1986 Beneficial Use Determination Ordinance

Held unconstitutional by Circuit Judge Richard Payne in 1991, 3rd DCA affirmed in 1992.

First, the beneficial use provision only provides for relief which is “the minimum necessary to raise the investment-backed value of the property to forty (40) percent of its value immediately prior to the effective date” of the confiscatory regulations. The Fifth Amendment to the United States Constitution, and Art. X, § 6, of the Florida Constitution, require compensation in the amount of 100% of the fair market value, for its highest and best use, of property taken for public use, not 40%. Therefore, the court finds that the beneficial use provision of the Monroe County Code is not an adequate administrative remedy when property has been taken in contravention of the Just Compensation clauses of the United States and Florida Constitutions. Second, the beneficial use provision of the Monroe County Code requires a property owner to attempt to sell his property for 40% of its pre-regulation value, before he is eligible to apply for relief. Here plaintiff would be required to attempt to sell his property for less than the remaining mortgage indebtedness on the property. If successful, plaintiff would lose all of his investment in the property.

IT IS ADJUDGED that § 9.5-262 and 9.5-343, Monroe County Land Development Regulations, as applied to plaintiff’s property, have taken plaintiff’s property for a public purpose without just compensation, in contravention of the Taking Clause of the Fifth Amendment to the United States Constitution, and Art. X, § 6, of the Florida Constitution. The regulations, as applied, are invalid as an unreasonable exercise of the police power. Dade County v. National Bulk Carriers, 450 So. 2d 213 (Fla. 1984). (Quoting the trial court, Payne, J.)

Monroe County v Gonzalez, 593 So. 2d 1143, 1144-45 (Fla. 3rd DCA 1992)

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