Do Some of our Elected Judges Lean Toward "Politically Correct" Decisions?

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 without paying just compensation, 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.

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.

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 just compensation. Today, it goes without saying that local governments have fallen behind on revenue projections to the extent that their grande schemes 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.

One subject, that of elected vs. appointed trial judges, has come up many times over the past 200 years. To whom are elected judges indebted to? The subject has been debated before, as we note below.

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"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, “Professionals or Politicians: The Uncertain Empirical Case For An Elected Rather Than An Appointed Judiciary.” 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 University of Chicago Law Faculty Blog).

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. 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).

It is my professional opinion that judges who are appointed on ability, rather than elected in a nonpartison election are the better choice.

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.

Happy New Year

Well, it has been almost a year since I updated the Grand Theft: Property Blog. So a brief review of our regulatory takings cases in the Florida Keys appears to be in order.

I should point out that, in 2009, we spent about six months getting our Collins and Galleon Bay 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 -- Collins v Monroe County, Shands v City of Marathon, McCole v City of Marathon, and Beyers v City of Marathon -- and Judge Luis Garcia dismissed a fifth case, Sutton v. Monroe County. On December 31, 2008, the Florida 3rd District Court of Appeal reversed Judge Audlin's dismissals of Collins and Shands -- but that still left McCole, Beyer, and Sutton to be decided.

The 3rd District Court of Appeal (3rd DCA) affirmed Judge Garcia's dismissal of the Sutton case on December 23, 2009. We were surprised by the 3rd DCA's decision because it was completely contrary to the Collins and Shands decisions of a year earlier. We filed a Motion for Rehearing in Sutton. That was denied May 25, 2010. We then filed a Petition for Discretionary Review 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.

The 3rd DCA's decision in Beyers v. City of Marathon, on June 9, 2010, was consistent with its earlier decisions in Collins and Shands, and the Beyer case was remanded to the trial court. However, the 3rd DCA rejected the McCole v. City of Marathon appeal on April 21, 2010, based upon its logic in the Sutton appeal.

This left us with successful appeals in Collins, Shands, and Beyers, but with completely contradictory decisions in Sutton and McCole. Because of the conflict, we filed petitions for discretionary review, in Sutton and McCole, before the Florida Supreme Court in mid-2010. Two weeks ago, on December 18, 2010, the Florida Supreme Court denied review in Sutton and McCole.

The only fact that distinguishes Sutton and McCole from Collins, Shands, and Beyers, from Sutton and McCole 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 Williamson County. For that reason alone, we believe the Sutton and McCole decisions are wrong.

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.

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.

In short, that's what we've been doing this past year. We are also moving forward on the Collins case, which is set for a liability trial in April 2011, and on the Galleon Bay case, another lawsuit that Judge Audlin screwed up during his reign in 2007. But ... more on those cases later this year.

Is the State Conceding its "Condemnation Blight" Battle in the Florida Keys?

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, Florida DEP v. West, et al. (original opinion affirming trial court), 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.

This suggests the State decided not to seek discretionary review from the Florida Supreme Court -- a wiser decision than their last one in Collins v. Monroe County & the State of Florida. But, in Collins, 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.

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.

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).

Has the Tide Turned?

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.

In 1996, Andy Tobin and I sent Voice of Reason 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.

Now that the Florida DEP v. West, et al., decision 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 West 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).

[This post replaces an earlier post.]

Landowners' Condemnation Blight Judgments Affirmed

Today, Florida's Third District Court of Appeal affirmed the trial court's judgments in Florida DEP v. West, et al, 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.

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).

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 West-Freeman section of my website.

(Edited 10/22/2009 to include interest information.)

Nollan-Dolan Exactions May See More Play

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.

In 1987 and 1994, the Supreme Court issued two regulatory taking opinions that did little more than muddy the waters. The 1987 decision, Nollan v. California Coastal Commission, 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 Nollan, 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.

In their 1994 decision. Dolan v City of Tigard, 512 U.S. 374, the Supreme Court supplemented the Nollan "connection," with a Dolan "proportionality" requirement for exactions imposed on private property owners. The Dolan decision has always been difficult to articulate. However, the 2006-2008 Utah Supreme Court has done a nice job explaining Dolan.

In B.A.M. Development v. Salt Lake County (I), 128 P. 3d 1161 (Utah 2006), and B.A.M. Development v. Salt Lake County (II), 196 P. 3d 601 (Utah 2008), the Utah Supreme Court reduced the Dolan "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.

The Key Deer Habitat Conservation Plan (HCP) is Invalid for Non-compliance with the Information Quality Act.

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. See Harveson, et al., "Impacts of urbanization on Florida Key deer behavior and population dynamics," 134 Biological Conservation 321-331 (2007), available at http://www.sciencedirect.com. Harveson, et al., concluded Key deer prefer urbanized habitat on Big Pine Key, and that, in 2003, they were 10% heavier than those living in 1973.

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 (Sylvilagus palustris hefneri) from the ravages of human civilization. The only "scientific" basis for the ITP is an April 2006 Habitat Conservation Plan (HCP), prepared by Monroe County and the State of Florida.

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.

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; i.e., 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 their land and fortune (though the Key deer thrive in a developed environment).

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.

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."

Data and analytical results must be subjected to "peer review." 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.

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 curriculum vitae, 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.

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.

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.

Condemnation Blight Oral Argument Set

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 Florida v. West, et al., in the new Key West courthouse. This is the 2008 "condemnation blight" 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!

Updated May 31, 2009. Please check our website, http://mattsonlaw.com, to read the briefs before you make the trek to Key West. The State's Initial Brief is available, as is our Answer Brief, on the website. The State's Reply Brief is due on or before June 15, 2009.

Voice of Reason Recipients Getting the Message

Five weeks after mailing the latest Voice of Reason to every owner of Tier I land in unincorporated Monroe County, responses from all over the country have been strong. One-third of the affected landowners reside outside Florida; another third live in Florida but outside Monroe County; the other third reside in Monroe County.

We have been getting e-mails and telephone calls every day from landowners who have resisted the State's siren invitations to buy their land for pennies on the dollar. Almost without exception, these landowners have no clue what their property would be worth in a proper eminent domain proceeding. But ... these are individuals who have rejected State offers for years, and are willing to fight. The faint-hearted sold out long ago.

We continue to tell Keys landowners that they are opposing one of the United States' most intransigent enemies of landowners -- local governments that are captives of the homevoters that elect them.

If you have not received a Voice of Reason in the past six weeks, it is likely that the Monroe County Property Appraiser does not have your current address on file. You can resolve this by calling or writing the Property Appraiser to correct your mailing address. You will then receive the next Voice of Reason in the mail. That is because we use the Property Appraiser's database to build our mailing list. (To download the March 2009 issue, click on the title of this post.)

$4,500 Poll Tax Approved by Moron County Commissioners

One wonders what goes through the feeble minds of elected officials, not to mention their sycophantic in-house counsel. Two weeks ago, I noted that the Florida Keys' elected County Commissioners were entertaining their planners' proposed fee of $4,500 for a "Beneficial Use Determination," a/k/a "BUD." Well, they weren't embarrassed in the least. They adopted said $4,500 "poll tax" on April 15, 2009.

In other jurisdictions, similar statutes and ordinances are called "taking avoidance" procedures. Many communities are justifiably concerned that their land development regulations "go too far," placing the local taxpayers in a position where they will have to pony up millions of dollars when regulations go "too far." The more enlightened communities utilize their taking avoidance ordinances to back off on overly confiscatory regulations, and save the taxpayers a ton of money. The Florida Keys $4,500 fee will just cause more litigation. It is now being used to pay planners' salaries, instead of what it was originally intended to do -- save money.

On December 1, 2007, I reported on a good example of municipal incompetence on the part of the City of Half Moon Bay, California, when it got slammed with a $36.8 million inverse condemnation judgment as "payback" for its years of staunch opposition to a residential subdivision within the city limits. Nearly a year later, I reported, also on this blog, that Half Moon Bay and the landowner had reached a settlement. The City would allow the development of the property or, if the California Coastal Commission prevented same, it would pay the landowner $18,000,000.

Monroe County is headed for serious financial trouble, whether the County Commissioners know it or not, and this latest dumb move just digs the hole deeper. Property tax rates in this community are the lowest in the State of Florida, but that will not last long with these clowns in office.

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.

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

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

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

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.

Time's Up: Local Governments Unable to Find Legal Basis for New Judge's Reversed Decisions

Six days have elapsed since the 15-day deadline ran for filing Motions for Rehearing in the Collins and Shands regulatory taking cases (January 15, 2009). Apparently neither Monroe County (Collins), nor the City of Marathon (Shands), identified errors in the Third District Court of Appeal's reversals of Judge Audlin's dismissals of these cases. The appellate court issued its mandate in Shands v City of Marathon a week ago (January 16, 2009). The mandate in Collins v Monroe County will be delayed slightly, as we filed a Motion for Clarification on January 15, 2009.

As to our Motion for Clarification, we were concerned that the Court of Appeal appeared to believe that the Florida Keys had no zoning regulations until the State imposed them on September 15, 1986. This perception comes from the Third DCA panel opinion in Monroe County v Ambrose, a vested rights case we prosecuted from 1997 to 2003. We asked the current court to correct that misperception. The Florida Keys adopted zoning regulations in 1959 -- the first year Florida's non-charter counties had the right to do so. The County's legal gnomes have until January 25, 2009, to file a response.

We note -- with a taxpayer's curiosity -- that the Monroe County Attorney's office is asking the County Commission for permission to file a Petition for Certiorari with the Florida Supreme Court -- on the condition that the County "will not bear any additional attorneys' fees" for this speculative effort. Give me a break -- if you can't come up with a reason to file a Motion for Rehearing, what makes you believe you can get the attention of the Florida Supreme Court?

We also note -- with a bit more skepticism -- that Monroe County's contract legal "geniuses" from Kansas City and Los Angeles did nothing other than obfuscate the issues in these cases -- in exchange for more than $1.5 million in legal fees. (The same can probably be said for Marathon's outside counsel.) It is amazing how local government officials convince themselves that they will manage to escape culpability from their confiscatory behavior by hiring expensive attorneys from another planet.

Keys Commissioners in Denial

A Monroe County commissioner revealed the County's response to the Collins decision in a radio interview today. They plan to file a petition for review by the Florida supreme court -- no surprise there. But as Florida's District Courts of Appeal are intended to be the courts of last resort, the chance the supreme court will review the Third DCA's decision is zero. Florida's highest court reviews decisions that are (1) certified by a District Court of Appeal as being "in conflict" with another District Court's decision, or (2) certified as a question of "great public importance." (A petition for discretionary review, even by a government entity, does not trigger an automatic stay of the District Court's mandate, though government appeals to the District Courts of Appeal get an automatic stay.)

Option one -- conflict -- is not in play because the Florida Keys' Beneficial Use Determination process only exists in one Florida County -- so no inter-District conflict will ever arise. Option two -- "great public importance" -- is unlikely as well. First, the District Court panel did not use that language in their opinion -- and only the District Court judges can make that call, not the litigants. Second, what makes anyone with a brain think that a confiscatory local government's desire to acquire land for 15 cents on the dollar is of such "great public importance" that it should be continued? It's time to bring this charade to an end.

No word yet on what the City of Marathon plans to do in the Shands case, but Marathon does not have in-house, salaried attorneys as Monroe County does, so a petition for discretionary review would be a bit more expensive. We assume the County will finally terminate its outside counsel from Kansas City, after paying them at least $1.5 million to get to this point.

A skeptic might say that seeking discretionary review by the supreme court just adds to the time it takes for each plaintiff to get paid. Or that it is just a government ploy, hoping that fair market values (which they abhor anyway) might decrease in the interim. But the government owes these plaintiffs rent on their properties, at 10% of their fair market values (appraised assuming that they were buildable on demand) on the date of their Beneficial Use Determination application, and on each anniversary of that date, plus interest, until the government either takes title to the property by eminent domain. At which time it will also have to pay the fair market value as of the date of trial. This is called "rent-to-buy." So the bill keeps going up during these delays.

Bernie Madoff managed to steal $50 billion, for which we all must give him credit -- though it was all quite illegal. His "marks" probably knew something illegal had to be going on, but why worry as long as the checks kept coming? Monroe County and its co-conspirators in State government have been fleecing innocent landowners for more than 15 years, adopting confiscatory regulations that prevent people from using their property -- ostensibly under the banner of the local government. Then, the State government shows up on the doorstep and offers 15 cents on the dollar for your "unbuildable" property. What is this? A "good cop" -- "bad cop" con?

The only aspect of this government con game that is of "great public importance" is stopping the government from stealing innocent landowners' property. If the Collins plaintiffs -- the screwees -- had lost this case at the Third District Court of Appeal, then there might be an issue of "great public importance." As it is, our local "Bernies" deserve their fate.

Monroe County Planners Conspire with County Commission to Strip Vested Rights Decision from Key Largo Landowner; Judge Buys It

The Florida Keys had a gut-wrenching change in land use regulations 22 years ago (Sept. 15, 1986, to be precise; and yes, I was here). As part of the 1986 ComPlan, two "safety valve" ordinances were put in place -- the Beneficial Use Determination ordinance you have read about on this blog and on my website. The other, a Vested Rights Determination, you have not. That's because the Vested Rights process had a one-year deadline for applications while the BUD process is available forever.

In 1987, the managers and owners of the Ocean Reef Club, ("the Reef)" an exclusive resort community at the north end of Key Largo, filed a Vested Rights application on behalf of the corporation, the club, and all the owners of land within the Club's (rather large) boundaries. The County appointed John Bigler, a Key West attorney, as Special Master to conduct a hearing on the application. Fred Tittle, who later became of counsel to Mattson & Tobin, represented the Reef. County Attorney Randy Ludacer represented the County. (My, those were the days, weren't they, when the County Attorney actually did some work instead of farming it out to $450/hour private attorneys.)

As in all administrative proceedings, a hearing was eventually held. Tittle and Ludacer went into executive session and carved out a deal. (In law school they called this "negotiating.") Tittle and Ludacer eventually returned to Mr. Bigler's hearing. They presented their done deal; there was some testimony by The Reef's manager; the deal was approved; and the County Commission approved Mr. Bigler's Recommended Order vesting everything on the planning horizon.

Fast forward 10 years. In 1996-97, the Florida Dept. of Community Affairs rammed a set of confiscatory wetland regulations down the County Commission's throats. "Adopt these or prepare for boarding" is what I understand the DCA said. (Although I knew that some of those DCA people were actually human; I also knew that some were decidedly evil.) These new rules included a novel concept; "red-flag" and "green-flag" wetlands were about to be identified (by aerial surveys using drunken pilots flying upside-down). Now, it made no difference to these folks that neither the US Army Corps of Engineers nor the Florida Dept. of Environmental Protection (FDEP) gave a whit about these red-and-green flag wetlands. They were going to SAVE THE KEYS. (Seems to me the Keys needed to be rescued from these lunatics.)

Fast forward another 10 years, to 2008. Now we're litigating that nice, cordial vested rights deal the County cut with the Reef in 1988 -- saving the County a huge legal bill at the time. Our client happens to have been one of the landowners covered by the 1988 Vested Rights order. But the drunken pilots discovered a patch of "caprock wetlands" on her property (which had been legally dredged and partially filled decades ago), and County "growth prevention" personnel told her she could not build anything on her $1 million lot.

OK, she said, who is going to pay me? So Andy Tobin took her through the Beneficial Use Determination process, where a landowner either gets paid, gets a permit, or gets the right to sue (See the Collins v Monroe County blog entry dated 12/31/08.) Instead of one-of-the-above, she was "granted" a reduction in bulk setbacks (that conflict with the Reef's setbacks), but told to "forget it."

So, can you imagine our chagrin when the County "planning staff" (read: "thieves") put language into our client's "beneficial use determination" resolution that purports to alter the Reef's 1988 Vested Rights order. Though the BUD ordinance spells out what the County Commission's choices are, they cannot help themselves from overreaching.

This case is now on appeal to the Florida Third District Court of Appeal, with oral argument set for January 13, 2009. One has to work very hard to stay ahead of the crooks in this business. At least Bernie Madoff only took people's money. Wish us luck.

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.

Monroe County Commission Warned State Loss in Condemnation Blight Cases Poses Major $$ Problem

On the Monroe County Commission's agenda for December 17, 2008, is a request from the County Attorney's office for permission to file an amicus curiae brief in the State's appeal of the $6.9 million (plus costs, post-judgment interest at 11%, and attorneys fees) West & Richardson Condemnation Blight judgments. To quote from the request:

On April 9, 2008 - prior to the jury trial on compensation - the trial court entered an "Order Granting Defendants' Motion In Limine on the Issue of Condemnation Blight." The property owners contended that precondemnation actions of the State and County blighted the property by preventing all, or substantially all, beneficial use of the property. The Order prohibited the parties from presenting any evidence regarding the effect of any County or State regulation promulgated, enacted or amended after February 8, 1982. The Order required that the jury be instructed to determine the Fair Market Value of each parcel as of the de jure takings in Spring 2004, according to the highest and best uses they would have had on February 8, 1982.

On October 8, 2008, the trial court entered final judgments awarding just compensation totaling $6,877,257 (plus costs and attorneys' fees). On October 30, 2008, the State of Florida filed Notices of Appeal of the two final judgments. This matter is of great importance to the County because the appellate court's decision will potentially set precedent applicable to the inverse condemnation actions currently pending against the County. In some of those actions, plaintiffs have similarly asserted theories of condemnation blight. The acceptance or rejection of those theories will impact how property is valued for purposes of determining just compensation awards, and either increase or decrease the County's liability exposure.

Other than having an incorrect date for the Condemnation Blight Order (it was April 9, 2007, not 2008), and omitting the fact that the judgments are earning 11% interest per year, we agree that the County could be in deep trouble here -- but so is the State.