:11.505-05:00When will the Government Figure it Out?<div style="text-align: justify;">Three weeks ago, the State of Florida deposited $8.85 million with the Clerk of Court for Monroe County to compensate the landowners in <span style="font-style: italic;">Florida DEP v. West</span> for the condemnation of their North Key Largo properties in April 2004. When this eminent domain action was filed as a slow-take in 1995, the State offered a mere $160,000 for the subject properties. Our response to the slow-take was a regulatory taking counterclaim. That was our way to protect landowners from the State "walking away" from any jury verdict it did not like.<br /></div><br /><div style="text-align: justify;">Land values began to rise in 2001 -- although not on these properties. In 2004 the State opted for a "quick-take." At that time, the State's estimated fair market value of the two parcels -- based on the confiscatory regulatory scheme -- was $630,000. But after executing the quick-take, the State could no longer walk away from a jury verdict that exceeded its budget. After all, nobody had been able to build on North Key Largo since February 8, 1982 (except at the Ocean Reef Club and a few existing subdivisions).<br /></div><br /><div style="text-align: justify;">After the 2004 quick-takes, we re-cast the regulatory taking counterclaim into a jury instruction on condemnation blight. Even though the Florida Supreme Court has embraced <span>condemnation blight</span> on at least two occasions, the State's in-house attorneys could not grasp the concept. Fortunately we had a trial judge, Luis Garcia, who understands government cannot prohibit a landowner from using his property, and then benefit from its own actions by driving down the property's acquisition cost. (In 2001, Judge Garcia ruled the same way in another case, <span style="font-style: italic;">Shadek v Monroe Count</span>y, where White & Case attorney Doug Halsey raised the same issues and Monroe County settled by paying $6 million in temporary taking damages.)<br /><br /><div style="text-align: justify;">So ... the government goes down for the count again! I have remarked, on numerous occasions, that the reason for this waste of money is nothing more than the "tyranny of the majority" in small, attractive, relatively well-to-do communities such as the Florida Keys. Those who already own homes in the Keys will do everything in their power to prevent others from doing so. To that end, the "got-miners" elect like-minded County Commissioners, who respond by prohibiting new development wherever they find it. It's a self-perpetuating, downward spiral, that could well -- unless reversed -- bankrupt every owner of developed property in the Keys.<br /><br />To got-miners: think about it!<br /></div></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-12374409418625852792009-12-07T21:10:00.007-05:002009-12-07T22:25:02.673-05:00Is the State Conceding its "Condemnation Blight" Battle in the Florida Keys?<div style="text-align: justify;">Last Wednesday, December 2, 2009, the Third District Court of Appeal denied the State of Florida's Motions for Rehearing & Conflict Certification in the "condemnation blight" case, <a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMThiNjcxNTgtNTVlYi00NWY5LThlOTktY2Q4NTgzNjcyYmIw&hl=en"><span style="font-style: italic;">Florida DEP v. West, et al</span>.</a><a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMThiNjcxNTgtNTVlYi00NWY5LThlOTktY2Q4NTgzNjcyYmIw&hl=en"> (original opinion affirming trial court)</a>, Case No. 3D08-3185. Two days later, on December 4, 2009, the State's trial/appellate counsel asked us to pick a date in January for the State to write the checks in this case.<br /></div><br /><div style="text-align: justify;">This suggests the State decided not to seek discretionary review from the Florida Supreme Court -- a wiser decision than their last one in <span style="font-style: italic;">Collins v. Monroe County & the State of Florida</span>. But, in <span style="font-style: italic;">Collins, </span>the State and County did not face the prospect of incurring almost $2,000 per day in interest costs, so they could waste the landowners' time and money at will.<br /></div><br /><div style="text-align: justify;">For those considering a "condemnation blight" attack on value-reducing land development regulations, consider the following. The State deposited $550,000 for Parcel 1 and $80,000 for Parcel 7, as its "good faith" fair market value estimates, in April 2004. The 2008 jury verdicts were $5,060,000 (Parcel 1) and $450,000 (Parcel 7) -- based on the April 2004 real estate market. These verdicts were 9.2 times (820% over) and 5.625 times (462.5% over) the 2004 "good-faith" estimates.<br /></div><br /><div style="text-align: justify;">The October 8, 2008, judgments included interest from 2004, bringing the just compensation values to $6,908,114 and $599,142, respectively, or $7,507,256. Presuming the case can be resolved by January 15, 2010, the State's appeal will add $682,398 in additional interest to the landowners' awards -- bringing their compensation up to $8,189,654, or 13 times the State's 2004 "good-faith" estimates (or, if you like your numbers inverted, the good-faith estimates were only 7.7% of the condemnation award, with interest).<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-36091623581486533962009-11-30T21:07:00.008-05:002009-11-30T22:53:15.310-05:00Confiscatory Land Use Regulations are Unconstitutional in Florida: It is Time For the Kill<div style="text-align: justify;">To the best of our knowledge, no local government in Florida -- other than Monroe County and its municipalities -- has ever been able to maintain confiscatory land development ("zoning") regulations. In 1984, the Florida Supreme Court held, in <span style="font-style: italic;">Dade County v. National Bulk Carriers</span>, 450 So. 2d 213, 216 (Fla. 1984) that "if a zoning ordinance is confiscatory, the relief available is a judicial determination that the ordinance is unenforceable and must be stricken."<br /></div><br /><div style="text-align: justify;">Government lawyers are wont to say that <span style="font-style: italic;">National Bulk Carriers</span> was overruled, <span style="font-style: italic;">sub silentio,</span> by the Supreme Court in <span style="font-style: italic;">First English Evangelical Church v. Los Angeles County</span>, 482 U.S. 304 (1987), but that does not seem to be the case. In <span style="font-style: italic;">Joint Ventures v. FDOT</span>, 563 So. 2d 162 (Fla 1990), a post-<span style="font-style: italic;">First English</span> Florida Supreme Court held unconstitutional a statute that allowed the FDOT to "freeze" <span style="font-style: italic;">all</span> development, for up to five years, and for a second five years if it wished, by recording a "reservation map" in the county records.<br /></div><br /><div style="text-align: justify;">The 1990 supreme court invalidated Florida's "reservation map" statute, on Due Process grounds, after comparing its effect to the "condemnation blight" case of <span style="font-style: italic;">Bd. of Commissioners v. Tallahassee Bank</span>, 1o8 So. 2d 74, 86 (Fla 1st DCA 1958), <span style="font-style: italic;">writ quashed</span>, 116 So. 2d 762 (Fla 1959), stating "We perceive no valid distinction between "freezing" property in this fashion and deliberately attempting to depress land values in anticipation of eminent domain proceedings. Such action has been consistently prohibited."<br /></div><br /><div style="text-align: justify;">In <span style="font-style: italic;">Joint Ventures</span>, the supreme court sealed the fate of the Florida Keys' "Beneficial Use Determination" ("BUD") ordinances, when responding to FDOT's argument that "the property owner can always sue in inverse condemnation," as follows.<br /></div><blockquote></blockquote><div style="text-align: justify;"><blockquote>DOT contends that Joint Ventures' right to seek compensation through inverse condemnation cures the statute's failure to expressly provide for compensation. We disagree. ... [T]hat remedy is not equivalent to a property owner's remedy under the doctrine of eminent domain. Inverse condemnation affords the affected property owner an after-the-fact remedy, when there has already been a "taking" by regulation, and it is not a substitute for eminent domain protection facilitated by chapters 73 and 74 [Fla. Stat.]<br /><br />The property owner who must resort to inverse condemnation is not on equal footing with an owner whose land is "taken" through formal condemnation proceedings. The former has the burden of seeking compensation, must initiate the inverse condemnation suit, and must finance the costs of litigation without the procedural protections afforded the condemnee.</blockquote></div><div style="text-align: justify;">In <span style="font-style: italic;">Joint Ventures</span> (1990), as in <span style="font-style: italic;">National Bulk Carriers</span> (1984), the Florida Supreme Court held the "reservation map" statute unconstitutional on Due Process grounds.<br /></div><br /><div style="text-align: justify;">Fast forward to today. If it were not for the Keys' governments' "beneficial use" ordinances, many of these local land use regulations would have been declared unconstitutional 23 years ago. But let's take a look at those ordinances in the context of <span style="font-style: italic;">National Bulk Carriers</span> and <span style="font-style: italic;">Joint Ventures</span> -- the law in Florida.<br /></div><ul><li style="text-align: justify;">Not one of the Keys' BUD ordinances provides for the acquisition of a landowner's property by the exercise of eminent domain, if the property has been rendered unbuildable by the local government's zoning regulations. A first-year law student could see this is a Due Process violation that renders the underlying confiscatory regulations unconstitutional.</li><li style="text-align: justify;">Monroe County recently raised the "application fee" for a Beneficial Use Determination to almost $5,000. This is reminiscent of the $2 "poll tax" cases of the '60's. Is it remotely possible that a local government can assess the owners of land within its boundaries a "poll tax" of $5,000? If the government cannot assess a $2 fee for the right to vote, it cannot assess a $5,000 fee for the right to Just Compensation. Or any fee, for that matter.</li></ul><div style="text-align: justify;">There is a solution to this madness, and we are about to undertake it. We will soon file an action in the United States District Court for the Southern District of Florida, on behalf of several non-resident owners of Florida Keys property -- under the Federal court's "diversity jurisdiction" -- against the local governments and certain Florida state officials, to invalidate major portions of the Florida Keys' local government comprehensive plans and land development regulations, on Due Process grounds and Florida law.<br /><br /><div style="text-align: justify;"><span style="font-style: italic;">Postscript:</span> This situation reminds me of Pogo, who would say "we have met the enemy, and it is us." The reason the Florida Keys is up to its neck in "just compensation" liabilities is the classic <span style="font-style: italic;">tyranny of the majority</span> problem. The people who own developed property in the Keys, and vote there, simply do not want anyone else to build anything within their driving radius. These cluckheads, who elect like-minded cluckheads to the County Commission and municipal Councils, have not yet figured out that they will be paying the bills for this fiasco for decades to come.<br /></div></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-50959170919163668082009-11-03T19:00:00.003-05:002009-11-03T19:22:19.693-05:00Has the Tide Turned?<div style="text-align: justify;">Since 1986, the Florida Keys' confiscatory land use regulations have been imposed only on owners of undeveloped land. Two-thirds of those landowners reside outside the Florida Keys. They have no right to vote on the "got-miners" choices for the County Commission. Since the got-miners' "rate-of-growth" ordinance was imposed on the Keys in 1992, vacant landowners have been selling their property to the government at rock-bottom prices that rarely reached 15% of Fair Market Value.<br /></div><br /><div style="text-align: justify;"> In 1996, Andy Tobin and I sent <span style="font-style: italic;">Voice of Reason</span> newsletters to just over 10,000 owners of undeveloped Keys' properties. Today there are only 4,000 such owners. The Keys' rate-of-growth ordinances have limited development to under 250 building permits/year since 1992 -- or less than 3,750 dwelling units in 17 years. This suggests about 2,250 parcels have been sold to government at unfair prices.<br /></div><br /><div style="text-align: justify;"> Now that the <a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMThiNjcxNTgtNTVlYi00NWY5LThlOTktY2Q4NTgzNjcyYmIw&hl=en"><span style="font-style: italic;">Florida DEP v. West, et al</span>., decision</a> has been released by the 3d District Court of Appeal, perhaps the remaining 4,000 owners of undeveloped Keys' land will realize that the State has been acquiring Keys' property -- for 17 years -- for about 10% of Fair Market Value. The 3d District Court of Appeal will issue its "mandate" on the <span style="font-style: italic;"><a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMThiNjcxNTgtNTVlYi00NWY5LThlOTktY2Q4NTgzNjcyYmIw&hl=en">West</a> </span>decision in two days (November 5th), and we assume the State is not dumb enough to lose another half-million dollars in interest on a high-risk petition for "discretionary review" by the Florida Supreme Court (only 11% are accepted for "review;" substantially fewer actually result in a reversal).<br /><br />[This post replaces an earlier post.]<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-36116585584769207342009-10-21T12:50:00.005-04:002009-10-22T11:01:28.202-04:00Landowners' Condemnation Blight Judgments Affirmed<div style="text-align: justify;">Today, Florida's Third District Court of Appeal affirmed the trial court's judgments in <a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMThiNjcxNTgtNTVlYi00NWY5LThlOTktY2Q4NTgzNjcyYmIw&hl=en"><span style="font-style: italic;">Florida DEP v. West, et al</span></a>, awarding nearly ten times the State's "good-faith" deposits when it condemned two North Key Largo properties in 2004. The trial (and chief) judge, Luis Garcia, should be pleased with his decision to require the jury to consider the "highest and best use" of these properties as of February 8, 1982 -- the last day they were "buildable" -- but valued in the 2004 real estate market.<br /><br />Judge Garcia found, on the testimony of two former County Commissioners from the early 1980's, and from the voluminous paper trail, that Monroe County was made an "offer it couldn't refuse" in 1982, and again in 1986, and so on until the present day. Former Governor Bob Graham got his conservation land back in '82 ... but these landowners have yet to be paid, in 2009. Though the State DEP could seek "discretionary review" from the Florida Supreme Court, the odds of getting such a review are slim, and the State is running up interest to the tune of $1,468 per day. As of this date, the State's appeal has added $556,247 to the Landowners' compensation (at 11%/year, they should appeal forever).<br /><br />All in all, this was a good day for those Florida Keys' landowners who have rebuffed the governments' 10-cents-on-the-dollar offers for all these years. For more details, see the <a href="http://www.mattsonlaw.com/litigation/condemnation_blight/west_richardson/west_richardson.htm">West-Freeman section</a> of my website.<br /><br />(Edited 10/22/2009 to include interest information.)<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com1tag:blogger.com,1999:blog-7230745585446824376.post-19850715760647860802009-10-08T00:36:00.005-04:002009-10-08T01:58:05.327-04:00It Could Be a Busy 4th Quarter<div style="text-align: justify;">After three weeks away from the pressure of brief-writing -- not to mention the stress of moving our pending regulatory taking and due process lawsuits -- it is a bit easier to cope. I did spend some of that downtime (at least an hour) thinking about what can be done to bring the Keys' land use regulations in line with those of a civilized society. Like the South of France. Not likely, that.<br /><br />That raises a question: what civilized society would we like to emulate? California? There's a basket case, where affordable housing exactions are killing potential housing projects, and the state budget is a joke. How about Miami, Naples, or Fort Lauderdale? They have too much of everything, and the high vacancy rates to go with it.<br /><br />Has anyone else noticed that Florida local governments (including the Keys) spent taxpayers' money like drunken sailors in the 2001-06 run-up? And now they're stuck with overpaid administrators and pension obligations that they will never be able to meet. OK, there's a goal.<br /><br />First, fire half the County staff, starting with those who draw the largest paychecks. I challenge anyone to explain why we need a County Administrator when we have a County Commission that consists of five geniuses, all of whom are former (or future, because they are so smart) Nobel Prize winners. We could also do away with the County Attorney position, as all five Commissioners are more versed in the law than any attorney could possibly be. And the entire planning department could be let go, as there is nothing left to plan.<br /><br />In the Keys, the City of Marathon cannot give away its building permits. The "village" of Islamorada was (correctly, I might add) deemed "charm-less" by United States District Judge James Lawrence King, and it is being sued by its former mayor, and a bunch of other people, over its sewer impact fees. Key West is, well, Key West. Monroe County may well be the only county in Florida where the population <span style="font-style: italic;">decreased</span> over the 2000-2010 decade. Trust me, we will not get a merit badge for that statistic.<br /><br />So ... are things good in the Keys? No. We have had several years of over-building, in large part because the State and County superseded the market, so every person who could, built a house. We now have a queue as long as my arm, of people who definitely do NOT want to build here. (The reason people wanted to build here was that "it was difficult.") We have had an artificial market here for 17 years, and it finally folded. Do we have a problem? Yes.<br /><br />Do we need to change the regulatory climate in the Keys? Yes.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-59229024590949651182009-09-29T02:29:00.003-04:002009-09-29T02:47:46.947-04:00On Vacation<div align="justify">Just a note to let you know Rana and I have been traveling in Italy and France since September 17th. We spent our first week in Venice, Italy, where Rana attended an oceanographic conference. At the moment, we are visiting with an former colleague from graduate school days, Stanley Pons, in the Italian Maritime Alps. We are in a perched, very old, village (Corte) about an hour from the Mediteranean coast, and about two hours from Nice, France. (Our hosts also have dsl internet access and a WiFi network in their ancient, stone, summer home.) We expect to be home on October 2nd, and will be back to work by October 5th. Ciao!</div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-84192265534898663362009-09-09T22:03:00.003-04:002009-09-09T22:57:20.028-04:00Nollan-Dolan Exactions May See More Play<div style="text-align: justify;">Since 1976, the State of Florida and the Monroe County (Florida Keys) Commission have imposed ever-increasing restrictions on the use of Florida Keys property -- using regulatory authority to confiscate private property without paying Just Compensation -- on the fuzzy theory that this will somehow better the universe (at no cost to the State and County taxpayers). The major shift took place on September 15, 1986, when the State "approved" a confiscatory comprehensive plan (that was written by the State) that prohibited the development of thousands of legally-platted lots within the Florida Keys, and downzoned thousands more.<br /><br />In 1987 and 1994, the Supreme Court issued two regulatory taking opinions that did little more than muddy the waters. The 1987 decision, <span style="font-style: italic;">Nollan v. California Coastal Commission</span>, 483 US 825, stemmed from a request for a building permit to rebuild the Nollans' oceanfront property with a larger residence. The California Coastal Commission acquiesced on the condition that the Nollans dedicate a portion of their property as a "viewing easement," that would allow passers-by to see the ocean from the street in front of the Nollans' home. Though many landowners had caved in to the Coastal Commission's demands, the Nollans sued, claiming the easement was an unconstitutional exaction. The Supreme Court agreed, explaining that a permit "condition" must be related to the "impact" of the development approved by said permit. In <span style="font-style: italic;">Nollan</span>, the Supreme Court could not see a connection between the enlargement of the Nollan's home, and the need for passers-by to see the ocean.<br /><br />In their 1994 decision. <span style="font-style: italic;">Dolan v City of Tigard</span>, 512 U.S. 374, the Supreme Court supplemented the <span style="font-style: italic;">Nollan </span>"connection," with a <span style="font-style: italic;">Dolan </span>"proportionality" requirement for exactions imposed on private property owners. The <span style="font-style: italic;">Dolan </span>decision has always been difficult to articulate. However, the 2006-2008 Utah Supreme Court has done a nice job explaining <span style="font-style: italic;">Dolan</span>.<br /><br />In B<span style="font-style: italic;">.A.M. Development v. Salt Lake County (I)</span>, 128 P. 3d 1161 (Utah 2006), and <span style="font-style: italic;">B.A.M. Development v. Salt Lake County (II)</span>, 196 P. 3d 601 (Utah 2008), the Utah Supreme Court reduced the <span style="font-style: italic;">Dolan </span>"proportionality" requirement to dollars. In short, if the cost to the taxpayer exceeds the costs of its improvements (to the public), the taxpayer has been impermissibly overcharged. The difference is a Fifth Amendment taking.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-87469727578270612952009-08-17T21:02:00.010-04:002009-08-18T00:01:13.846-04:00The Key Deer Habitat Conservation Plan (HCP) is Invalid for Non-compliance with the Information Quality Act.<div style="text-align: justify;">The Florida Key deer were listed as an endangered species in 1967. Since then, the herd has increased in numbers and the individual deer have become heavier and healthier today than they were in 1970. <span style="font-style: italic;">See </span>Harveson, <span style="font-style: italic;">et al</span>., "Impacts of urbanization on Florida Key deer behavior and population dynamics," 134<span style="font-style: italic;"> Biological Conservation</span> 321-331 (2007), available at <a href="http://www.sciencedirect.com/">http://www.sciencedirect.com</a>. Harveson, <span style="font-style: italic;">et al</span>., concluded Key deer prefer urbanized habitat on Big Pine Key, and that, in 2003, they were 10% heavier than those living in 1973.<br /><br />On July 9, 2006, the State of Florida and Monroe County, which includes the Florida Keys, obtained an "incidental take permit" (ITP) from the U.S. Fish & Wildlife Service (USF&WS), ostensibly to protect the Key deer and the Playboy bunny (S<span style="font-style: italic;">ylvilagus palustris hefneri</span>) from the ravages of human civilization. The <span>only </span><span style="font-style: italic;">"scientific" </span>basis for the ITP is an April 2006 <a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DOGQxYTdhYzctNDg3NS00MjM1LWEwMmUtOTdkMDM5NDczMWI2&hl=en">Habitat Conservation Plan (HCP)</a>, prepared by Monroe County and the State of Florida.<br /><br />The HCP relies solely on a chapter on population viability analysis (PVA), that the HCP's authors apparently lifted directly from Dr. Roel Lopez's 2001 Ph.D. dissertation, "Population Ecology of Florida Key Deer," Texas A&M University 2001. PVA calculations have become popular with conservation biologists, in part because there are at least five "canned" computer programs that will spit out apparent "results" without any regard for their accuracy -- or lack thereof.<br /><br />The consensus amongst the mathematically capable is that one cannot obtain reliable extinction probabilities unless one has collected 5 to 10 years of data for every year to be projected; <span style="font-style: italic;">i.e.</span>, to project survival probabilities 50 years in the future, one would need 250 to 500 years of field data on the species in question. (The answer is "no," he did not have adequate data to calculate a PVA.) Dr. Lopez's 50- and 100-year PVA projections are subject to such huge error ranges that the means (or medians, as in the dissertation) are meaningless. Ergo, we have a classic nonsensical theory, "garbage in, garbage out," and a herd of bureaucrats depriving thousands of humans of <span style="font-style: italic;">their </span>land and fortune (though the Key deer thrive in a developed environment).<br /><br />Fortunately, an obscure federal statute prohibits the use of "garbage in, garbage out" theories in federal programs. Sec. 515(a) of Pub. L. 106-554 (2001), requires all Federal agencies to develop policies and procedures for "ensuring and maximizing the quality, objectivity, utility, and integrity of information" produced by said agencies.<br /><br />Sec. 515(a) is known as the "Information Quality Act (IQA)," or by some agencies, the "Data Quality Act (DQA)." As OMB stated in its Federal Register Notice on the IQA regulations, 67 Fed. Reg. 8452-60 (Feb 22, 2002), when scientific information (data and analytical results) is relied on by a federal agency, "the original and supporting data shall be generated, and the analytical results shall be developed, using sound statistical and research methods."<br /><br />Data and analytical results <span style="font-weight: bold;">must be subjected to "peer review."</span> In the scientific community, peer review involves submitting one's research to a respected scientific journal, where a scientist-editor will select (usually three) reviewers who regularly publish papers in the same field as the paper to be reviewed, to critically review and comment on the submission. Comments flow back and forth among the author, the editor, and the reviewers, and the paper is ultimately either published, published as modified, or rejected.<br /><br />By now you have figured out that Ph.D. dissertations (including mine, in 1969) are not "peer reviewed," and do not qualify as "good science" under the 2001 Information Quality Act. Dr. Lopez purposely broke his dissertation into discrete chapters, each of which could stand on its own. He submitted individual chapters to scientific journals for peer review and, hopefully, publication. From 2002 through 2006, according to his <a href="http://irnr.tamu.edu/uniquebios/lopez.aspx">curriculum vitae</a>, Dr. Lopez was the senior author on five peer reviewed papers on Key deer, and a co-author on eight more. To his credit, NOT ONE of these 13 peer-reviewed papers (that's a lot!) mentions the PVA in his dissertation. I assume Dr. Lopez recognized the weaknesses in his computer-driven PVA, and published his strength, rather than canned PVA numbers.<br /><br />So what's next? A reasonable move would be a petition to the USF&WS to rescind the 2006 Incidental Take Permit. The Service's IQA rules require it to respond to such a petition within 90 days after receipt of a petition from an "affected person." The rules also provide for an internal appeal, submitted within 21 days of the initial decision, if petitioner is not satisfied with the Service's response. The appeal must be completed within 60 days. If a petitioner is not satisfied with that decision, he or she may bring an action, against the Service, in federal court.<br /><br /><br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-84997345350577271952009-08-10T01:16:00.004-04:002009-08-10T02:22:28.139-04:00Casitas Municipal Water District Revisited<div style="text-align: justify;">On May 10, 2009, I wrote about the Federal Circuit's decision in <a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMWRkN2Q5MWMtMDZlZC00ZTM5LTkyMDAtNGRlY2QyNDM0OTJm&hl=en">Casitas Municipal Water District v. United States</a>, where a local water district has successfully litigated a 5th Amendment taking claim against the United States for diverting water to provide a better life for endangered steelhead trout (and their human and wild predators, one may assume). I noted that the time to file a certiorari petition with the Supreme Court had not run. Well, that time has come and gone, and no petition was filed. The Solicitor General obtained two extensions of time to file the petition. The second extension expired July 17, 2009, and no petition was filed by the United States.<br /><br />It should come as no surprise that endangered species litigation usually goes to the critters (although sometimes the plaintiffs' motives are suspect, and the public wins). I cannot recollect a taking case where the critters' <span style="font-style: italic;">keepers </span>had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (<a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMWRkN2Q5MWMtMDZlZC00ZTM5LTkyMDAtNGRlY2QyNDM0OTJm&hl=en">Casitas </a>is a physical taking case, so watch out.)<br /><br /><a href="http://docs.google.com/fileview?id=0B7ElNDa-3H5DMWRkN2Q5MWMtMDZlZC00ZTM5LTkyMDAtNGRlY2QyNDM0OTJm&hl=en">Casitas</a> widens the open door for our class action on Big Pine and No Name Keys, where the Key deer and the Lower Keys marsh rabbits have been handed the keys to more than 1,000 vacant properties by none other than Monroe County, Florida. This confiscatory behavior extends to the rest of the Florida Keys, albeit with a less Draconian flair.<br /><br />The Federal Circuit's 2-to-1 decision rests on a "physical taking" theory (water, of course), and former Chief Judge Mayer hammered on that point in his "dissent-in-part." <span style="font-style: italic;">Casitas </span>will probably be most helpful in those situations where landowners cannot use <span style="font-style: italic;">any </span>of their property -- thus establishing a <span style="font-style: italic;">Lucas</span>-style categorical (or <span style="font-style: italic;">per-se</span>) taking. What <span style="font-style: italic;">Casitas </span>adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."<br /><br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-17755550817076138812009-08-05T21:52:00.004-04:002009-08-06T07:10:49.627-04:00Reverse Endangered Species Act Claim<div style="text-align: justify;">In a comedic regulatory taking "defense," government counsel opposing our client's regulatory taking claim in <span style="font-style: italic;">Galleon Bay Corp. v. Monroe County & the State of Florida</span>, are attempting to pin the tail on the federal government donkey, arguing "the US Fish & Wildlife Service made us do it."<br /><br />Most land use attorneys know the USF&WS abhors "regulatory taking" issues because it doesn't have the money to buy "regulatory condemned" property and, if it were to do so, the F&WS would pay for the property out of the agency's regular budget. That means salaries and overhead suffer if a taking claim occurred. So ... what is going on here?<br /><br />Apparently, the Monroe County Attorney, <span style="font-weight: bold;">Suzanne Hutton</span>, and Florida's Attorney General (and gubernatorial candidate), <b>Bill McCollum,</b> never got it. We have been served with a motion to dismiss, based on those politicians' nonsensical theory that the USF&WS "took" the subject property (on No Name Key) by "requiring" the County and State to apply for an Incidental Take Permit ("ITP") for the widening and fencing of US-1 on Big Pine Key, in Monroe County, Florida (the Florida Keys).<br /><br />Just to bring everyone up to speed, the Endangered Species Act (ESA, adopted in Richard Nixon's administration) places burdens on government, not private sector, activities that affect listed species. Private development activities are not subject to the ESA, but landowners can apply for an ITP if they are concerned about the survival of an endangered species after their project has been completed.<br /><br />As no landowner is required to apply for an Incidental Take Permit (ITP), no ITP is required for a private developer to build homes on No Name Key -- which already has nearly 60 homes -- or anywhere else, for that matter. Thus, there is no federal law or regulation that requires owners of Galleon Bay lots to obtain an ITP.<span style="font-weight: bold;"></span> Monroe County and the State took it upon themselves to obtain an ITP for the hundreds of vacant lot owners on Big Pine and No Name Keys, for the sole purpose of acquiring those parcels at fire-sale prices.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-30241411833494055982009-07-17T09:59:00.003-04:002009-07-17T10:52:37.805-04:00Government Denied Review by Florida Supreme Court in Collins v Monroe County<div style="text-align: justify;">Yesterday, the Florida Supreme Court denied the governments' petition for discretionary review in <span style="font-style: italic;">Collins, et al v. Monroe County & the State of Florida</span>, 999 So. 2d 709 (2008), <span style="font-style: italic;">rev. denied</span> (Fla. 7/16/2009). The governments' argument -- that Monroe County's Beneficial Use Determination administrative procedure did not trump prior Florida ripeness decisions of the 1st and 4th DCAs -- was without merit. The supreme court saw no conflict between the 3rd DCA's decision in <span style="font-style: italic;">Collins </span>(BUD ripens) and the ripeness decisions in jurisdictions with no BUD (or similar) administrative process.<br /><br />As Florida's "discretionary review" process is not an "appeal," the 90-day clock for appealing to the United States Supreme Court ran out on May 20, 2009.<br /><br />The denial of review was rendered only 66 days after the last brief was filed -- which is 26 days quicker that the 92-day average for all review denials in the past 12 months. The result was hardly in doubt. Only 11% of 9,874 petitions for discretionary review were granted by the Florida Supreme Court in the 10 year period 1990-99, and there is no reason to believe anything has changed since the 1990's. If a horse in the Kentucky Derby had an 89% probability of success, a lot of people would bet on it. (Or maybe not, because the payout would be so low.)<br /><br />As an aside, we note that the supreme court also awarded attorneys' fees to the plaintiffs (landowners).<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-12980545859198684852009-07-12T21:34:00.003-04:002009-07-12T22:07:07.201-04:00They're Taking our Kodachrome Away<div style="text-align: justify;">After a 74-year run, Kodak has decided to stop producing Kodachrome film. The only remaining processor of Kodachrome has announced it will process the film until the end of 2010. For me, Kodachrome is the benchmark upon which all color film -- and digital -- images will be measured. (<a href="http://www.bhphotovideo.com/c/find/newsLetter/Kodachrome1935-2009.jsp">Click here</a> for a more detailed analysis of the Kodachrome phenomenon.)<br /><br />Kodachromes, as the song goes, do not fade (or at least do not fade after 74 years), as do the other (E-6) "chromes." I have Kodachrome aerial photos of my oil spill adventures in the 1970's, as well as hundreds of Kodachromes that refuse to fade while their E-6 counterparts have faded into pastels of their former selves.<br /><br />I have been stashing rolls of Kodachrome for the past year, anticipating this day, and hope to shoot some more photographs in our National Parks before time runs out. So, if you begin to see gaps in my blog coverages, they are most likely related to the December 2010 end of Kodachrome.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-39936003283609068462009-06-28T18:41:00.005-04:002009-06-29T09:39:00.219-04:00Oral argument in Condemnation Blight case<div style="text-align: justify;">Oral argument was had Monday, June 22nd, in Key West, before Florida's Third District Court of Appeal, in the Condemnation Blight case of <span style="font-style: italic;">Florida DEP v. West, et al</span>., that resulted in a $6.9 million judgment for two parcels that the state "quick-took" for $630,000 in 2004. (Details on <a href="http://www.mattsonlaw.com/pagetwo.htm">MattsonLaw.com</a>) The panel included Chief Judge Gersten and District Judges Suarez and Rothenberg. Judges Gersten and Suarez were on the panels in <a href="http://www.mattsonlaw.com/litigation/regulatory_takings/collins/background.htm">Collins v. Monroe County</a> and <span style="font-style: italic;">Shands v City of Marathon</span> one year ago (June 30, 2008). The Landowners prevailed in both <span style="font-style: italic;">Collins </span>and <span style="font-style: italic;">Shands</span>, and Judge Suarez signed both opinions.<br /><br />It was obvious that Judge Rothenberg had read the briefs. She came out of the box at the State's attorney (for whom this was the first appeal he had ever briefed or argued) when he presented his theory that "this is not 'condemnation blight,' but was a regulatory taking in 1982." Judge Rothenberg punctured the State's balloon when she referred to the holding in <span style="font-style: italic;">Tahoe-Sierra</span> -- that moratoria are "temporary takings," and that temporary takings do not accrue until they end. So much for the State's statute of limitations theory.<br /><br />The <span style="font-style: italic;">West </span>case is a superb example of condemnation blight. We thank Gideon Kanner for his life's work in this area. Most Florida Keys condemnation cases have been "lightly defended" by mainland Florida eminent domain lawyers (with one major exception, Doug Halsey), who had no clue what happened from 1982 forward. However, as Senior District Judge Alan Schwartz said in one of our oral arguments several years ago, "the courts don't exist to protect people from the use of their pens." We realize most owners of condemned Florida Keys properties could have used the condemnation blight strategy we used in this case, but their attorneys were unfamiliar with the facts on the ground.<br /><br />Chief Judge Gersten asked both sides if they considered the State's theory of the case "fair." My response is obvious. The State's response was "I will not say this is fair, but we are governed by laws."<br /><br />One of those laws is the Fifth Amendment to the United States Constitution, and that "law" requires the government to act in a fair and equitable manner when it condemns property (or does anything else). Keep checking back to learn how this comes out. The <a href="http://www.3dca.flcourts.org/Opinions/Opinions.shtml">Third District Court of Appeal</a> releases its decisions on Wednesdays, at about 10:30 AM.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-83705915726677322992009-06-08T11:31:00.005-04:002009-06-16T13:14:04.644-04:00U.S. Supreme Court disqualifies W Va Supreme Court Justice on due process grounds<div style="text-align: left;"><div style="text-align: justify;">Today, in an astounding decision -- not because it was unexpected, but <span style="font-style: italic;">because all four "conservative" Justices dissented</span> -- the Supreme Court reversed a West Virginia Supreme Court's decision because one Justice refused to recuse (disqualify) himself. <span style="font-style: italic;">See </span><a href="http://www.law.cornell.edu/supct/html/08-22.ZS.html">Caperton v. A. T. Massey Coal Co., Case No. 08-22 (U.S., June 8, 2009)</a>.<br /></div><br /><div style="text-align: justify;">For those who missed the news coverage of this case, Caperton obtained a $50 million judgment against Massey. Massey appealed to the W. Va. Supreme Court. Meanwhile, one Brent Benjamin was challenging an incumbent Justice seeking re-election. Massey Coal's chairman, Don Blankenship, contributed $3 million to Mr. Benjamin's campaign. Mr. Benjamin was successful, and became Justice Benjamin. (Note added June 16: Only $1,000 went directly into Mr. Benjamin's campaign account, the other $2.999 million was spent on advertising on Mr. Benjamin's behalf.)<br /></div><br /><div style="text-align: justify;">Caperton moved to disqualify Justice Benjamin, and the Justice refused to recuse himself. The supreme court reversed Caperton's $50 million judgment,on a 3-2 vote. One dissenter, Justice Starcher, wrote:<br /></div><div style="text-align: justify;"><blockquote>The majority opinion is morally wrong because it steals more than $60 million dollars from a man who was the victim of a deliberate, illegal scheme to destroy his business. The majority opinion is legally wrong because it uses erroneous legal reasoning to justify an immoral result.<br /></blockquote></div><div style="text-align: justify;">The supreme court vacated its first effort and re-heard the case. Two Justices (including Starcher, J.) disqualified themselves. They were replaced by two trial court judges. The result was the same, 3-2 in favor of Massey. Three months later, Justice Benjamin released a 98-page concurring opinion that attempts to justify his refusal to disqualify himself.<br /></div><br /><div style="text-align: justify;">The Supreme Court granted certiorari, and oral argument was held on March 3, 2009 -- just three months ago. The Court's swing-vote, Justice Kennedy, delivered the opinion, joined by Justices Stevens, Souter, Ginsburg, and Breyer. I've posted a link to the Court's opinions (Justices Roberts and Scalia filed dissenting opinions), and if you can read this you can read the opinions.<br /><br />The dissents of Justices Roberts, Scalia, Thomas, and Alito are disturbing. While we are seeing a fair amount of conservative hand-wringing over Judge Sotomayor's nomination to the Supreme Court, we should not forget that "conservative" judges often side with the government -- except in land use cases, thank goodness. Judge Sotomayer would at least keep the balance when other (non land-use) Constitutional rights are at stake.<br /></div><br /><div style="text-align: justify;">Suffice it to say that the Supreme Court's decision in <a href="http://www.law.cornell.edu/supct/html/08-22.ZS.html">Caperton v. Massey</a> adds weight to the judicial disqualification process throughout the state and federal courts, in its renewed application of the Due Process Clause, in addition to statutory criteria, to support motions to disqualify judges.<br /></div><br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0tag:blogger.com,1999:blog-7230745585446824376.post-2868034656281525642009-05-22T20:53:00.006-04:002009-06-03T04:55:06.713-04:00Condemnation Blight Oral Argument Set<div style="text-align: justify;">For those who can get to Key West on June 22, 2009, Florida's 3rd District Court of Appeal has scheduled oral arguments that day in <span style="font-style: italic;">Florida v. West, et al</span>., in the new Key West courthouse. This is the 2008 "<a href="http://www.mattsonlaw.com/litigation/condemnation_blight/west_richardson/pdf_files/2007-04-09_condemnation_blight_order.pdf">condemnation blight</a>" decision that required the State to pay ten times its "good faith deposit," in 2004, for two parcels of land on North Key Largo that have been under a development moratorium since February 9, 1982!<br /><br />Updated May 31, 2009. Please check our website, <a href="http://mattsonlaw.com/">http://mattsonlaw.com</a>, to read the briefs before you make the trek to Key West. The State's <a href="http://www.mattsonlaw.com/litigation/condemnation_blight/west_richardson/pdf_files/2009-02-09_state_initial_brief.pdf">Initial Brief</a> is available, as is our <a href="http://www.mattsonlaw.com/litigation/condemnation_blight/west_richardson/pdf_files/2009-05-29_ae_answer_brief.pdf">Answer Brief</a>, on the website. The State's Reply Brief is due on or before June 15, 2009.<br /></div>Jim Mattsonhttp://www.blogger.com/profile/01272763796397716802noreply@blogger.com0