February 23, 2011 - Schneider Heirs Dismissed for "Waiting too Long." On February 23, 2011, Circuit Judge Tegan Slaton granted the government's motion for summary judgment against the heirs of Robert J. Schneider. Mr. Schneider had purchased two oceanfront lots on Ramrod Key on September 8, 1964 -- 47 years ago to be more precise. (Mr. Schneider's heirs were Plaintiffs in the 2004 Collins regulatory taking lawsuit) Unfortunately, Monroe County and the State of Florida bamboozled Judge Slaton into dismissing the Schneider heirs from the case -- on the non-existent theory that the Robert Schneider, and his heirs, had "wated too long" to bring this lawsuit.

February 8, 2010 - McCole & Beyer. On February 8, 2010, the 3d DCA heard arguments in Beyer v. Marathon and McCole v. Marathon. The McCole case, as in Sutton v. Monroe County, involved a situation where the landowner applied for a building permit and was denied (sort of). Both McCole and Sutton took no further action for several years, at which time they applied for Beneficial Use Determinations. In Sutton, the 3rd DCA decided that the four-year statute of limitation began to run when her building permit was denied, rather than when her Beneficial Use Determination was issued. We believe this interpretation is incorrect, but the Florida Supreme Court declined to review the decision.

we recommend that landowners NOT apply for building permitS. if one is denied, you should seek a Beneficial Use Determination within 4 years of the date of the denial.

Unconstitutional Exactions, September 9, 2009. Since 1976, the State of Florida and the Monroe County (Florida Keys) Commission have imposed ever-increasing restrictions on the use of Florida Keys property on the fuzzy theory that this will somehow better the universe (at no cost to the State and County taxpayers). In 1987,  the Supreme Court issued its opinion in Nollan v. California Coastal Commission, 483 US 825, that stemmed from a request for a building permit to rebuild the Nollans' oceanfront property with a larger residence.

The California Coastal Commission acquiesced on the condition that the Nollans dedicate a portion of their property as a "viewing easement," that would allow passers-by to see the ocean from the street in front of the Nollans' home. Though many landowners had caved in to the Coastal Commission's demands, the Nollans sued, claiming the easement was an unconstitutional exaction. The Supreme Court agreed, explaining that a permit "condition" must be related to the "impact" of the development approved by said permit. In Nollan, the Supreme Court could not see a connection between the enlargement of the Nollan's home, and the need for passers-by to see the ocean.

In 1994, the Supreme Court issued Dolan v City of Tigard, 512 U.S. 374, with a "proportionality" requirement for exactions imposed on private property owners. The Dolan decision has always been difficult to articulate. However, the 2006-2008 Utah Supreme Court has done a nice job explaining Dolan.

In B.A.M. Development v. Salt Lake County (I), 128 P. 3d 1161 (Utah 2006), and B.A.M. Development v. Salt Lake County (II), 196 P. 3d 601 (Utah 2008), the Utah Supreme Court reduced the Dolan "proportionality" requirement to dollars. In short, if the cost to the taxpayer exceeds the costs of its improvements (to the public), the taxpayer has been impermissibly overcharged. The difference is a Fifth Amendment taking.

This could well become Monroe County's Achilles heel. For more, see my Blog entry for September 9, 2009, at mattsonlaw.blogspot.com.

August 17, 2009. Are the Florida Key Deer still endangered? The Florida Key deer were listed as an endangered species in 1967. Since then, the herd has increased in numbers and the individual deer have become heavier and healthier today than they were in 1970. See Harveson, et al., "Impacts of urbanization on Florida Key deer behavior and population dynamics," 134 Biological Conservation 321-331 (2007), available at http://www.sciencedirect.com. Harveson, et al., concluded Key deer prefer urbanized habitat on Big Pine Key, and that, in 2003, they were 10% heavier than those living in 1973. For more, see my Blog entry for August 17, 2009, at mattsonlaw.blogspot.com.

August 10, 2009. Owners of undeveloped property in the Florida Keys will appreciate Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed Cir. 2008), rehearing denied, 556 F.3d 1329 (Fed. Cir. Feb. 17, 2009). The Court of Appeals for the Federal Circuit held that property exactions for Endangered Species purposes are  unconstitutional takings. The U.S. Solicitor General requested two extensions of time to file a petition for a writ of certiorari to the Supreme Court. The last extension expired on July 17, 2009, and no certiorari petition was filed. See Blogs of May 10 and August 10 at http://www.mattsonlaw.blogspot.com.

June 2009. For the past fifteen years, the State of Florida and Monroe County have been literally stealing land from Florida Keys landowners. To those remaining landowners who have so far resisted the governments' offers of 10 to 15 cents on the dollar, we say stand pat, sit tight, and do nothing. Ignore their offers. If the government does not begin condemnation proceedings, you can force the issue by suing the government for inverse condemnation.

We have posted four judicial decisions that describe similar deceptive tactics by the United States in the acquisition of Cape Cod National Seashore, Point Reyes National Seashore, Assateague Island National Seashore, and Voyageurs National Park. In the Voyageurs National Park scandal, the average Fair Market Values reached by juries, compared to the governments appraisals and offers, averaged 8.85 times the amount the government offered before filing condemnation suits. In other words, the Government was offering only 11.3 cents on the dollar. Does this seem fair?

If you  are not convinced -- read the Condemnation Blight Order in the West case. You will see what the State and County have done, and how to beat them.

The Florida Keys a National Park?

September 27, 2008. The Monroe County Administrator told the Florida "Cabinet" that the solution to the Florida Keys' land acquisition mess is to get Congress to designate the Keys a National Park. That, he surmised, would somehow bring $1.2 billion to the table for buying all the Tier I and II land in these regulation-abused islands. See my September 27, 2008, blog entry for additional comment on the National Park nonsense.

There are some similarities between our Florida Keys cases and other park-building cases across the United States. Look at these decisions.

1. First, look at the 1982-2007 North Key Largo park-building effort, where the State did everything it could to intimidate people into giving up their property for a fraction of its Fair Market Value. Click on the following link to read Judge Garcia's April 9, 2007, order in State of Florida v West.

2. Read a classic Claims Court decision: Althaus v. United States (Voyageurs National Park). The National Park Service's behavior in this  park-building case was reprehensible, but will sound familiar to Florida Keys landowners. The following quote from Althaus is from the Nat'l Park Service's version of Acey Stinson.

"I am in charge of acquiring lands for the National Park Service. Even though we know what your lands are worth, we are going to try and get them for 30 cents on every dollar that we feel they are worth. Of course, you don't have to accept this 30 cents on the dollar. We will let you wait for a couple of years. If you don't take 30 cents on the dollar right now, you wait for a couple of years. After a couple of years if you wont take 30 cents on the dollar, we are going to condemn it. We will condemn your property. You know what that is going to mean? That means that you are going to have to hire an expensive lawyer from the city and he is going to take one-third of what you get. Plus, you know who is going to have to pay the court costs. You are. That is in addition to these expensive lawyers."

3. Click on these links to other park-building cases, where the government played fast and loose with landowners' rights. Drakes Bay Land Co. v United States,  (Point Reyes National Seashore); Assateague Island Condemnation; and US v Certain Lands in Truro (Cape Cod National Seashore). In all of these cases, you see the same kinds of intimidation and underhanded tactics that the State of Florida and Monroe County are using in the Florida Keys (the first example being in the Florida Keys).