Homevoters Oust Moderate Commissioners: Property Thieves Coming Back

Florida Keys Homevoters turned two Monroe County Commissioners out of office in this week's primary, and retained one who should have been relieved of duty. Sonny McCoy and Dixie Spehar, two of three Commissioners who had been voting as a block recently to return some sort of common sense to the Keys, were defeated rather decisively. Ms. Spehar was drubbed by tree-hugger Kim Wigington, 67.0% to 30.6% (2.4% abstaining). Sonny McCoy didn't do much better, losing to Carlos Rojas by 59.9% to 37.1% (3.0% abstaining). Commissar Sylvia Murphy -- who has never seen a piece of vacant property that should be used for anything other than conservation -- kept her seat by defeating Sewer Board Chairman Gary Bauman by a mere 55.7% to 40.2% (4.1% abstained). Ouch!

Even though all three Commissars face opposition in the November general election, Monroe County Commissioners have all run as Republicans for years -- but Keys' "Republicans" are all over the political spectrum, from left of Barack Obama to right of Attila the Hun. The three challengers -- Democrats challenging Mr. Rojas and Ms. Wigington and a "no-party-affiliated" candidate (actually a client of ours, Sal Gutierrez) challenging Ms. Murphy -- are not likely to prevail in November.

It is fair to say that, come November, we will see the County shift back to a "steal the land and damn the torpedos (i.e., lawsuits), full speed ahead" mentality. This go-around, the new Commissars will have a plethora of pleadings on their plate. And Monroe County will no longer be able to waste millions of taxpayers' dollars on outside counsel (at rates as high as $750/hour).

For a discussion of Homevoters, see: William Fischel, The Homevoter Hypothesis, Harvard Univ Press 2001 -- Click on title of this post for a link to this book on Amazon.com.

Due Process Challenge to ROGO Coming

In addition to the lawsuit challenging the constitutionality of Islamorada's "BPAS" ordinance, we are preparing a lawsuit challenging Monroe County's rate-of-development con game and confiscatory zoning regulations. This will consist of substantive due process claims against the County and the State, by several landowners. We do not contemplate a class action for several reasons, but primarily the complexities of dealing with a number of confiscatory (and, therefore, unconstitutional) regulations, state rules, and comprehensive plan provisions. If the regulations can be invalidated by a handful of landowners, it will become difficult for the government to continue applying them to other landowners.

We believe there is an excellent chance to remove the 255 permit/year growth cap, as well as the "ROGO" ordinance itself, and a good chance of removing the confiscatory zoning categories (NA, SS, SR, etc) unless the County or State decides to condemn all those properties and pay full Fair Market Value for them. In an eminent domain proceeding, the ROGO and confiscatory zoning regulations will be ignored (condemnation blight), and landowners will be paid as if their property is buildable.

Given the state of the economy, there is not a chance in Hell that Monroe County will condemn as much as a square foot of land. The State may have had the money to do so, but now that the Governor has decided to pay $1.7 Billion to buy Big Sugar, it is doubtful that the State will initiate eminent domain proceedings in the Keys -- at least in the near future.

It is sad that thousands of landowners "voluntarily" sold their Keys property to the State over the past 15 years. But, as then-Chief Judge Schwartz, of the Third District Court of Appeal, reminded us several years ago, "the courts do not exist to save people from the use of their pens." Maybe someone will think of a way to unwind some of those sales....

Existing and potential clients should call me or Andy Tobin to talk about the differences between invalidation and "taking" relief, and the specific application of these principles to their individual properties.

No-Use Zoning Held Unconstitutional on SDP Grounds

On July 1, 2008, the Supreme Court of Wisconsin (yes, the ultra-liberal court that decided Just v. Marinette County in 1972) ruled that when a land use district has no "as-of-right" uses, said regulation is unconstitutional on substantive due process grounds. (Think Lochner v New York, 198 US 45 (1908).) Click on the title of this post to view and download a copy of the opinion in Town of Rhine v. Bizzell, et al., 2008 WI 76, from the Wisconsin Supreme Court's website.

Sound familiar, Keys landowners? Do I hear "Tier One?" --- "red-flag wetlands?" --- Offshore islands, anyone? It's long past time to start challenging Monroe County's (and its municipalities') confiscatory land "lack-of-use" regulations, starting with the bogus "rate-of-development caps," and working our way through the "tier system" and the local wetland regulations. Oh, and there are no statutes of limitation on constitutional challenges to ordinances or statutes. The ordinance in Wisconsin had been in effect over 20 years before Bizzell, et al., took it down.

Thanks to Pacific Legal Foundation for the heads-up on this positive development.

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.

Islamorada Rate-of-Development Ordinance Challenged as Unconstitutional on Due Proces Grounds

On May 27, 2008, we filed a regulatory taking and substantive due process Complaint against Islamorada, for an out-of-state landowner who owns a 4-acre, undeveloped parcel on the ocean, with (god-forbid!) trees. We have not served it yet, for several reasons (including a companion suit against the County that has not been filed yet). But, local reporter Robert Silk discovered the Complaint three days ago and it will probably be in the newspaper by Wednesday.

Robert Silk characterized this latest action as a "full-blown attack" on the Village's Rate-of-Development ("ROD") ordinance (local name = BPAS), and he is correct. Four years ago, the Massachusetts Supreme Court held an ROD ordinance unconstitutional (813 NE 2d 843). The town of Hadley had enacted an ROD due to a (theoretical or real, it matters not) infrastructure deficiency (think "hurricane evacuation"). Fifteen years later, said "deficiency" still existed and the supreme court declared the ROD ordinance unconstitutional. I believe that somewhere in the neighborhood of 30 to 40 Massachusetts towns have since lost similar challenges to their ROD ordinances. (This was a real popular gimmick 15-20 years ago.)

The Florida Keys have been under majoritarian rule for the past twenty years, and the owners of undeveloped land, especially owners who do not vote in the Keys, have no worse enemy than the "got-miner," "no-growth," local voters (and their elected Commissioners) who are solely concerned with maintaining the highest possible market values for their HOMES in the Keys. PREVENTING new construction is what these HOMEVOTERS believe will maintain the value of what is their only significant asset, or at least the largest portion of their net worth.

In 1787, in Federalist #10, James Madison warned the nation-to-be that majoritarian rule (he called it "faction") was the major evil the new Republic had to keep under control -- but he recognized that majorities have long been known to protect their financial interests by destroying the rights of the minority. In 1788, Madison -- then drafting the Bill of Rights to be enacted by the First Congress -- in a letter to Thomas Jefferson, said "the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the government," and "where the power ... is in the many not in the few ... it is much more to be dreaded that the few will be sacrificed to the many."

Madison was correct. The problem is more severe today in small communities like ours, where the privileged Commissioners -- and their majoritarian HOMEVOTER supporters -- can literally drive the value of undeveloped property (owned by the voting minority) to zero. If you are in the minority, you cannot remove these HOMEVOTER ELECTED local officials, but you can:

(1) refuse to sell your land to the State or County, or to individuals seeking points, and
(2) sue them for Just Compensation (the Fair Market Value it would have with the maximum possible number of permits before they changed the regulations and prevented you from building) for the diminution of your property's value.

The Founding Fathers, pushed by Madison, put your right to sue the bastards in the Bill of Rights, because they knew this could happen to you. And, guess what, it has!

West-Richardson Post-Trial Activity

On June 2, 2008, 10 days after the verdicts came in on the West and Richardson parcels (on North Key Largo, where most landowners have not been able to disturb a stick since 1982), we filed a Motion for New Trial in the West case (the $5.06 million verdict). We received the State's response on June 13, 2008 -- strongly suggesting that our motion be denied. It is likely that the Judge will rule on our motion fairly quickly, and we will post that decision when we receive it.

The State's representatives have made it clear all along that the State intends to appeal any verdicts in this case. The obvious reason is that the State does not want to have to pay Fair Market Value all of a sudden, when it has been stealing Keys' landowners' properties for a miniscule fraction of their value for over 15 years. Come to think of it, the County falls into that category as well.

The best advice we can give to Keys' landowners at this time is "don't sell your undeveloped Key's property to anyone "-- not the State, not the County, and not to individuals who want the property for "points" -- unless you are being offered the Fair Market Value you would get if the property had a building permit (or more than one, if it is acreage and large enough to support several homes or businesses).