Big Pine Key - No Name Key Class Action "Taking" Lawsuit

On September 26, 2008, we served Monroe County and the State of Florida with an Amended Complaint in a class action "taking" lawsuit brought by eight owners of 27 undeveloped Tier I properties on Big Pine and No Name Keys. (Estate of Lightner, et al., v Monroe County & the State of Florida, Case No. CA-K-07-280, assigned to Circuit Judge Mark Jones.) You can view or download the Amended Complaint by clicking here or on the title of this post. In July '08, there were about 1,279 to 1,310 privately-owned, undeveloped parcels of land designated Tier I -- and 438 designated Tier II -- on Big Pine and No Name Keys. According to the 2005 County/State Habitat Conservation Plan (HCP), 99.3% of the Tier I parcels on Big Pine and No Name Keys are absolutely unbuildable. (The nine theoretically "buildable" parcels are a fiction intended to inhibit the filing of this lawsuit, and that is a blog post for another day.)

Estate of Lightner seeks two forms of relief from confiscatory regulations, under both the Florida and United States Constitutions. Counts I (US Const.) and II (Florida Const.) are Substantive Due Process counts for declaratory judgments holding the tier system, the HCP, the acquisition of an incidental take permit from the USF&WS, and numerous ordinances and comprehensive plan provisions, invalid as unconstitutional "no-use" zoning. Counts III (US Const) and IV (Florida Const.) are claims for Just Compensation for the regulatory "taking" of the class properties.

According to the HCP, there are 2,214 privately-owned, undeveloped parcels within 500 meters of Lower Keys marsh rabbit (a/k/a "bunny rabbit") habitat on Big Pine and No Name Keys, including 1,535 in Tier I, 510 in Tier II, and 167 in Tier III. Although some of those parcels have been purchased -- at well below fair market value -- by government, most of those 2,214 parcels are also unbuildable. (As the 500m habitat boundaries slice through parcels on the perimeter, some of those parcels, if they are in Tier III, might be buildable someday.)

Estate of Lightner states the elements necessary for designation as a class action, and our next move is a class certification motion. There is sufficient precedent for class action "taking" lawsuits, and there is no real reason for denying a certification in this case. (And, if certification is denied, that order is immediately appealable.) Should class certification be granted, the class will include all non-governmental owners of undeveloped Tier I properties on Big Pine and No Name Keys, and of Tier II and III properties that fall entirely, or almost entirely, within the bunny rabbit circles.

Should class certification be denied by both the trial and appellate court, only named Plaintiffs will be eligible for declaratory relief and Just Compensation. We are opening this case up to all affected Big Pine and No Name Key landowners to become named Plaintiffs. Even if class certification is granted, having additional Plaintiffs can only help us by bringing additional facts to the table, and allow us to invest a larger portion of our time to this lawsuit. Affected Big Pine and No Name Key landowners may join either as a named Plaintiff, or as a non-party who will become a named Plaintiff if class certification is denied. To join the Estate of Lightner lawsuit in either capacity, please call me at (305) 451-3951. You cannot join a lawsuit by e-mail.

P.S. We took a similar route in the multi-plaintiff vested rights lawsuit Ambrose v. Monroe County, where we eventually had over 500 named Plaintiffs. In that case we elected not to seek class action status. We won before the trial court but Judge Payne's decision was reversed by the 3rd DCA acting as legislators instead of judges.

Say "Hello" to Bert (Harris, that is)

We served 41 Bert Harris Act petitions today on Monroe County and the State of Florida, seeking $46.7 million in compensation to the owners of 196 Florida Keys land parcels. These are only a tiny fraction of the number of parcels adversely affected by the Keys' recently-completed land-stealing pogrom (a/k/a "tier zoning"). Thirty-four claimants' properties are in Tier I, which are essentially unbuildable. Seven own Tier II property. For Tier I and II landowners to even compete for a permit, they would be forced to spend on the order of $235,000 for 20 points (Tier I) or $117,500 for 10 points (Tier II) just to begin with the same number of "points" a Tier III landowner starts with. AND they must acquire all but two of those 10 or 20 points by purchasing their neighbors' Tier I lots -- at 4 points apiece -- at the bargain basement prices the government has been paying. If this is not held unconstitutional -- and we will revisit that as each lawsuit is served -- I will eat my favorite hiking hat.

We strongly recommend Tier I, II, and III-A landowners refuse to sell their land at less than the Fair Market Value it would have if it had a building permit -- and flatly refuse to sell to any government agency. The purpose of the Tier pogrom is to force landowners to sell to government, or the other leeches (including the Tier I and II landowners themselves), at far less than the Fair Market Values they would receive in a Condemnation proceeding -- by invoking the legal doctrine known as Condemnation Blight. I have included some Fair Market Value information at the end of this post. If nobody offers that much -- do not sell! Either force the government to condemn, or bring your own inverse condemnation action. Either way, the government pays your costs, attorneys fees, and interest.

In May of this year, an Upper Keys jury awarded over $5 million to our clients, the West and Freeman families, four years (for which they will get another 10% interest/yr) after the State acquired their 20+ acres on North Key Largo for $550,000 in a "quick-take". (See my May 22, 2008 post). Just as in today's pogrom, the West-Freeman property was infected with Condemnation Blight building moratoria -- which allowed us to have the Judge instruct the jury to value the property as if the moratoria never existed. There is a more substantial analysis of Condemnation Blight on my website -- http://MattsonLaw.com.

As it is now public record, I will share with you our appraiser's Fair Market Value analysis that we provided the County and State in several of the Bert Harris Act petitions. These are January 1, 2008, "generic" Fair Market Values -- that need to be adjusted if special conditions exist, such as too little lot area or the need to pay mitigation in order to place fill in a wetland -- for Upper and Lower Keys residential lots only.

Lower Keys Lots: Dry $240,000; Canal $320,000; Open Water $520,000
Upper Keys Lots: Dry $170,000; Canal $405,000; Open Water $610,000