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
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
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
TIIF v Key West Conch Harbor, Inc. (Fla. 3d DCA 1996)
Jun 19, 1996
OUTCOME: Landowner (Plaintiff) Prevailed
Defendant board of trustees challenged a trial court decision that held plaintiff possessor of land was, by virtue of improvements made by its predecessor in interest, vested with fee simple title to s...ubmerged land lying within 500 feet of its concrete bulkhead. The appellate court affirmed the decision of the trial court with modifications. The Butler Act (Act), Fla. Stat. ch. 8537 (1921), transferred title of the disputed land to plaintiff because dredging was not done for the sole purpose of filling another parcel of land. Instead, the dredging was done to the waters around a dock that improved commerce under the Act. The submerged land in dispute was located either directly beneath the dock improvement or within 50 feet of the dock. Therefore, plaintiff was entitled to title and fee simple interest in the disputed land subject to a navigational easement for public benefit.
Land use and zoning
City of Key West v. Donald Berg (Fla 3d DCA 1995)
May 24, 1995
OUTCOME: On remand, Berg prevailed
Although this decision appears to be a loss for the landowner, the opposite is true. Key West v Berg established the principle that a landowner must first exhaust Key West's (and Monroe County's, Islam...orada's, and Marathon's) administrative "Beneficial Use Determination" procedure before suing for a Regulatory Taking. The flip side of this decision is that no regulatory taking case in the Florida Keys "ripens" (i.e., matures) until the BUD procedure has been requested and completed -- even if that takes 50 years!
In Mr. Berg's case, the City realized it would lose the case, and settled by paying Berg $3.5 million for the seven acres of wetlands on the Atlantic Ocean -- that the City had converted to wetlands with its stormwater runoff "non-system."
A petition for review was filed with the Florida Supreme Court (by a different attorney), which denied review on October 27, 1995, at 663 So. 2d 629.)
Land use and zoning
Ian & Tanya Koblick v Florida Dept Environmental Protection and TIIF (Fla 1st DCA 1995)
Mar 01, 1995
OUTCOME: Plaintiff-Landowner prevailed
This appeal involved a dispute over the construction of a private dock on state-owned submerged lands within John Pennekamp Coral Reef State Park. Despite the Board of Trustees' adoption of a policy st...rictly enforcing the "no construction" rule in Pennekamp Park on April 12, 1990, the appellants had a consent of use by rule as of February 3, 1988, when the Department of Environmental Regulation determined the proposed dock was exempt from permitting requirements. The record clearly indicates that had Mr. Koblick simply built his dock at that time, rather than attempting in good faith to work through agency bureaucracy, he would have had a properly permitted dock under the policy adopted April 12, 1990. Accordingly, the appellants should not have been denied permission to construct their dock, and therefore reverse the final order denying such permission
Land use and zoning
Monroe County School Board, et al. v Dept of Community Affairs & Monroe County (Fla. 1st DCA 1994)
Dec 21, 1994
OUTCOME: School Board Lost
Monroe County and the State of Florida worked to prevent the construction of a badly-needed school on Big Pine Key, which is the primary source of affordable housing for persons working in the City of ...Key West. We agreed to represent the School Board for free, in order to see the new school constructed on Big Pine Key.
Land use and zoning
Monroe County v Hemisphere Equity Realty, Inc., and Texas Largo, Inc. (Fla 3d DCA 1994)
Mar 29, 1994
OUTCOME: Reversed, Landowner lost
Appellee developer purchased realty and development rights from another developer and appellee agent represented both developers. Appellees failed to comply with a county code which required completion... of construction within two years of approval, and appellant county posted a stop work order and denied appellee's effort to reinstate project approval. The trial court reversed and enjoined appellant from interfering with the development. On appeal, the court reversed the injunction and remanded with directions to reinstate judgment in favor of appellant. No rare instance or unusual circumstance existed to support equitable estoppel against the state. Appellee developer was obligated to abide by the same regulations that bound the original developer, and to complete the project within two years or seek an extension of time.
