Reverse Chronology: Big Pine Key - No Name Key Class Action
 

red ball  January 23, 2009. The State and Monroe County argued Motions to Dismiss the Estate of Lightner complaint. There were no statute of limitations arguments raised, just ripeness and jurisdiction. The government lawyers did not understand our Amended Complaint and, as a result, issues were argued that were not raised, and not argued that were raised. Judge Jones took the Motions to Dismiss "under advisement." After a few days of rumination, we decided the Complaint could have been clearer, and that one of our claims (a Federal substantive due process claim) may not be viable if our argument is solely based on Florida law. An agreement was reached, allowing us until February 17, 2009 to serve a Second Amended Complaint. [As I wrote this on February 5, 2009, we have recently been made aware of a strongly-worded regulatory taking decision (favoring the landowner) that came out in early January 2009. This decision, resurrecting two US Supreme Court "taking" decisions from the early 1990's (Nollan and Dolan, for the cognoscenti), has given us some food for thought in dealing with the unconstitutional exaction problem in the Florida Keys.]

red ball December 31, 2008. The Third District Court of Appeal REVERSED Judge Audlin in the Collins and Shands cases. This means the Beyer, McCole, and Sutton cases will also be reversed (actually, remanded "for further consideration in light of Collins and Shands.")

red ball September 26, 2008. While waiting for the Third District Court of Appeal to rule on Collins and Shands, and also on Beyer, McCole, and Sutton, we served an Amended Complaint in the BPK-NNK Class Action regulatory taking case on September 26, 2008. The Amended Complaint included the following amendments and changes.

1. The major change made in the Amended Complaint was the addition of two Due Process Counts, one under the United States Constitution and 42 U.S.C. 1983 (Civil Rights Statute), and a second under the Florida Constitution, claiming that the Tier system on Big Pine and No Name Keys is unconstitutional on due process grounds. The two Regulatory Taking claims (facial and as-applied) in the original Complaint have been consolidated into one count under the Florida Constitution, and a new Count added to state a claim under the United States Constitution and 42 U.S.C. 1983.

2. It added the State as a Defendant and deleted four Plaintiffs who are Plaintiffs in other regulatory taking lawsuits against the Defendants. (We had previously voluntarily dismissed the four.)

3. It omitted a Temporary Taking claim based on the rolling development moratoria that began in 1992. (We had voluntarily dismissed this claim already.)

4. It corrected the numbers of parcels affected by the near-absolute prohibition on development within Tier I. Instead of "approximately 1,725" undeveloped Tier I parcels on BPK and NNK, there were between 1,279 and 1,310 such parcels in private ownership as of July 16, 2008. (A new GIS data file, that identifies the Tier designation of every parcel, became available after the Complaint was filed. And over 100 Tier I parcels were transferred to the State or County since the Complaint was filed.)

red ball July 2, 2008. On July 1, 2008, the Supreme Court of Wisconsin (yes, the uber-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).) Read the opinion in Town of Rhine v. Bizzell, et al., 751 N.W.2d 780 (Wis 2008). 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.

red ball June 30, 2008. Oral arguments were had in the Collins appeal, as well as another regulatory taking appeal, Shands v. City of Marathon (a Pacific Legal Foundation case that Judge Audlin dismissed in 2007), before a 3-judge panel of Florida's Third District Court of Appeal. The arguments went very well for Collins and Shands, and very poorly for Judge Audlin and his government lawyers. (Ultimately, on New Year's Eve 2008, Judge Audlin's dismissals in Collins and Shands were reversed!)

red ball March 2007 -- July 2008. During the remainder of 2007, and through June 2008, we had to deal with a newly-enrobed Key West Judge, David Audlin, who was determined to dismiss every one of our regulatory taking cases in what had been the court of retired Circuit Judge Richard Payne. Judge Audlin dismissed our 11-plaintiff regulatory taking case, Collins, et al. v Monroe County & the State of Florida, on June 1, 2007, after a hectic, unprofessional display of pretrial gamesmanship by the Judge and the government lawyers. After we filed our Notice of Appeal in Collins (which we won, by the way, 18 months later), the County's lawyers took Judge Audlin's theories into Judge Garcia's Plantation Key courtroom, convincing Judge Garcia to dismiss Sutton v. Monroe County, another regulatory taking case, in December 2007. In 2008, Judge Audlin dismissed two more of our taking cases, McCole v City of Marathon and Beyer v. City of Marathon, on the same ridiculous ground. Under the circumstances, we were (a) too busy, and (b) concerned about a "monkey see, monkey do" tendency in our elected Circuit Court judges.

red ball February 1, 2007. Monroe County filed a motion to transfer the case from Plantation Key to Key West. That motion was granted February 13, 2007. On March 5, 2007, the case was transferred to Circuit Judge Mark Jones, and given case number CA-K-07-280.

red ball December 18, 2006. We filed a class action lawsuit against Monroe County, with twelve Representative Parties (Plaintiffs). The lead Plaintiffs/Representative Parties are Nellie Lightner and Virginia Sadler, who own over $10 million worth of property in the Port Pine Heights Subdivision on Big Pine Key. The 12 Representative Parties own 50 affected properties on BPK and NNK. The complaint seeks invalidation of the "tier" land development regulations on Due Process grounds, and for payment of Just Compensation as required by the Florida and United States Constitutions.