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.

The Galleon Bay TragiComedy

I cannot explain how a trial judge could enter the judgment that 16th Judicial Circuit Judge Mark Jones rendered in Galleon Bay Corporation v. Monroe County, et al., 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.

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.

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 Galleon Bay decision is reversed.

Collins Liability Trial Concluded April 14, 2011

The liability trial in Collins, et al. v. Monroe County & State of Florida, was heard over nine days, from April 4-14, 2011, in Key West. When the Collins 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.)

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.

[Edited May 14, 2011.]

April 4-14, 2011: Finally, a Trial in Collins v Monroe County

[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 Collins 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 Collinses and Magrinis had received building permits -- but only after extensive delays. The Schneider 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 Greg Riordan, who is two generations removed from Mr. Schneider. These dismissals were appealed and are now before the 3rd DCA.

A Little History: On January 3, 1997, the original 11 Collins plaintiffs started down this path when Mr. Tobin and I filed their petitions for Beneficial Use Determinations ("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.

The 1986 BUD rule/regulation [this, too, had to be approved by ADCOM] required landowners whose property was unbuildable 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, at best, 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 Gonzalez v. Monroe County, a lawsuit we initiated in 1988. Judge Payne's decision was affirmed by the 3rd DCA, with an opinion, in Monroe County v. Gonzalez, 593 So. 2d 1143 (Fla. 3d DCA 1992).

Ultimately, between 2002 and 2004, each of the Collins 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.

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 all 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 Collins v. Monroe County and Beyers v. City of Marathon. At the same time, Pacific Legal Foundation ("PLF") successfully reversed Judge Audlin in Shands v. City of Marathon. [We are in the process of taking over PLF's responsibilities in Shands v. City of Marathon, while PLF focuses on appellate practice.]

So far, we have not been successful in reversing Judge Audlin's decision in McCole v. City of Marathon, nor Judge Garcia's decision in Sutton v. Monroe County. 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 Sutton and McCole 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.]

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.

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.)

Government Denied Review by Florida Supreme Court in Collins v Monroe County

Yesterday, the Florida Supreme Court denied the governments' petition for discretionary review in Collins, et al v. Monroe County & the State of Florida, 999 So. 2d 709 (2008), rev. denied (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 Collins (BUD ripens) and the ripeness decisions in jurisdictions with no BUD (or similar) administrative process.

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.

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.)

As an aside, we note that the supreme court also awarded attorneys' fees to the plaintiffs (landowners).

Oral argument in Condemnation Blight case

Oral argument was had Monday, June 22nd, in Key West, before Florida's Third District Court of Appeal, in the Condemnation Blight case of Florida DEP v. West, et al., that resulted in a $6.9 million judgment for two parcels that the state "quick-took" for $630,000 in 2004. (Details on MattsonLaw.com) The panel included Chief Judge Gersten and District Judges Suarez and Rothenberg. Judges Gersten and Suarez were on the panels in Collins v. Monroe County and Shands v City of Marathon one year ago (June 30, 2008). The Landowners prevailed in both Collins and Shands, and Judge Suarez signed both opinions.

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 Tahoe-Sierra -- 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.

The West 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.

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."

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 Third District Court of Appeal releases its decisions on Wednesdays, at about 10:30 AM.

Ms. Ahearn's $25 Million Eminent Domain Verdict

Gideon Kanner posted this four days ago, about a 101-year old landowner who may have gotten even with the local government. Then the Eminent Domain Law Blog picked it up last Friday, and it's just too good to pass up.

The landowner, 101-year old Ms. Ahearn, had been offered $25 million for her golf course property some 10 years ago, and the local government (Evergreen Park, Illinois) killed the deal by refusing to rezone the property. Then, as luck would have it, the town decided to acquire the property by eminent domain ... offering $5 million. The jury, however, after 30 minutes of deliberation, came back with $25 million -- the amount Ms. Ahearn would have received 10 years ago.

Now comes the difficult part. As in Florida, Illinois apparently allows the condemning authority to "walk away" if it doesn't like the jury verdict. It pays costs and attorneys' fees, but that doesn't do much for the landowner.

We have an analogy to Ms. Ahearn's case here in the Florida Keys -- Florida DEP v West, et al. The West case is pending in the Florida Third District Court of Appeals, after a jury came in at $5.06 million in an eminent domain proceeding where the State put up only $550,000. We represent the landowners in West, and are defending the appeal. But we have a leg up on Ms. Ahearn -- as the State "blinked" and filed a "quick-take" almost at the height of the real estate bubble in 2004. The State of Florida cannot "walk away" on this one.

The State of Florida filed the West condemnation proceeding in 1995, as a slow-take (like Ms. Ahearn's in Illinois). We responded with a regulatory taking counterclaim, figuring the State would run like a scared rabbit if a jury came in at 10 times what the State was offering back then. At the least, the taking counterclaim could be pursued if the State decided to bail out of its slow-take. Fortunately, the State blinked in 2004, and we converted the counterclaim into a motion in-limine on condemnation blight.

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

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

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

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.

Neither the Monroe County Commission, nor any Florida Governor, will Ever Get It

Now that we have the Statutes-of-Limitation defenses behind us (Keys landowners can wait for a thousand years), and local and state governments are having problems finding two nickels to rub together, it is a good time for Keys land use lawyers to increase their "taking/due process" offensive against the State and local governments. The pair of regulatory taking opinions by the 3rd District Court of Appeal on New Year's Eve, Collins v Monroe County & the State, and Shands v Marathon, have pushed affected Keys landowners well into the finals of the liability stage in regulatory taking lawsuits.

Our pending cases include (i) the 11-plaintiff Collins case, (ii) the McCole and (iii) Beyer cases against Marathon and the State, (iv) Evanoff's vs. Islamorada & the State, (v) Sutton v Monroe County, and (vi) Lightner, et al v Monroe County & the State, a class action Taking/Due Process suit involving the confiscatory regulations on Big Pine and No Name Keys. And let's not forget our $7 million judgments against the State of Florida in State v West & Richardson, that are now on appeal at the Third DCA. (The state's initial brief is due in mid-February.)

Since 1986, the State of Florida and "Junior" (a/k/a Monroe County) have enacted so many confiscatory regulations in the Florida Keys that they make the California Coastal Commission appear pro-development! If we had not been such a miniscule part of Florida, with only 80,000 residents (read "homevoters") on a 120-mile chain of islands, big law firms would have been all over this problem 20 years ago. But, we are a miniscule mass of people. While 80% of the owners of affected properties do not live or vote here, 12 years ago that percentage was 90%. It is clear that non-resident landowners have been more willing, than locals, to trade their land for 15 cents on the dollar.

The time has come to get 100% of Fair Market Value for the remaining undeveloped properties in Playboy bunny rabbit, Key deer, and endangered rodent habitats -- so those little critters can enjoy life and pay property taxes like everyone else. And if Gideon Kanner is looking for a place where his experience can be put to the test on a constant basis, maybe he will think about spending some time in the Florida Keys.

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.

Collins and Shands Regulatory Taking Decisions Reversed by Third DCA

The Third District Court of Appeal released its REVERSALS of Circuit Judge Audlin's dismissals of Collins, et al., v Monroe County & The State of Florida, and Shands v. City of Marathon, on New Year's Eve -- six months after oral argument. And the opinion is signed by District Judge Suarez -- not Chief Judge Gersten -- so I got that part wrong.

You can read the opinions by clicking on their captions in the previous sentence. You can also view them on the Court's website by clicking on the title of this post. The Collins case number is 3D07-1603; Shands is case number 3D07-3288.

After extensive hearings before Chief Judge Richard Payne after the Collins case was filed in late 2004 -- all favorable to the landowners -- his successor, David Audlin, made it very clear that he was going to get rid of our regulatory taking cases any way he could. He did just that by declaring that the 11 Collins landowners had not sued within four years of the effective dates of the County's confiscatory ordinances. Rescinding Judge Payne's rulings in the landowners' favor -- without even the merest request to do so from the defendants -- Judge Audlin ruled that the County's unique Beneficial Use Determination ("BUD") process did not "ripen" an as-applied taking claim. Following this train of thought, he ruled that the Plaintiffs had not filed their taking claims within the four-year statute of limitation.

On appeal, government counsel (including the County's multi-million dollar lawyers from Kansas City) argued that the BUD process was a meaningless exercise -- despite the fact that this same Court of Appeal had ruled otherwise in one of our earlier cases, Key West v Berg, 655 So. 2d 196 (Fla 3d DCA 1995), and despite the fact that Michael Berg, counsel in the companion Shands case (argued back-to-back with Collins), had successfully convinced the Third DCA in Key West v Berg that a landowner had to go through the BUD process to ripen a regulatory taking claim.

Given their propensity for obfuscation and delay, I guarantee government counsel will move for rehearings in both Collins and Shands -- without success -- and will seek discretionary review by the Florida Supreme Court -- which will be denied, in part because the Third DCA's opinions in these cases only affect a single Florida County. So we probably will not be back in the trial court for another six months.

Note added 1/1/09: Judge Suarez' opinions in Collins and Shands suffer slightly from some irrelevant dicta (dicta = statements made by the court that are not based upon the record, nor necessary to the decision in which they appear), perhaps intended to reduce the impact of his opinions on Monroe County's psyche. In particular, we note Judge Suarez' dicta that there were no zoning ordinances in Monroe County before 1986, leading to his suggestion that, just maybe, some landowners who bought before 1986 may have no investment backed expectations. Not only are these remarks outside the record, but they assume an incorrect premise. Monroe County's first formal zoning regulations were adopted on December 8, 1959, and became effective January 4, 1960. Prior to that, there were recorded, platted subdivisions that established residential land use densities as early as the 1920's. While there are times when dicta can be helpful, dicta based on erroneous assumptions are not helpful. We will probably bring this matter before the Court before the opinions become final.

Once the Third DCA denies the governments' motions for rehearing, the Collins and Shands decisions become final. At that point, we expect the Court will remand the Sutton v Monroe County, McCole v Marathon, and Beyer v Marathon cases to the trial court -- as they all suffer from the same wrong logic as Collins and Shands. McCole and Beyer are Audlin dismissals, and were expected. Sutton was dismissed by Judge Garcia, much to our surprise and dismay. There are also some housecleaning issues we need to take care of when these cases come back to the trial courts. Happy New Year, Everyone!

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.

No Decisions Yet in Collins or Shands

It's been 22 weeks since the oral arguments in the regulatory taking lawsuits Collins v Monroe County & the State of Florida (11 plaintiffs), and Shands v the City of Marathon. No "substantial" [my adjective] opinions in civil appeals were released today. Only three civil opinions were released, and they were certiorari decisions -- appeals from non-final orders that are usually decided quickly. The Collins and Shands cases are appeals from final judgments -- which take much longer to decide. For the past three months it has taken 111 days (16 weeks) after oral argument -- on average -- for the 3rd DCA to release "substantial" civil opinions. But 25% of those opinions took from 112 to 519 days.

I think there is a high probability that Chief Judge Gersten is writing the Collins and Shands opinions. Two of the three longest gestation times for opinions released the past three months (385 and 427 days) were opinions signed by Judge Gersten -- Levin v. Lang and CNL Resort Hotel v City of Doral. Compared to the District Court's current 111-day average release time, Judge Gersten's opinions take longer to see daylight. His average release times in the past three years are 129 days after oral argument when affirming, and 169 days when reversing. Today is the 156th day since the oral arguments in Collins and Shands.

We filed two more regulatory taking appeals last month, McCole and Beyer (vs the City of Marathon), and both were dismissed by Judge Audlin on Statute of Limitation grounds. A third will be filed as soon as a Final Judgment is signed by Judge Garcia (Sutton v Monroe County). Judge Garcia's decision is based on the same flawed reasoning that Judge Audlin applied in Collins, Shands, McCole, and Beyer.

For more information on these appeals, click on "Takings Appeals under "Labels" in the left-hand margin. Unless special circumstances exist, the Third DCA releases its decisions on Wednesdays by 10:45 AM. Clicking on the title of this post will take you to the Third DCA's website.

Update: December 10, 2008. No decision today either.

Local Judges Dismiss Three Regulatory Taking Cases on Statute of Limitations Grounds

As we predicted a year ago -- in an October 12, 2007 post -- 16th Circuit Judge Audlin dismissed Beyer v City of Marathon & the State of Florida and McCole v City of Marathon & the State of Florida, for failing to sue within 4 years of enactment of the confiscatory ordinances. He reached this conclusion -- unless he doesn't read, or can't understand, the case law we provide him, or he just doesn't care -- fully aware that Keys landowners have to ripen their taking claims by applying for -- and obtaining -- a final decision via the "Beneficial Use Determination" procedure, or by filing a building permit application, waiting 4 years, and then asking for "Administrative Relief." And that the Statute of Limitations does not start to run until the administrative proceeding has concluded. [The 4-year wait in the permit queue is a dead giveaway.]

We filed Notices of Appeal in McCole on November 5, 2008 (3rd DCA Case No 3D08-2841), and Beyer on November 12, 2008 (3rd DCA Case No 3D08-2864). In an ideal world, both appeals will be mooted by the Third DCA's reversal of Judge Audlin in Collins.

As I noted in a post eight months ago -- March 16, 2008 -- 16th Circuit Judge Garcia also dismissed a regulatory taking claim -- in Sutton v Monroe County. We amended that complaint to state a cause of action for a due process taking. Ultimately we believed it was unnecessary to go through a Due Process trial when the dismissal of her regulatory taking claim is likely to be reversed by the District Court of Appeal. We recently dismissed the due process count, and Judge Garcia will be entering a Final Judgment, giving us a "hat trick" to take up to the 3rd DCA.

State Appeals North Key Largo Verdicts

On October 30, 2008, the State of Florida filed Notices of Appeal on the two Judgments totaling $6.9 Million (not including costs & attorneys' fees) rendered by 16th Judicial Circuit Judge Luis Garcia on October 8, 2008. The State's lawyers obviously believe the landowners' Condemnation Blight defenses raised in this case (filed in 1995!) will be employed by other landowners in the Florida Keys -- raising the cost of stealing property in the Florida Keys by several hundred percent.

Can you just imagine! Landowners demanding Fair Market Value for their property, when the State has been getting away with grand theft for the past 12 to 15 years! Heaven Forbid! It looks like the Florida appellate courts are going to get another opportunity to explain, to the State property thieves, that they cannot get away with driving property values down with regulations -- so they can steal the land for pennies on the dollar.

A Florida District Court appeal often takes a year to reach a decision, and two years is not at all unusual. At 11%, however, this appeal -- presuming we prevail -- will cost the State about $2,400 per day (nearly $900,000 per year) in interest alone.

Unfortunately, a million dollars a year is a small price to pay if the State can bamboozle more landowners to "voluntarily" sell their land to the State for 15% of Fair Market Value. At $40,000 per parcel, which is what the State has been paying, it would cost only $8 million to buy 200 Florida Keys parcels (which is what it bought in the past two years). If it had to pay Fair Market Value -- as it will for the two parcels now on appeal -- 200 parcels would cost on the order of $50 million!

In order to put a stop to this highway robbery, we will be mailing a special issue of our Voice of Reason newsletter to every owner of undeveloped Florida Keys property. We will urge these landowners to demand full Fair Market Value for their property. Enough is enough!

Statute of Limitations Decisions Remain Pending at Third DCA

Eleven weeks after the oral arguments, we are still awaiting the Third District Court of Appeal decisions in Collins v Monroe County & State of Florida and Shands v City of Marathon. No opinions in these cases were released this week. The Court did release its opinion in Bauknight v. Monroe County, a temporary taking case with at least one legal issue -- and a 2/3rds panel congruency -- in common with Collins and Shands.

Bauknight involved two Big Pine Key landowners who received building permit allocations -- but no building permits -- in 1996, and a third landowner who was similarly stiffed in 1997. By 2002, there were 23 Big Pine Key landowners in this inane limbo and, smelling "taking" lawsuits, Monroe County initiated a "beneficial use determination" (BUD) hearing on their behalf. Lo and behold, the BUD Special Master concluded the 23 had been "deprived of all beneficial use" of their properties, and recommended their permits be issued. The County Commission ratified the Special Master's recommendation in June 2002. Eventually, building permits were issued to the Bauknight plaintiffs.

The Bauknight Complaint was filed September 24, 2004, two years after the County's final BUD decision -- but eight years after the permit "allocations" were granted (seven in the Bauknights' case). Following a March 7, 2007 hearing (after Judge Audlin's dismissals of Collins and Shands on statute of limitation grounds), Sixteenth Judicial Circuit Judge Luis Garcia dismissed the case. Judge Garcia's remarks during that hearing indicated his concern that the Plaintiffs could delay filing their lawsuits for seven or eight years -- and just allow the damages to pile up year after year.

In the Third DCA's Bauknight opinion, the panel acknowledged -- as Williamson County held in 1985 -- that a regulatory taking claim does not arise until after the landowner ripens the claim, stating: "The owners were obligated to pursue relief under the beneficial use ordinance ... before the owners’ taking claims were ripe." As to whether a temporary taking claim can accrue before the BUD process is completed, the Bauknight panel held it cannot. The panel does, however, agree that the Bauknight plaintiffs' taking claims -- if they had any -- were ripe following the BUD decision in 2002. ("As a preliminary matter, the owners’ taking claims are ripe for judicial consideration.")

The difference between Bauknight and the Collins and Shands claims lies in the fact that the Collins and Shands plaintiffs were not granted building permits following their BUDs. The 11 Collins plaintiff-landowners received BUDs stating that they had been "deprived of all beneficial use of their property" and were "entitled to just compensation." However, neither the County nor the State commenced eminent domain proceedings to acquire the properties, and "just compensation" was never paid. In Shands, the City of Marathon's BUD Special Master recommended the City issue a building permit in order to avoid paying just compensation, but the City Council told the landowner to pound sand -- and then stuck its collective head in said sand.

The Bauknight panel consisted of Chief Judge David Gersten and District Judges Gerald Cope and Richard Suarez. Judges Gersten and Suarez also sat on the panel that heard oral arguments 11 weeks ago in Collins and Shands, along with District Judge Juan Ramirez. We are confident the Gersten-Suarez-Ramirez panel will reverse Judge Audlin's erroneous dismissals in Collins and Shands in the not-too-distant future.

Click here to see the latest Third DCA opinions, including the Bauknight decision posted yesterday (the Court's opinions are posted at 10:45 AM on Wednesdays).

Oral Arguments in Collins and Shands Taking Cases

This morning, the Third District Court of Appeal -- sitting in Key West -- heard oral arguments in the appeals of Collins v. Monroe County & the State of Florida, and Shands v. City of Marathon. Both cases were dismissed last year -- by freshman Circuit Judge David Audlin -- on grounds that defied common sense. The panel, consisting of Chief Judge David Gersten and District Judges Richard Suarez and Angel Cortinas, had numerous questions for the attorneys and, on the whole, appeared concerned with the governments' theories of the two cases. Judge Suarez described the governments' explanation of the Beneficial Use Determination (BUD) procedure as a "gotcha," while Judge Cortinas opined that the BUD process simply reinstates a landowner's right to sue for a "facial taking," even after the 4-year Statute of Limitation has run. In the Shands case, counsel for the City of Marathon argued that this could go on for "a million" years. So what? The Judges agreed, as this is how the ordinance reads!

In my 40+ appearances before the Florida District Courts of Appeal (and seven before Federal Circuit Courts of Appeal), I have never seen such an engaged panel of judges. I usually leave oral arguments with no clue what the outcome will be. Today was different.