January 30, 2012 -  DeSoto County  Bert Harris Act case. The most humorous argument raised by DeSoto County was the notion that a 1-year statute of limitations applied, wehn it's four years. You can't even fit the various statutory obligations in six months. Oh well, branching out should be so bad, or is this a rerun of the Mattson & Tobin office we had in Naples, in the late 1990's. At least then, our clients paid their bills every month.

January 9, 2012 - Hearing in P.I.E. vs DeSoto County. This was DeSoto County's Motion to Dismiss, alleging that the Bert Harris Act would not sweep in a sand-mining operation in DeSoto County back in the days (2005-08) when these businesses were very profitable. The Plaintiff in this case argues that it could have earned $11 million by selling construction materials -- until DeSoto County decided to shut down his proposed mining project. (Note that when we say "sand," we are talking about something that has occurred all over South Florida in the past 50 years. People dig "lakes," sell the sand, and then build expensive residences around the "lakes." Hey, that's how we do it here!

January 5, 2012 - Oral Argument in Emmert v. Monroe County & State of Florida. Oral argument before 3rd District Court of Appeal, 9:30 AM. At issue is whether Mrs. Emmert had a vested right to build a residence on her Ocean Reef Club parcel -- given that she purchased it in 1983, and Monroe County vested the Ocean Reef Club property from the adverse impacts of the 1986 Monroe County Comprehensive Plan.

January 4, 2012 - Initial Brief due in Galleon Bay Corporation v. Monroe County & the State. We had to seek a delay in this appeal. This case has been with us since the late 1980's, and the Record on Appeal is over 6,600 pages. We could not put together an initial brief by December 5th, the original target date. As of yesterday, we had only been able to wade through 2,500 pages of the record.  The landowners have been to Hell and back, most recently by a Circuit Court judge who did not understand the first thing about regulatory taking law. It should come as no surprise that elected Circuit Court judges are rejecting regulatory taking cases - not just in Monroe County, but also in Orange County, and Jacksonville. From what colleagues tell me from other parts of the State, elected judges are dismissing taking cases like flies. We can hope that the District Courts of Appeal - where judges do not have to run for re-election - turn these dismissals around. There might be some prospect of bringing Due Process claims in federal courts - but the federal courts have avoided these "state matters" for a long time.

Galleon Bay Brief Postponed: December 6 - 20, 2011. Break time!. Your webmaster will be visiting San Francisco -- and the California Wine Country -- for the 44^th year in a row. I remember when I used to book rooms in fleabag hotels downtown, and in Motel 6's, but I never gave up on my  pilgrimages to  wine country. I enjoyed taking colleagues on wine tours back in the '60's and '70' but, occasionally, forgot which tour (or planet) we were on. It never seemed to bother us at the time, but I suppose we were a bit of a road hazard in those days. I am also sure that many of you remember the Great House of Wine that we operated from 1997 -- 1983.

San Francisco, Santa Barbara, and Michigan. I have been doing this for a long time -- 44 years for the profile -- since Spring of 1967, when I attended my first "official" American Chemical Society meeting in San Francisco as a graduate student at the University of California, Santa Barbara, or UCSB (that's another story), having graduated from the University of Michigan Chemistry Department.in December 1966, under the tutelege of Harry B. Mark, Jr. and Walter J. Weber, Jr.

A few months later, after returning to the University of Michigan in 1967, my advisors and mentors, Harry B. Mark, Jr. and Walter J. Weber, Jr., played a huge role in getting me through my Ph.D. dissertation by the Fall of 1969. Harry Mark tragically died nearly 10 years ago, but Walt Weber is active as hell. People like Harry Mark and Walt Weber are those people who made our country function at a high technological level. We need a lot more people like that today. Thank you, Harry and Walt!

The Past Year:

November 21, 2011  - Oral Argument in Collins & Magrini v. Monroe County, et al. Collins and Magrini seek temporary taking compensation for the time Monroe County took to issue them building permits on Big Pine Key. The 3rd DCA now posts the names of the judges who will sit on the panels during the next week. Our argument was scheduled to be heard by District Judges Richard Suarez (who wrote the excellent decision in Collins, et al. v. Monroe County, et al., released on New Years Eve, 2008), Juan Ramirez (who was on the panel in three of our appeals, the Galleon Bay vested rights case, Beyer, which we won, and Sutton, which we lost), and Frank Shepherd, who came to the Court of Appeal in 2003 from the Pacific Legal Foundation. When we arrived at the Court on Monday morning, Frank Shepherd had been replaced by retired District Judge Alan Schwartz. Judge Schwartz just did not understand why anyone should be compensated for a long delay in the issuance of a building permit, because once the permit was issued the property value went up, right? The next day, we served a Notice of Supplemental Authority in which we identified four good examples (there being dozens of equally good examples) of why Judge Schwartz is wrong.

Here are the four authorities we cited in our Notice of Supplemental Authority: Wheeler v. City of Pleasant Grove, 833 F. 2d 267 (11th Cir. 1987); Tampa v. Redner, 852 So. 2d 270 (Fla. 2d DCA 2003); 520 East 81st Street Associates v State of New York, 780 N.E. 2d 518 (NY 2002); and 520 East 81st Street Associates v. State of New York, 799 N.Y.S. 2d 1 (NY App. Div. 1st Dept 2005). Feel free to send me an email, at jmattson@mattsonlaw.com.

November 10, 2011  - Collins, et al., v. Monroe County & State of Florida. We filed a Notice of Appeal for the remaining Plaintiffs in the Collins case. This put our appellate caseload at five simultaneous appeals.

October 27, 2011 - Collins & Magrini Reply Brief Served. Collins and Magrini's claims were dismissed by Judge Tegan Slaton because they had received building permits 111 and 125 months, respectively, after they had applied for said permits. The Magrini property was sold, and a home exists on it today. The Collinses received a building permit but have not constructed a building on their lot. (People's needs change when a local government hangs them out to dry for 9 to 10 years.)

October 14, 2011 - Collins, et al. v. Monroe County, et al., Dismissed. Judge Tegan Slaton, after reviewing the nine-day April 2011 trial in this case, dismissed the claims of seven of the remaining plaintiffs -- while granting relief to the eighth, Don Davis.

September 19  to October  7, 2011 - South Africa Photo Safari. Your webmaster and his wife spent 14 days in South Africa -- and 5 days getting there and back through London. She attended a conference in Simon's Town, in southwest South Africa, near Cape Town, after which we flew to Nelspruit, then drove to a private game preserve in a place called Mala Mala. After three days in Mala Mala, we spent another two days driving and photographing in Kruger National Park. We returned with over 5,000 photographs. That should definitely keep us busy for a while.

August 3 to 9, 2011 - Aspen, Maroon Bells, & Colorado Rockies. Your webmaster and his wife took their new digital Nikons to Aspen, Colorado, including the Maroon Bells and the Colorado Rockies, as a "dry run" to get ready for our upcoming trip to South Africa. I will say this about digital photography. Digital camera sensors have a linear response to light, while film has a logarithmic response. This becomes apparent in the highlights (especially sky and clouds) and shadows, where digital sensors are worthless. On the other hand, in the midtones, where the light-response curve is the same whether you are shooting digital or film, the sharpness of digital sensors is quite spectacular. For a landscape photographer, however, the early morning and late evening lighting calls for film every time. [Some day, hopefully sooner than later, someone will develop a digital light sensor with a logarithmic response curve.]

June 27, 2011 - Second Amended Complaint in Lightner, et al., v. Monroe County & State of Florida (Class Certification). This case was filed in December 11, 2006, amended on September 26, 2008, and amended again on June 27, 2011. It challenges Monroe County's Habitat Conservation Plan,and the HCP's rather daunting restrictions on development on Big Pine and No Name Keys. This lawsuit was filed when it was, in order to have a vehicle that was clearly filed before a four-year statute of limitation would run. Since then we have kept the lawsuit alive -- for that reason -- while we work on a potentially more efficient way to destroy the HCP and its associated Incidental Take Permit. As there are only a certain number of hours in a day, these things take time to develop.

May 6, 2011 - Galleon Bay Taking Case Notice of Appeal Filed. Although this appeal was filed on May 6, 2011, it has taken a back seat to the three Collins cases, and the necessity of filing an amended complaint in the Lightner case. Keeping these balls in the air gets more difficult every year -- perhaps because we are getting old. However, Galleon Bay's Initial Brief is expected to be filed on November 21, 2011.

April 27, 2011 - Galleon Bay Taking Case Dismissed. Circuit Judge Mark Jones dismissed Galleon Bay's eight-year old regulatory taking case in a 10-page Order, rejecting all of Galleon Bay's expert testimony in favor of the previously-discredited testimony of Trent Marr -- whose incredibility was the subject of the government's unsuccessful appeal to the 3d DCA. The Galleon Bay case was filed on May 21, 2002.

April 4 - 14, 2011 - Trial in Collins, et al. v. Monroe County & State of Florida.  In Key West, after four days of expert testimony, we finished the Plaintiffs' case-in-chief in the seven-year-old regulatory taking case of Collins, et al., v. Monroe County & the State of Florida, before Circuit Judge Tegan Slaton. Our expert witnesses were former Monroe County Planning Director Donald Craig, former Monroe County Senior Biologist Robert Smith, and Robert Gallaher, the principal real estate appraiser we have retained as an expert in our regulatory taking cases for more than 20 years. (See Berg v. City of Key West, October 1990. The Berg case resulted in a $3.5 million purchase by the City of Key West -- in September 1998, nine years later.)

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.

November 13-19, 2010 - Grand Canyon. We spent five days enjoying the Grand Canyon, Arizona, roaming around with a couple of cameras, a film camera (Nikon F6) and a digital camera (Nikon D700). We are still, a year later, trying to understand the relationships between cameras, film, and software.