Is FEMA Forcing Monroe County to Pay Millions for Regulatory Takings as the Price of Maintaining Flood Insurance in the County?

On Christmas Eve 2011, the Florida Keys Keynoter published an article entitled "County to Sue FEMA Over Habitat Inspections." 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. 

In that case, the Key Deer, through their human spokesman, sued to prohibit 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.

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." See Florida Key Deer, et al. v.Stickney, 864 F. Supp. 1222 (DC SD Fla., 1994).

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. 

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).

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. See Florida Key Deer, et al, v. Brown, et al., 386 F. Supp. 2d 1281 (DC SD Fla. 2005), affirmed, 522 F. 3d 1133 (11th Cir., 2008).

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 Florida Key Deer v. Brown, supra, 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 amicus in the 11th Circuit's appeal of Judge Moore's 2005 decision.

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.

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.

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:

"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:

• "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."

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.

On that note, I wish everyone a Happy New Year! (And it lies less than an hour away.)

The Galleon Bay Case

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.

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 commercial fishing village, 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.

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 commercial fishing village just two years earlier.

After its first fiasco with DCA, Galleon Bay requested a change in zoning to improved subdivision, 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.

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.

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.

Galleon Bay went through a (statutory, 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.

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. See Final Judgment Granting Writ of Certiorari, October 2002. Monroe County appealed to the Third District Court of Appeal, and lost. Monroe County v. Galleon Bay Corporation, 876 So. 2d 569, writ denied, no opinion (Fla. 3rd DCA, 2004).

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 Amended Order on Liability on January 30, 2006. On April 18, 2006, Monroe County and the State of Florida filed a rather novel, Petition for Writ of Prohibition 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. State of Florida and Monroe County, 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.

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. Order Granting Motion for New Trial. The County and State appealed the new trial order and lost. Monroe County et al. v. Galleon Bay Corporation, 954 So. 2d 1169, per curiam affirmed, (Fla. 3d DCA 2007).

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' Final Judgment in Favor of Defendants Denying Claim for Inverse Condemnation.

Twenty years is not the end of it all. There will be more to come.

Casitas Municipal Water District Revisited

On May 10, 2009, I wrote about the Federal Circuit's decision in Casitas Municipal Water District v. United States, 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.

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' keepers had to pay just compensation, but I can tick off many where the landowner had to grin and bear it. (Casitas is a physical taking case, so watch out.)

Casitas 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.

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." Casitas will probably be most helpful in those situations where landowners cannot use any of their property -- thus establishing a Lucas-style categorical (or per-se) taking. What Casitas adds to landowners' quivers is the ability to strip away the mystique that some see when they hear the words "endangered species."

Reverse Endangered Species Act Claim

In a comedic regulatory taking "defense," government counsel opposing our client's regulatory taking claim in Galleon Bay Corp. v. Monroe County & the State of Florida, are attempting to pin the tail on the federal government donkey, arguing "the US Fish & Wildlife Service made us do it."

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?

Apparently, the Monroe County Attorney, Suzanne Hutton, and Florida's Attorney General (and gubernatorial candidate), Bill McCollum, 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).

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.

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. 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.

Federal Circuit Finds Fifth Amendment Taking by Endangered Species Act

In Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (2008), rehearing denied, 556 F.3d 1329 (Fed. Cir. 2009), the US Court of Appeals for the Federal Circuit reversed the Court of Federal Claims -- opinion at 76 Fed. Cl. 100 (2007) -- holding that an uncompensated taking under the Fifth Amendment has occurred.

... there is no doubt that the preservation of the habitat of an endangered species is for government and third party use -- the public -- which serves a public purpose. .... when the government forces Casitas to divert water away from the Robles-Casitas Canal to the fish ladder for the public purpose of protecting the West Coast Steelhead Trout, this is a governmental use of the water.

Every environmental NGO in the country filed amicus briefs in Casitas. Though I haven't read them all, it's just the same old song -- "endangered species are entitled to more Constitutional protection than are citizens of the United States." That just ain't so, and the Federal Circuit has so held.

This brings me to Monroe County's latest fiasco on Big Pine Key and No-Name Key. The County and the State of Florida teamed up to develop a BPK-NNK Habitat Conservation Plan to "protect" the endangered key deer and the Playboy marsh rabbits, that prohibits essentially all use of approximately 1,000 acres of undeveloped, privately-owned land. This confiscatory County/State HCP was submitted to the US Fish & Wildlife Service as part of an application for an Incidental Take Permit. Always happy to accept land donations, the USF&WS issued the ITP -- that recites verbatim the conditions in the County/State HCP.

The problem with this scenario is that the County and the State did not have any ownership interest in the land they donated to the F&WS to "save" the key deer and Playboy bunnies. Ooops? You bet! The only difference between the BPK-NNK HCP and Casitas Mun. Water District v. United States is that Casitas is a physical taking (because the water is physically taken from Casitas and given to the fish) and BPK-NNK is a regulatory taking.

Meanwhile, we have a class action lawsuit pending in state court (Lightner, et al. v. Monroe County and the State of Florida), alleging a regulatory taking of those 1,000 acres on BPK-NNK, that should benefit substantially from this excellent decision by the US Court of Appeals for the Federal Circuit.

As we see it, the County and State can rescind their confiscatory regulations and pay temporary taking damages to those who have sought development approvals since the regulations went into effect. Or they can pay out more than $200 million in compensation for a permanent taking of 1,000 acres on Big Pine Key and No-Name Key.

PS. The US Court of Federal Claims (CFC) has exclusive jurisdiction over all inverse condemnation claims -- in excess of $10,000 -- brought against the United States. The Federal Circuit Court of Appeals hears all appeals from the CFC. Yours truly has been admitted to practice before the CFC since 1985, and the Federal Circuit since 1990.

NOTE ADDED August 10, 2009. The U.S. Solicitor General (Elena Kagan) requested two extensions of time to file a petition for certiorari in Casitas Municipal Water District. The second extension ended July 17, 2009 -- 24 days ago -- and no petition has been docketed by the Supreme Court. Looks like the Casitas battle goes to the property owners.

Breaking the Back of Unconstitutional Rate-of-Development Ordinances in the Florida Keys

Enacted in 1992 as a "hurricane evacuation infrastructure deficiency" moratorium -- that would expire in 2002 -- every local government in the Florida Keys now has a permanent Rate-of-Development (ROD) ordinance. And those same governments have stalled, and openly opposed, the infrastructure improvements that were going to be completed by 2002. Of course, the got-miners oppose any and all infrastructure improvements, and the local governments gladly appease them. The hurricane evacuation rationale has morphed into a sewer infrastructure deficiency, a save-the-trees program, and an endangered species program, protecting endangered rats, snakes, Playboy bunny, and midget Virginia white-tailed deer (imported in the 1800's as food).

At some point these ROD ordinances must be unconstitutional as violative of Substantive Due Process. Recently, in Zuckerman v. Town of Hadley, 813 N.E. 2d 843 (Mass. 2004), the Massachusetts Supreme Court held that a ROD ordinance -- in effect for 15 years -- was no longer constitutional. Just imagine -- the Town of Hadley had done nothing to cure the "infrastructure deficiency" its ROD ordinance was supposed to alleviate. But it sure reduced development and the got-miners were quite happy.

Sound familiar? Of course. It happens all over the United States, in areas thought to be desirable by the people who live there, as well as those who would like to live there -- and can buy land there but cannot get a building permit. Once someone manages to own their piece of paradise, their highest priority becomes preventing anyone else from doing so.

For an excellent analysis of the problem, see William A. Fischel's "The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land Use Policies," Harvard Univ. Press (2001). The author is an economics professor at Dartmouth College, who previously published "Regulatory Takings: Law, Economics, and Politics," Harvard Univ. Press (1995).

Last year we filed two lawsuits challenging Florida Keys' ROD ordinances. The first one, Lightner et al. vs. Monroe County & the State of Florida, involves over 1,200 parcels of land on Big Pine and No Name Keys. The other, Evanoffs vs. the Village of Islamorada, targets that town's ROD ordinances. In the latter, the Circuit Court has agreed that the Complaint states a cause of action, and has asked the parties to schedule a trial at the earliest available opportunity. It would appear that we are on the right track.

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.

California Decision Finding Lucas "Categorical Taking" in 30-Year Moratorium. Sounds Familiar.

I downloaded the 49-page slip opinion in Monks v. City of Rancho Palos Verdes ("Monks II") after seeing it mentioned in the October 1, 2008, inversecondemnation.com blog of Hawaii land use attorney Robert H. Thomas. It came back to me this week, when it was highlighted on the front page of the December 2008 issue of Gideon Kanner's newsletter, Just Compensation, with the exclamation:

"Will miracles never cease? The California Court of Appeal held that a city's moratorium forbidding all construction, and extending over a period of some 30 years, was a taking of property."

For those of us who consider California state and federal courts' interpretations of the U.S. Constitution something to be avoided, the tide seems to be changing out there. In December 2007, in Yamagiwa v. City of Half Moon Bay, a U.S. District Judge held that the city, in imposing a series of land development regulations, and excavating nearby areas for stormwater drainage -- that converted the property into undevelopable wetlands -- had "taken" the property and was liable for $37 million in Just Compensation.

Now, in Monks v. City of Rancho Palos Verdes, 167 Cal. App. 4th 263, rev. denied, 2008 Cal. LEXIS 14670 (Cal. Dec. 17, 2008), on its second trip to the Court, an intermediate California Court of Appeal held (and the California Supreme Court declined to review) that a building moratorium that started in 1978 was a permanent, categorical taking (as in Lucas v South Carolina Coastal Council, 505 U.S. 1003 (1992)).

This is a well-analyzed opinion that uses Lucas reasoning to conclude that the City's 1978 ordinance imposing a moratorium on the construction of single-family homes in the "vicinity" where landslides had recently occurred. In the earlier trip to the appellate court, that court rejected the City's one-two defense of "it ain't ripe, and besides, the statute of limitations has run." Monks v. City of Rancho Palos Verdes (Feb. 23, 2005, nonpublished opinion B172698.) ("Monks I," quoted liberally in Monks II.)

The Monks II opinion focused on the following aspects of the Supreme Court's opinion in Lucas. The California court's synopsis can be boiled down as follows.

1. The Lucas court rejected the contention that Lucas's property retained some economically beneficial use just because he could go there to picnic, swim, camp in a tent, or live in a movable trailer. See 505 US at 1044 (Blackmun's dissent).

2. The Lucas court concluded that the findings of the state legislature were of "no import in deciding the taking issue." The Lucas court held "Any limitation so severe [as to deprive land of all economically beneficial use] cannot be mewly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."

3. "The fact that a particular use has been long engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition.... So also does the fact that other landowners, similarly situated, are permitted to continue the use denied by the claimant. ... It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on [Lucas's] land; they rarely support prohibition of the 'essential use' of land...." Lucas, 505 US at 1030-31 (majority opinion of Scalia, J.); 505 US at 1052, fn 15 , and 1052-55 (Blackmun's dissent).

4. The government bears the burden of proving that the property owner's intended use is not allowed under state law. "...to win its case South Carolina must do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim that ... 'one must so use his rights as not to infringe on the rights of others.' ... Instead, as it would be required to do if it sought to restrain Lucas in a common-law action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing." Lucas, 505 US at 1031-32.

Just to bring this home, the State of Florida or the local government would have to show that it could have enjoined the building of single-family homes -- on lots zoned for single-family homes -- in the Florida Keys, under the common law in existence before Florida became a state. No statutes or ordinances enacted after that date would be relevant. If it cannot do that, the prohibition on construction of single-family homes in the Florida Keys -- even if it is only a "moratorium" -- is a Lucas categorical taking.

We would like to also mention that the recent Florida 5th DCA decision in St Johns River Water Management District v Koontz, Case No 5D06-1116 (January 9, 2009),brought to mind the fact that, under the US Supreme Court's Nollan/Dolan decisions, forcing landowners to dedicate land to the government as part of the price of obtaining a building permit, is an unconstitutional exaction and a Fifth Amendment taking.

Wouldn't it be interesting if a group of property owners filed a class action against the County and the State, demanding that all of the ROGO lots "donated" to obtain building permits be deemed "unconstitutional exactions," and requiring the County to commence eminent domain proceedings against every one of those parcels, and to pay the "donor" the Fair Market Value of the "donated" lots. After adjusting for Condemnation Blight, of course, which would kick the Fair Market Value up to 125% of the assessed valuation of nearby, developed, residential lots.

Anyway, those are my thoughts for February 2009. Check back here or on mattsonlaw.com to see how these ideas get transformed into action.

The Latest Voice of Reason is Online

You can download the latest issue of our newsletter, The Voice of Reason, today. We mailed thousands of newsletters in the 90's when we were challenging the 1996 Florida Keys Comprehensive Plan. We didn't like it then and we don't like it today, so we decided to resume publishing a newsletter.

There was a reason the drafters of the United States Constitution wanted a bill of individual rights in 1789. The first 10 Amendments -- the Bill of Rights -- were intended to protect the minority from the tyranny of the majority. Majority rule was presumed to lead to problems, and Alexander Hamilton and James Madison wrote extensively on the issue. Read The Federalist Papers, particularly Federalist 9 (Hamilton) and 10 (Madison), on "faction."

In the current issue of The Voice of Reason, we offer to create a web-based database that will reveal the governments' below fair-market-value offers for unbuildable property. Currently those offers are government "secrets," and nobody can obtain copies of these offers with public document requests. But nothing stops landowners from making their offers public.

Now we need to develop a strategy retroactively obtain supplemental compensation for former landowners who were paid only a fraction of what their property was worth. This may perturb homevoters and planners, but there is nothing in the Constitution that protects the government from such claims.

Chief Judge David Gersten Breathes New Life into Property Rights in South Florida

Third District Court of Appeal Chief Judge David M. Gersten, appointed in 1989 by Governor Martinez, has given us few hints of his judicial philosophy. Apparently, the judges are assigned to the same number of panels (about 750) each year. But, as of mid-2008, Judge Gersten had averaged 11 signed opinions/year since he was appointed. Compare this to Senior Judge Alan Schwartz, who has averaged 45/year for 30 years, or to Judge Cortinas, who has been on the bench only three years, but has signed 46 opinions/year.

Two months ago, in CNL Resort Hotel v City of Doral, 991 So.2d 417, Chief Judge Gersten turned a lot of South Florida lawyers' heads in a remarkable decision. On the surface, the issue seemed pretty simple ... whether a property owner can challenge a comprehensive plan on the basis that it fails to protect [the owner's] property rights. Even the Florida Department of Community Affairs agreed that the property owner had a legitimate gripe. But the City of Doral and the ALJ disagreed.

Judge Gersten (with the apparent agreement of Judges Shepherd and Rothenberg), simply buried the ALJ -- and the City of Doral's lawyers -- with the following exposition on property rights.

Private property rights have long been viewed as sacrosanct and fundamentally immune from government interference. The strong tradition of protecting private property rights against governmental interference stems back to both English common law and Lockean philosophy. Lockean philosophy emphasized that property rights are a natural, pre-political attribute of human beings. See James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 10 (2d ed. 1998).

Thus, it was only natural that our constitutional founders would safeguard property from governmental intervention. Our founders drafted the Fifth Amendment of the United States Constitution to provide that no person shall have property “taken for public use, without just compensation.” See U.S. Const. Amend. V. The Fifth Amendment, Takings Clause, is made applicable to the states through the Fourteenth Amendment. See U.S. Const. Amend. XIV. Florida’s state constitution also provides that “no private property shall be taken except for a public purpose and with full compensation.” See Art. X, §6, Fla. Const.

Florida further protects these sacrosanct private property rights when evaluating a comprehensive development plan. Florida zoning law requires that a governmental agency, such as the City, adopt a plan that coordinates with the state’s plan. See §163.3177(6)(h), Fla. Stat. (2006). Florida’s State Comprehensive Plan provides that “Florida shall protect private property rights and recognize the existence of legitimate and often competing public and private interests in land use regulations and other government action.” See §187.201(14)(a), Fla. Stat. (2006). Further, the goals and policies contained in the State Comprehensive Plan shall be reasonably applied where they are economically and environmentally feasible, not contrary to the public interest, and consistent with the protection of private property rights. See §187.101, Fla. Stat. (2006).

Without belaboring the point, Judge Gersten's opinion concludes that CNL had every right to challenge a Comprehensive Plan that did not consider its impacts on CNL's property rights (i.e., property value). If that isn't a major breakthrough in this day of planning "for the sake of planners" -- and damn the landowners who get in their way -- nothing is.

I confess that I did not feel positively about Judge Gersten when he joined the other two members of the panel (Levy and Goderich, JJ) in Monroe County v. Ambrose, et al., 866 So. 2d 707 (Fla. 3d DCA 2003), a 500+ plaintiff suit to establish statutory vested rights to build on platted lots in the Florida Keys. I was then, and remain, firmly of the opinion that this was part of a legitimate compromise made by the Florida Senate in 1972 when it adopted the Area of Critical State Concern statute, for the simple reason that no State Senator wanted part of his jurisdiction to be subjected to a State takeover of local zoning laws. It helped that a well-preserved legislative history conclusively proved our point. In Ambrose, Judges Gersten, Levy, and Goderich simply re-wrote the law the way they wanted it to be. Maybe they thought it would be too disruptive to overturn the "Save the Keys" applecart after 20 years of State tyranny, but I still believe their decision was wrong.

Now, if we could just get Judge Gersten to write faster. It took 385 days after oral argument, for this non-final order appeal to be decided. Presumably, there was even a longer delay in the administrative ComPlan proceedings below. The Ambrose per curiam decision was written in 308 days. Wars have been started, and won or lost; babies are conceived, born, and in bassinettes; or you can get an MBA; in 385 days. 385 days is just too long to wait for an eight-page opinion (especially when it's an appeal from a non-final order).

P.S. I admit that being on 750 panels/year -- that's 15/week, or 3/day if you get 2 weeks of vacation -- would drive most people crazy.