Evanoff's, Inc. v. the Village of Islamorada

Due Process: Islamorada's Building Permit Allocation & Beneficial Use Determination Ordinances are Unconstitutional

16th Jud. Cir. Fla. Case No. CA-P-08-414

In 1972, Evanoff's, Inc., a Wisconsin corporation, purchased a 4.6 acre upland parcel in what is now the Village of Islamorada. The property was zoned RU-1, or one dwelling unit (DU) per platted lot. In 1986, Monroe County rezoned Evanoff's parcel to Sparsely Settled, which at the time allowed one DU per acre (4.6 homes). When Islamorada sprang into existence on January 1, 1998, it quickly adopted a moratorium on all development -- that lasted for 53 months -- to July 15, 2003. During the moratorium, Islamorada adopted a "building permit allocation system," or "BPAS," ordinance -- that we call a Rate-of-Development ordinance, or ROD -- that was heavily weighted toward saving trees. As it happened, Evanoff's property had a lot of trees on it.

On August 31, 2006, Evanoff's submitted an application to build a single-family residence (for which it is zoned) on their property. Because of the trees on the property, Evanoff’s application was ranked 136 out of 138 permits in the BPAS ROD queue. As of August 2007, Plaintiff’s application was ranked 145 out of 146. Given the number of potential permit applicants, it is likely that Evanoff's property will not be eligible for a building permit for more than 50 years.

Evanoff's lawsuit against Islamorada was filed on May 27, 2008. It was amended on January 7, 2009, after the 3rd District Court of Appeals' New Years' Eve decisions in Collins v Monroe County and Shands v. City of Marathon. The Amended Complaint primarily seeks the invalidation, on Due Process grounds, of Islamorada's BPAS ordinance, its Beneficial Use Determination ordinance, and its unconstitutional "fees" that landowners must pay in order to exercise their Fifth Amendment right to Just Compensation.