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January 29, 2010. As some of our readers know, we have had quite
a time dealing with the dismissals of five regulatory taking
cases in 2007 and 2008, all but one by a single judge, David
Audlin, who has no clue what he is doing. On New Years Eve 2008,
the Third District Court of Appeal reversed two of Judge
Audlin's dismissals, Collins v. Monroe County & the State of
Florida and Shands v. City of Marathon (a Pacific
Legal Foundation case). The government sought to appeal the
Collins decision to the Florida Supreme Court, but that effort
failed on July 16, 2009. We then had a shock when a panel of 3rd
DCA judges decided to affirm Judge
Garcia's dismissal in Sutton v. Monroe County on December
23, 2009. We filed Motions for Rehearing, and for Rehearing
en banc, on January 6, 2010, and the court has not ruled on
either motion yet.
We now have the final two cases in this quintet, McCole v
City of Marathon & the State and Beyers v. City of
Marathon & the State, scheduled for oral argument on
February 8, 2010, at 10:30 AM, before the 3rd DCA in Miami. I
can sense the parochial concerns of the judges when they see a
situation that seems "out of control." They cannot deal with the
concepts that (1) a local government can adopt confiscatory land
use regulations, and (2) that a landowner can wait 500 years
before requesting an administrative 'beneficial Use
Determination" that will "ripen" his or her regulatory taking
claim.
It is unlikely that the strange set of circumstances I have
described above will continue to be available to get just
compensation to affected landowners, for the simple reason that
appellate judges cannot fathom how such a thing can go on, and
on, and on, and on forever. Once we get through the McCole
and Beyer appeals, we will have to focus our efforts on
straightforward attacks on the confiscatory regulations
themselves. We have one case "on hold" for landowners on Big
Pine and No Name Keys, and about 50 more landowners ready to
challenge the County's regulations in a major lawsuit (probably
in federal court). It seems that the time has arrived when we
need to "fix" the regulations, so we can file normal regulatory
taking claims (that can be resolved in less than 10 years). Keep
checking back here for updates.
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For another source of information on Florida Keys' land use problems,
visit
http://www.mattsonlaw.blogspot.com.
See my August 11, 2009, blog on
Casitas Municipal Water District v. United States, also summarized
below. Property grabs for endangered species create government liabilities
for regulatory takings. The Solicitor General decided not to seek review by
the Supreme Court. Sounds good to me!
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