Eminent domain case with "compensation blight" feature. Property's "highest and best use" is that prior to the date the State made apparent its intention to condemn the property (Feb. 9, 1982). The "ta...ke" was in 2004, and 2004 Fair Market Values were applied to H&BU in 1982. The fact that there was no real market for the property in 2004 was not to be considered by the jury.
The State plans to file a Motion for Rehearing, Certification of Conflict, and probably will seek discretionary review from the Florida Supreme Court.
Land use and zoning
Collins, et al. v. Monroe County & State of Florida
Dec 31, 2008
OUTCOME: 50 character limit is too short
Eleven landowners sued Monroe County and the State of Florida for regulatory takings. Monroe County spent approximately $1.5 million defending this lawsuit. Chief Circuit Judge Richard Payne denied the... governments' Summary Judgment motions in late 2006, just before he retired. In 2007, a pro-government lawyer took Judge Payne's seat, reversed Judge Payne's denial of the governments' summary judgment motions, and dismissed Plaintiffs' suit on Statute of Limitation grounds.
The District Court of Appeal reversed, holding that -- at least in the Florida Keys -- a unique administrative remedy known as a "Beneficial Use Determination" must be exhausted before a regulatory taking claim is "ripe." And, until the claim is ripe, the statute of limitation does not start to run. As the panel noted during oral argument, the BUD procedure has no time limitations, and a landowner could "wait a thousand years" before availing themselves of the process.
Two things to be noted are (1) that there are one or two other jurisdictions that have something very similar to the Florida Keys' BUD process, and (2) the Florida Supreme Court has firmly rejected "no-use" zoning as unconstitutional on Due Process grounds. The BUD, invented here in 1986, was adopted in order to avoid the County's confiscatory 1986 Land Use Plan being struck down by a court within days after it went into effect.
Land use and zoning
Monroe County & The State of Florida v Galleon Bay Corp. (Fla. 3d DCA 2007)
Apr 04, 2007
OUTCOME: New Trial Order Affirmed
After an inverse condemnation (jury) trial in which Monroe County presented improper expert testimony on Fair Market Value, the landowner (Galleon Bay Corporation) moved for a new trial. Judge Payne gr...anted the motion. The County and the State then appealed Judge Payne's new trial Order to the Third DCA. The order was affirmed.
Unfortunately, Judge Payne retired and his successor, David Audlin, exhibits substantial bias in favor of government. Judge Audlin has taken it on himself to reverse as many of Judge Payne's orders as he can. The new trial in the Galleon Bay case has been tentatively scheduled for March of 2009 -- two years after the Third DCA affirmed the order above.
Land use and zoning
John M O'Daniel & Theresa Hills v Monroe County (Fla 3d DCA 2005)
Dec 07, 2005
OUTCOME: Frivolous Attorneys' Fees Denied
Plaintiffs prevailed in a Vested Rights claim against Monroe County. Monroe County dragged the case out as long as possible, in this instance two years and seven months. In the bench trial, Monroe Coun...ty rested immediately following the presentation of the Plaintiffs' evidence. The County did not call a single witness to the stand, or offer a single piece of evidence.
Plaintiffs then moved for attorneys' fees for frivolous litigation. Judge Garcia denied the motion and the Third DCA affirmed, holding that Plaintiffs were required to give the County 30 days notice of their frivolous attorneys' fee claim, in order to give the other side a chance to retract or amend its defenses. Since the Plaintiffs could not have known the County was going to stand mute (it had provided a list of witnesses and exhibits prior to trial), they could not give the 30-day notice after the fact.
Land use and zoning
Monroe County et al. vs. Ambrose et al. (Fla 3rd DCA 2003)
Dec 10, 2003
OUTCOME: Appellate Court Reversed Trial Court
Trial court held 1972 statute protected owners of platted lots, in areas designated "Areas of Critical Concern" by legislature, from any alterations whatsoever in their rights to build on said lots. Fl...orida's Third District Court of Appeal ignored both the plain language and the legislative history of the statute (Sec 380.05(18), F.S.) and imposed the higher burden of proof of common-law vested rights. The 1972 Legislature had explicitly rejected common-law vested rights. This is an example of the agenda of Florida appellate judges appointed by Democratic Governors -- something every Florida property owner should think about when they go to the polls.
Because of the adverse decision in Ambrose, landowners in the Florida Keys Area of Critical State Concern have had no alternative but to sue the State and Monroe County for Just Compensation for the diminution of value -- sometimes to zero -- of their undeveloped land. At least the Third District Court of Appeal, in Ambrose, acknowledged that this would be the logical next step.
This decision was the subject of a petition for certiorari to the Florida Supreme Court. That petition was denied on July 9, 2004, at 880 So. 2d 1209 (Fla 2004).
Administrative law
Great House of Wine, Inc. v. Florida Dept. of Bus. Reg., Div. of Alcoholic Beverages & Tobacco (Fla 3rd DCA 2000)
Mar 29, 2000
OUTCOME: Plaintiff's point made.
As in most states, alcoholic beverage distributors enjoy monopoly protection under state law. Great House of Wine, a small wine distributor, challenged some of the enactments favoring giant monolithic ...distributors. The Third District Court of Appeal sided with Great House of Wine, suggesting that it should establish its facts in Circuit Court rather than through the administrative "declaratory statement" process.
Land use and zoning
Thomas & Nedra Burnham v Monroe County (Fla. 3d DCA 1999)
Jul 28, 1999
OUTCOME: Inverse Condemnation Case Dismissed
Appellant property owners sought review of a judgment from the Circuit Court for Monroe County (Florida) which declared that Monroe County had not taken their property in an inverse condemnation procee...ding and that it's rate of growth ordinance, Monroe County, Fla., Ordinance 16-1992, was constitutional.
The Burnhams had applied for a building permit in 1992. Due to the enactment of a rate-of-growth ordinance (ROGO), and the Burnhams' unwillingness to add "extras" to their building plans in order to win "ROGO points," they had to wait four years and then petition for administrative relief.
The appellate court noted that the "extras" were minor, and that the ROGO point system did not constitute a "regulatory taking."
Administrative law
Donald Gagnon v Bd of Trustees of the Internal Improvement Fund (TIIF) of the State of Florida (Fla 2d DCA 1999)
Apr 09, 1999
OUTCOME: Plaintiff prevailed
Mr. Gagnon initiated an action in Circuit Court against the TIIF to confirm title to certain submerged lands. The TIIF boarrd contended that the action should be dismissed because he failed to exhaust ...all administrative remedies. The trial court dismissed appellant's action. On appeal, the District Court reversed the dismissal order and ordered that Gagnon's action be reinstated. It held that Gagnon had two alternative remedies to quiet title. He could have filed an administrative application to quiet title under rule 18-21.019, or initiated an action in court because Fla. Stat. Ann. § 26.012(2)(g) provided that the circuit courts had exclusive jurisdiction over title and boundaries disputes of real property.
The District Court reversed the decision dismissing Gagnon's action to quiet title because he did not have to exhaust all available administrative remedies to initiate his action. Pursuant to state law, the circuit courts had exclusive jurisdiction to decide title disputes, so Plaintiff had properly filed his action in court.
Land use and zoning
Monroe County v Dorothy S Abbott, et al (Fla. 3d DCA 1998)
Apr 27, 1998
OUTCOME: Writ of Prohibition Affirmed
Dorothy Abbott and more than 50 other landowners had filed petitions in January 1997 for Vested Rights hearings, as allowed for in Monroe County's 1996 Comprehensive Plan. Monroe County also had an ord...inance that limited its choice of Hearing Officers to former judges, the attorney for the Land Authority, and one or two others -- so there was a "pool" consisting of only three possible Hearing Officers.
The County Attorney (James T Hendrick) selected former Circuit Judge J. Jefferson Overby, knowing full well that the petitioners' attorneys, James S Mattson and Andrew M Tobin, had regularly disqualified Mr Overby when he was a Circuit Judge, based on their "audacity" in taking the Judge's improper "rule" to the Third DCA several years earlier, and that the Third DCA had approved of more than one such disqualification.
Mr. Mattson and Mr Tobin had filed the 50+ Vested Rights petitions, and were not inclined to have them heard by their old adversary. So they asked Mr. Overby to disqualify himself. True to form, he refused. Then the 50+ petitioners filed an original action for a Writ of Prohibition with the Circuit Judge who had replaced Mr. Overby - Steven Shea. Judge Shea granted the writ and the County appealed.
At oral argument, Chief Judge Schwartz noted that the ordinance that created such a tiny pool of possible hearing officers was unconstitutional, and that the County's motives in this arena were equally suspect. The Third DCA affirmed Judge Shea's Writ of Prohibition on the very day the Vested Rights proceedings were to begin. Only then did Mr Overby leave the room.
Environmental and natural resources
The UNITED STATES v Parks Banks (U.S. 11th Cir 1997)
Jun 24, 1997
OUTCOME: Federal Government Prevailed
Wetland delineation issue. Landowner's property was over one mile from the nearest water body (Florida Bay). Government claimed it was a "water of the United States" by virtue of a "groundwater connect...ion." Since the recent US Supreme Court decision in Rapanos v US, that tenuous connection may no longer support the Government's theory in Banks.
This decision was the subject of a petition for certiorari with the US Supreme Court, that was denied on January 20, 1998.
This opinion has been cited in 22 federal court decisions and 21 law reviews and periodicals (as of November 2008)
