Food for Thought

Litigation Updates

red ball 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.

January 27, 2010. As the Third DCA granted our motion for appellate attorneys' fees in this case, to be determined by the trial court, the State requested copies of our time and billing worksheets a couple of weeks ago. Today we received compromise offers from the State that are about 35% less than our billed hours. Looks like this issue is headed for an evidentiary hearing.

January 25, 2010. With no amicable resolution in sight, the "interest-on-interest," or "delay damages," issue has been set for a hearing before Judge Garcia on March 4, 2010, at 10:45 AM.

January 20, 2010. The trial Court, Garcia, J., approved the disbursement of the State's $8,854,580.34 deposit, despite the unresolved "interest-on-interest" issue, and the Clerk's office cut the check on Friday, January 22, 2010. Finally, 15 years after this eminent domain proceeding was filed in 1995, it has come to an end.

January 5, 2010. The State of Florida deposited $8,854,580.34 into the registry of the Court, as its calculation of the Just Compensation and attorneys' fees owed to the landowners in the West/Richardson eminent domain case. (Attorneys' fees are paid directly to counsel according to statute, and do not come out of the landowners' award.) The State's deposit did not include $273,268.47 in delay damages (or, as the State argues, interest-on-interest) incurred up to January 5, 2010. This issue will be taken up in supplemental proceedings before the trial court. The District Court of Appeal also awarded appellate attorneys' fees to landowners' counsel. If the State refuses to honor counsel's bills, these amounts will be determined by the trial court.

December 16, 2009. For two days we have been corresponding with opposing counsel regarding the amount of interest to be paid to the Landowners in the West/Richardson case. One issue was readily resolved by statute. Fla. Stat. 55.03 requires a losing party to pay interest on a judgment, usually involving an appeal, at the statutory rate in effect on the date of the judgment. In this case, the 2008 statutory interest rate was 11%, and that rate applies until the judgment is paid. A second issue, that has not been resolved, is characterized by the State as "interest-on-interest." Our argument is that "pre-judgment interest" is not "interest" per se, but simply represents liquidated damages for delay in payment. In these cases, the State paid small sums to "quick-take" the subject properties in 2004 ($550,000 for Parcel 1, $80,000 for Parcel 7). When the jury verdicts came in at $5.05 million and $450,000, in 2008, the State became liable for the shortages -- and the landowners were entitled to additional compensation based on what that money would have been worth to them had it been paid in 2004. We contend, and the treatises agree, that this amount is not "interest," but is really delay damages. Most litigants use the state statutory interest rules as a proxy for delay damages, because it is easier than putting on an expert witness, but that does not make the sum awarded "interest." 

Red Ball November 5, 2009. State files Motion for Rehearing and Certification of Conflict. With all due respect, motions for rehearing are rarely given the time of day. Furthermore, the 3d DCA is well-known for its refusal to certify conflicts. The State's motion is not likely to do anything but cost the taxpayers of this State another 30 days' interest, or $54,535.20, plus additional attorneys' fees. The cost of this taking action has grown from the $630,000 deposit in 2004, to $9,373,610 as of November 5, 2009. With banks paying 1.5% annual interest these days, an 11% interest rate (simple, not compound) is a rare sight. Keep it up, State!

Red Ball October 21, 2009. Condemnation Blight Decision Affirmed by Third District Court of Appeal. Precisely four months after oral argument, the Third DCA affirmed Judge Luis Garcia's courageous decision to apply "Condemnation Blight" principles where the State had waited to condemn property for 22 years after it had rendered almost all of North Key Largo unbuildable in 1982. Today's District Court of Appeal opinion should be welcomed by the few remaining Keys' landowners who have held out for FULL COMPENSATION for their properties deemed suitable only for conservation. The Florida and United States Constitutions prevail again.

Red Ball September 21, 2009. Judge Jones DENIED Galleon Bay's Motion to Reconsider Judge Audlin's ruling vacating Judge Payne's Summary Judgment on Liability in favor of Galleon Bay. Following Judge Audlin's order granting Galleon Bay's disqualification motion, we filed a motion with successor judge Mark Jones, asking Judge Jones to rescind Judge Audlin's Vacation of Judge Payne's January 30, 2006, Amended Summary Judgment on Liability in favor of Galleon Bay. This case had already gone to trial on compensation in June 2006, but a new trial was ordered following the incompetent appraisal testimony of Trent Marr. Judge Audlin, whose bias in favor of the government is scarcely disguised, did everything he could to prevent the Galleon Bay plaintiffs from obtaining just compensation for the taking of their 13-lot subdivision on No Name Key. Following a two-hour hearing on July 31, 2009, Judge Jones took Galleon Bay's motion under advisement, denying it on September 21, 2009.

red ball July 16, 2009. Collins, et al. v. Monroe County, et al. (regulatory taking, filed 2004). Following the New Years' Eve reversal of Judge Audlin's dismissal of this case on Statute of Limitation grounds, the County and State filed separate petitions for "discretionary review" with the Florida Supreme Court. As we calculated on our NEW Appellate Review Stats page, only 11% of such petitions are successful. Also, the Florida Supreme Court issues denials of discretionary review petitions, on average, 92 days (±39 days) after the final brief is accepted. In Collins, the supreme court denied review in 66 days. The Collins case has been re-assigned to newly-elected Circuit Judge Tegan Slayton

red ball 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.

red ball June 22, 2009. State DEP v. West, et al. (condemnation blight, filed 1995). Oral argument in the State's appeal of Florida DEP v. West, et al., was had Monday, June 22, 2009, in Key West. The Third District Court of Appeal's panel consisted of Chief District Judge David Gersten, District Judge Leslie Rothenberg, and District Judge Richard Suarez. Chief Judge Gersten and Judge Suarez were on the panel a year ago, also in Key West, in Collins, et al., v. Monroe County and Shands v. City of Marathon. The panel had obviously read the briefs, and were not impressed with the State's theory that the North Key Largo properties had been "taken" by regulations first adopted in 1982, the 4-year statute of limitation had run in 1986, and the State should be able to acquire the properties without paying anything. Chief Judge Gersten asked the State's lawyer, Joe Spejenkowski, whether his theory was "fair." Mr. Spejenkowski responded with "no, it's not fair." Now we wait. The panel could simply affirm without writing an opinion ("per curiam affirmed," or "PCA"), that would probably be released within the next few weeks. We would prefer a written opinion affirming Judge Garcia's handling of this 14 year-old eminent domain case. While Judge Garcia's decisions in this case are "persuasive" authority within the 16th Judicial Circuit (Monroe County), an opinion affirming the decision would be "binding precedent" for all Circuit Courts in Florida. The Third DCA releases its opinions on its website, on Wednesdays at about 10:45 AM. Look for a decision in Case No. 3D08-2819. The Briefs in this appeal are available on the West-Richardson page.

red ball 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.

red ball June 11, 2009.  Monroe County Circuuit Judge Audlin dismissed four regulatory taking cases on statute of limitation grounds -- beginning with Collins v. Monroe County and Shands v. City of Marathon (a Pacific Legal Foundation case), followed by McCole and Beyer. Chief Judge Luis Garcia dismissed a fifth case, Sutton v. Monroe County, on the same grounds. Judge Audlin's Collins and Shands decisions were reversed by the Third District Court of Appeal on December 31, 2008. We expect similar reversals in the other three appeals. The Initial Brief has been filed in Sutton, and briefs are due soon in McCole and Beyer. The McCole and Beyer initial brief deadlines are "tolled" at the moment, awaiting orders in our motions to "correct the records" in both. The City of Marathon's counsel "stuffed" the records in McCole and Beyer with documents that are not allowed in a record on appeal -- basically doubling the size of each -- and we have moved to strike those materials.

red ball 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.

red ball April 15, 2009. Evanoffs' v. Village of Islamorada (due process, filed 2008). We are headed for a trial on the Amended Complaint in Evanoff's vs Islamorada. If we are successful in declaring the Islamorada building permit allocation scheme (BPAS) unconstitutional on Due Process grounds, this could be a big game-changer in the Florida Keys. We are pursuing the same result in a class action lawsuit against Monroe County (Lightner et al v Monroe County) involving land on Big Pine and No Name Keys, and plan to file a similar action for landowners in unincorporated Monroe County whose properties are NOT on Big Pine or No-Name Keys.

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.

red ball January 23, 2009. Lightner, et al. v. Monroe County & the State of Florida (regulatory taking, class action, filed 2006. A hearing was had on the County's Motion to Dismiss the Amended Complaint. It became apparent that the Amended Complaint was too hard to follow -- and that is my fault -- so we obtained approval to file a Second Amended Complaint that would, hopefully, be as easy to follow as a road map. Go to the BPK-NNK Class Action page for details on this litigation

The Florida Keys a National Park?

red ball 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.

red ball 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.

red ball March 18-20, 2008. Groups Two and Three. 25 Beneficial Use Determination (BUD) petitions were heard by a State Administrative Law Judge on  March 18-20, 2008. But no recommended orders have been issued. That is, in part, due to our concern that the ALJ would adopt the County's "position" that it did not have to pay for denying all, or substantially all, use of land where the owner had not sought compensation within four years of enactment of the offending regulation. (Statute of Limitation argument.) This is the same argument that Judge Audlin was just reversed on in Collins and Shands. Now that Collins has been reversed, and the Florida Supreme Court has told the government to "get over it," we can get these BUDs out of limbo and file a 25-plaintiff regulatory taking lawsuit. Click on Group 2 for details.

"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).