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Jim Mattson

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Update: Galleon Bay Corp. v. Monroe County & State of Florida

January 15, 2008 (Part II). Judge Audlin, following up on his order throwing out the efforts of five years of litigation in this case before Circuit Judge Richard Payne, issued a scheduling order that assumes a bench trial, on liability, in March 2009, seven years after this case was filed! Galleon Bay, having tossed back a $3 million plus verdict in 2006 -- because of the dishonest testimony of the County's MAI ("made as instructed") "appraiser," Trent Marr, during the trial -- will bear this insult with dignity. Ultimately, bad actors pay the price of their deeds, and Monroe County's exposure in the next compensation trial will be well over $10 million.

January 15, 2008 (Part I). Judge Audlin vacated Judge Payne's 2006 Order Granting Summary Judgment on Liability to Plaintiff (Galleon Bay). Coming on the heels of his inexplicable order dismissing the 11-Plaintiff Collins Taking case, we are hard-pressed to understand how a new judge -- with no experience in regulatory takings law -- can become such an advocate for confiscatory government behavior.

Click below for more details.

Update: State of Florida vs. West & Richardson

October 30, 2008. Not unexpectedly, the State filed Notices of Appeal of both the West and Richardson Final Judgments. The State's Initial Briefs are due 70 days from the Notices of Appeal, or January 8, 2009. Having done about 75 appeals in the past 25 years, I can attest that nobody ever gets their Briefs in on time -- and the Third DCA is known for its liberal policy on requests for extensions of time.

October 8, 2008. Judge Garcia entered judgments totaling $6,877,257 – plus costs and attorneys’ fees – as Just Compensation for the West and Richardson parcels. The West heirs were awarded $5,050,000 plus $1,848,114 interest, for the State’s 2004 condemnation of 21 acres (+5.6 acres of submerged land). Richardson, et al., were awarded $450,000 plus $149,142 interest, for a 4-acre parcel. Yet neither parcel has had any development rights since 1983, when the County began a series of “rolling” development moratoria in the Keys. In 1986, the State and County adopted a “one-year” moratorium on all development on North Key Largo (except Ocean Reef, Anglers’ Club, and some subdivisions). The 1986 moratorium remains in effect today – over 22 years after it was imposed.

When the State condemned the parcels in 2004, it had to deposit “good-faith estimates” of FMV into the registry of the Court. It deposited $550,000 for West and $80,000 for Richardson. This supports our position that the State is purchasing Keys’ land at unconscionably low prices. Comparing the jury verdicts – FMV as of 2004 – to the State’s good-faith deposits, the FMV of the West parcel was 9.2 times the State’s “good-faith estimate,” or 11 cents on the dollar. The FMV of the Richardson parcel was 5.6 times the State’s “good-faith estimate,” or 18 cents on the dollar. Combining the two yields 11-½ cents on the dollar – a ratio of FMV to purchase price of 8.7 to 1.

Keys’ landowners are clearly being snookered by government. To landowners who have so far resisted the governments’ offers of 10 to 15 cents on the dollar, we say stand pat; sit tight; 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.”

If you must say something, say "condemn it"! There are four court decisions on this website, that describe similar deceptive tactics by the United States government 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 FMVs reached by juries – when compared to the government’s 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. Sound familiar?

The difference between the State of Florida's offers for undeveloped Keys properties, and their real Fair Market Value in condemnation proceedings, comes down to two words: Condemnation Blight. Owners of such properties -- who remain unconvinced -- should read Judge Garcia's Condemnation Blight Order in the West, et al. case discussed in this post. (This link takes you to my website.)

Landowners should also note that, in eminent domain proceedings ("condemnation"), attorneys fees and costs are paid to their lawyers on top of what the landowner is awarded by the Court -- which is usually bound by the jury verdict. There is no downside to an eminent domain proceeding, particularly when the government takes by a "quick-take" proceeding and has to pay interest on the jury verdict from the date of the quick-take. If the government sits on its hands and won't bring a condemnation proceeding, you can seek out a good inverse condemnation attorney and sue the government. You may bear some expense in that scenario, and the government may offer to settle by giving you a building permit. Once the current mortgage panic subsides, the demand for buildable land in the Keys should start rising again.

The State has announced its intention to appeal these judgments. If it does appeal, interest will continue to run on the judgments, and on the separate costs and attorneys' fee awards, at the rate of 11% per annum. Under today's financial clouds, that's a pretty good investment. As of October 26, 2008, no Notice of Appeal had been filed.

June 2, 2008, DEP v. West. The former (as the State did a "quick-take" in 2004)Landowners filed a Motion for New Trial in this case, based on information that the jury did not apply the correct law in reaching its verdict. The State filed a Motion for entry of a "gag order" to prevent us from revealing this fact on this website or my Blog site. On June 18, 2008, Judge Garcia DENIED the gag order motion.

May 19-22, 2008, DEP v. West. Finally! The DEP v. West, et al., and Richardson, et al. , eminent domain trial took place before a 12-person jury, in Judge Garcia's courtroom on Plantation Key. This 13-year old case did not get moving until the State converted its "slow-take" (where it could "walk away" if it didn't like the verdict), to a "quick-take" in 2004. In the quick-take, the State was required to deposit a "good-faith estimate" of the properties' value in the registry of the court. It deposited $550,000 for the West parcel and $80,000 for the Richardson parcel. The jury's verdicts were $5,060,000 for the West Parcel and $450,000 for the Richardson parcel -- 9.2 and 5.6 times the State's deposits. The State's attorneys vowed to appeal.

April 9, 2007. The key to this case was Judge Garcia's 23-page Order Granting Defendants' Motion in Limine on the Issue of Condemnation Blight. To view the Order, Click Here. 

Click below for more details.

Update: Lightner, et al., v. Monroe County & State of Florida (BPK-NNK Class Action Taking Suit)

September 26, 2008. We served an Amended Complaint in the Big Pine Key-No Name Key (Class Action) taking case on September 26, 2008. You can view the Amended Complaint by clicking here. The Amended Complaint includes the following amendments and changes.

1. The major change made in the Amended Complaint was the addition of two Due Process Counts, one under the United States Constitution and 42 U.S.C. § 1983 (Civil Rights Statute), and a second under the Florida Constitution, claiming that the Tier system on Big Pine and No Name Keys is unconstitutional on due process grounds. The two Regulatory Taking claims (facial and as-applied) in the original Complaint have been consolidated into one count under the Florida Constitution, and a new Count added to state a claim under the United States Constitution and 42 U.S.C. § 1983.

2. It adds the State as a Defendant and deletes four Plaintiffs who are Plaintiffs in other regulatory taking lawsuits against the Defendants. (We had previously voluntarily dismissed the four.)

3. It deletes the Temporary Taking claim based on the rolling development moratoria that began in 1992. (We had voluntarily dismissed this claim previously.)

4. It corrects the numbers of parcels affected by the near-absolute prohibition on development within Tier I. Instead of "approximately 1,725" undeveloped Tier I parcels on BPK and NNK, there were between 1,279 and 1,310 such parcels in private ownership as of July 16, 2008. (A new GIS data file, that identifies the Tier designation of every parcel, became available after the Complaint was filed. And over 100 Tier I parcels were transferred to the State or County since the Complaint was filed.)

March 5, 2007. Judge Garcia transferred the case to Key West, where it was assigned to Judge Mark Jones. Its new case number is CA-K-07-280.

February 1, 2007. The County filed a motion to transfer the case from Plantation Key to Key West. That motion was granted orally on February 13, 2007.

December 18, 2006. We filed a class action lawsuit against Monroe County on behalf of twelve plaintiffs who own 50 affected properties for payment of just compensation as required by the Florida and United States Constitutions. The following is a summary of the claims against the County.

Update: Groups Two/Three BUD Challenge

June 24, 2008, 2007 BUD Ordinance Challenge. The Groups Two/Three challenge to Monroe County's amended Beneficial Use Determination (BUD) ordinance (Ordinance 35-2007) – with lead Petitioner Sal Gutierrez – was heard by a DOAH Administrative Law Judge June 24, 2008 in Key West. You can see how the BUD procedure has been amended since it was initially adopted in 1986, by clicking on the following links: 1986 BUD Ordinance  –  1996 Comprehensive Plan BUD – 1998 BUD Ordinance  –  2007 BUD Ordinance (Proposed, not yet in effect). Click here for the Petition.

Thursday, November 29, 2007. We filed a Petition for Administrative Hearing, on behalf of the Group Two/Three Plaintiffs, challenging DCA's proposed final order approving Monroe County's proposed revisions to its Beneficial Use Determination regulations.

Monday, October 1, 2007. We (that includes the County) attempted to set these BUD petitions down for hearing the first week in October. Everyone's schedule was so full that we would have had to hear 24 BUD petitions in 1-1/2 days on October 3 and 4. That seemed impractical so both sides agreed to find a week when they can all be heard.

February 21, 2007. I called Tyson Smith and informed him that (a) the BUD Petitioners would not accept any Monroe County employee as the Hearing Officer for these applications, and (b) that Mr. Tobin and I are preparing a lawsuit against the County (and Marathon and Islamorada) seeking a Declaratory Judgment that their existing land development regulations and comprehensive plans are confiscatory and unconstitutional on Due Process grounds, because the Beneficial Use Determination procedure does not lead immediately to an eminent domain proceeding. The solution, as we see it, is to (a) declare the LDRs and ComPlans unconstitutional, or (b) order revisions of the BUD provisions to make the LDRs and ComPlans constitutional.

I suggested to Mr. Smith that scheduling the 23 BUD applications before a County employee/hearing officer would not fly, and that the County might as well hold off until our BUD lawsuit is filed.

January 25, 2007. Responding to our November 23rd supplementation of the 2005 BUD applications, attorney Tyson Smith sent me the following e-mail message.

 "The County asked that I respond to your letter of November 3, 2006 related to twenty-three BUD Applications submitted by you.  These applications had been returned because they lacked information necessary for the hearing officers proper determination under the Comprehensive Plan and the LDRs.  In response, you submitted appraisals for most of the properties, but did not respond to the Countys other requests."

"While the County remains of the opinion that the applications lack necessary information, at your request, the County will begin reviewing the materials submitted and will schedule hearings before the hearing officer.  However, by doing so, the County does not waive its right to object, during the BUD proceedings, to any deficiencies in the materials you have provided."

 Click below for more details.

Quick Looks

Last Updated: January 02, 2009

New Years' Eve: Collins Watch Over

Third DCA Reverses Judge Audlin in Collins and Shands

December 31, 2008 -  As I posted on my blog on New Years' Eve, the Third District Court of Appeal released 17-page opinions in Collins, et al v. Monroe County & the State of Florida and Shands v City of Marathon, a Pacific Legal Foundation case. These appeals were argued back-to-back on June 30, 2008, in Key West. Since September, I had been guessing the opinions would be released in mid-December, and that Chief Judge Gersten would be the author. I was close on the date, but Circuit Judge Suarez signed the opinions.

Since Circuit Judge Audlin dismissed Collins and Shands, he has dismissed two more regulatory taking cases, McCole v City of Marathon & the State of Florida and Beyer v. City of Marathon & the State of Florida, on the same grounds (statute of limitations, ripeness) he invented in Collins and Shands. In addition, 16th Circuit Judge Luis Garcia recently dismissed Sutton v. Monroe County, another regulatory taking case, on equally incorrect statute of limitation grounds.

Once the usual Motions for Rehearing are concluded in Collins and Shands, we can expect the Third District Court of Appeal to remand McCole, Beyer, and Sutton in light of the Collins and Shands decisions.

Group Two Update - There are 25 Beneficial Use Determination (BUD) petitions pending before a State Administrative Law Judge. These petitions were heard March 18-20, 2008, but no recommended orders have been issued. One of our major concerns following those hearings was 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. This is the same argument that Judge Audlin was just reversed on in Collins and Shands. Now we can move those BUDs forward and bring 25 more regulatory taking claims in Circuit Court.

Click on Collins and/or Shands to read and/or download the New Years' Eve opinions.

October 30, 2008. Not unexpectedly, the State filed Notices of Appeal of both the West and Richardson Final Judgments. Fortunately for the former landowners, these judgments are earning interest at 11% per year until paid.

September 27, 2008. The Florida Keys Keynoter announced today that the Monroe County Administrator was planning to tell the Florida's "Cabinet" that the solution to the Florida Keys' land acquisition mess is to get Congress to designate the Keys a National Park. That, they surmise, 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.

September 24, 2008, $46.7 million in Bert Harris Act claims filed. Details below.

July 2, 2008. On July 1, 2008, the Supreme Court of Wisconsin (yes, the über-liberal court that decided Just v. Marinette County in 1972) ruled that when a land use district has no "as-of-right" uses, said regulation is unconstitutional on substantive due process grounds. (Think Lochner v New York, 198 US 45 (1908).) Click here to read the opinion in Town of Rhine v. Bizzell, et al., 2008 WI 76 (July 1, 2008). Sound familiar, Keys landowners? Do I hear "Tier One?" – "red-flag wetlands?" – Offshore islands, anyone? It's long past time to start challenging Monroe County's (and its municipalities') confiscatory land "lack-of-use" regulations, starting with the bogus "rate-of-development caps," and working our way through the "tier system" and the local wetland regulations. Oh, and there are no statutes of limitation on constitutional challenges to ordinances or statutes. The ordinance in Wisconsin had been in effect over 20 years before Bizzell, et al., took it down.

  July 1, 2008, Collins Oral Argument Review. Like a good movie, yesterday's oral arguments before Chief Judge Gersten and District Judges Ramirez and Suarez, went well for the Landowners in Collins and Shands, and the governments' arguments seemed to fall flat on their face.

June 24-26, 2008, 2007 BUD Ordinance Challenge. The Groups Two and Three challenge to Monroe County's amended Beneficial Use Determination (BUD) ordinance (Ordinance 35-2007) – with lead Petitioner Sal Gutierrez – was heard by a DOAH Administrative Law Judge June 24th in Key West. You can see how the BUD procedure has been amended since it was initially adopted in 1986, by clicking on the following links: 1986 BUD Ordinance  –  1996 Comprehensive Plan BUD – 1998 BUD Ordinance  –  2007 BUD Ordinance (Proposed, not yet in effect). Click here for the Petition.

March 18-20, 2008, Group Two BUD Hearings. The 23 Beneficial Use Determination Petitions filed October 30, 2005, were heard by Special Master Larry Sartin, a DOAH Administrative Law Judge, 2.4 years after the 23 petitions were filed. SEE BLOG FOR MORE.

There is a lot of similarity between our Florida Keys cases and other park-building cases across the United States. Look at these decisions.

1. First is 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.

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).

Update: Collins v. Monroe County & State of Florida

  December 31, 2008, Collins and Shands opinions double-reverse Judge Audlin. Needless to say, we are pleased with the decision of the Third District Court of Appeal released on New Years' Eve day (at 10:45 AM to be precise). The Collins opinion is available on this website in pdf format, as is its companion, Pacific Legal Foundation's Shands opinion.

  June 30, 2008, Collins Oral Argument. The Collins Oral Argument has been set in KEY WEST, June 30, 2008, at 9:30 AM (rather than in the Court's Miami courthouse). The Court of Appeal will also hear a similar regulatory taking case, Shands v. City of Marathon, dismissed by Judge Audlin in November 2007, immediately following the Collins argument.

 June 16, 2008, Collins Appeal. The Collins Reply Brief was served. In addition to the Reply Brief, the Collins Landowners filed an Appendix to the Reply Brief, that consisted of two Memoranda of Law filed in the trial court in 2006: Plaintiffs' Supp. Memorandum on 4-Year Statute of Limitations, and Plaintiffs' Supp. Memorandum on 90-Day Statute of Limitation.

April 22, 2008. Monroe County served its Amended Answer Brief (although it omitted the word "amended" from the title page).

March 24, 2008. The Court struck the County's Answer Brief.

February 29, 2008. The County's post-Answer Brief motions did not cure the defects in its brief. The Collins Landowners filed a Motion to Strike the County's Answer Brief.

January 11, 2008. The State served its Answer Brief. The County's Answer Brief, served a day later, falls short of the Rules of Appellate Procedure. Apparently the County hopes to cover their lack of record citations with a late motion to supplement the record.

November 13, 2007. The Collins Landowners served their Initial Brief. We have asked for some unusual relief in the Initial Brief.

Monday, July 2, 2007. Even though it's just wishful thinking on their part, take a look at Monroe County's Motion to Tax Costs and Attorneys' Fees in Collins. Though the Motion won't get it a penny, the County says it has spent $1,324,618.61 defending this case so far – which it will lose (after a few more millions of taxpayers' dollars). What on earth do they DO up there in Kansas?

Click below for more details.

Bert Harris Act Claims

September 24, 2008. We served 41 Bert Harris Act petitions today on Monroe County and the State of Florida, seeking $46.7 million in compensation to the owners of 196 Florida Keys land parcels. Thirty-four claimants' properties are in Tier I, which are essentially unbuildable. Seven own Tier II property. For Tier I and II landowners to even compete for a permit, they would be forced to spend on the order of $235,000 for 20 points (Tier I) or $117,500 for 10 points (Tier II) just to begin with the same number of "points" a Tier III landowner starts with. AND they must acquire all but two of those 10 or 20 points by purchasing their neighbors' Tier I lots -- at 4 points apiece -- at the bargain basement prices the government has been paying. I will share with you our appraiser's Fair Market Value analysis that we provided the County and State in several of the Bert Harris Act petitions. These are January 1, 2008, "generic" Fair Market Values -- that need to be adjusted if special conditions exist, such as too little lot area or the need to pay mitigation in order to place fill in a wetland -- for Upper and Lower Keys residential lots only.

Lower Keys Lots: Dry $240,000; Canal $320,000; Open Water $520,000
Upper Keys Lots: Dry $170,000; Canal $405,000; Open Water $610,000

Bert Harris Act (BHA) claims. The 1995 Florida Legislature enacted the Bert Harris Jr., Private Property Rights Protection Act, now codified at Sec. 70.001, Fla. Stat. (2008). The BHA allows landowners to demand and receive compensation when a land use regulation "substantially diminishes" the Fair Market Value of their property.

Under the BHA you must file a claim within one year of the effective date of the regulation. We originally believed that the one-year requirement started to run on Monroe County's "tier system," when an ecoterrorist group's administrative challenge to the ordinance that established the point penalties between the various tiers (and 4 other ordinances) ended  September 26, 2007. However, we had overlooked the requirement that the County Commission establish, by resolution, the amount of money an individual would have to pay to purchase either one or two "ROGO Points." A good argument can be made that the July 16, 2008 resolution (see below) was the last element of these BHA claims to be put in place. Under that theory, the one-year statute of limitation for filing a BHA claim does not run until 1 year after Resolution 218-2008 was adopted (or filed by the Clerk, if you want to split hairs).

Monroe County did the homework for you. According to Monroe County Commission Resolution 218-2008, adopted July 16, 2008, a single ROGO point  (or two, at most) can now be purchased from the County for $11,750 each – which is the County's average of 871 lot sales. Presumably these sales were almost all to government – which would disqualify all such sales as representing fair market value in an eminent domain proceeding – but that's a legal argument for another day.  Under Ordinance 009-2006, an owner of a Tier I lot is down 20 points from a Tier III lot. So a Tier I landowner would have to buy five ROGO lots – at 4 points per lot – to compete for a permit with Tier III lots, at a cost of $235,000. Tier 2 and 3A lots are down "only" 10 points, and would have to purchase 2 lots at 4 points each, and buy 2 points from the County, at a cost of $117,500.

October 9, 2006. Six months have passed since the tier system became "effective" on Big Pine and No Name Keys. It is still too soon to file Bert Harris Act claims for diminution of value of undeveloped BPK and NNK parcels.

Though the County split the BPK-NNK and "everywhere else" maps into two ordinances, it adopted one ordinance (No. 009-2006) that establishes the changes to the ROGO point system that will apply to the new maps. Ordinance 009-2006 is one of the ordinances that was challenged.

The Bert Harris Act does not require a landowner to file a claim in response to each piece of a confiscatory land use program -- but merely to file a claim within one year after the whole picture becomes clear. This picture should become clear if the BOCC approves the "settlement" on October 18th.

July 16, 2006. The tier system is NOT in effect. Two local entities challenged the Department of Community Affairs'  orders approving the tier system ordinances. View the documents online, at DOAH Case No. 06-2449GM.

April 1, 2006 -- A "Tier Map" became effective on BPK and NNK, but no regulations came with the map. The BPK-NNK Habitat Conservation Plan states that no more than 10 single-family homes will be permitted in Tier I lands on BPK and NNK in the next 20 years (0.5 units/year), and only 8 market-rate homes can be built annually on the two islands. There are currently 1,725 privately-owned, vacant, residential parcels in Tier I on BPK and NNK.

It is our opinion that these point spreads constitute an unfair financial burden on individual property owners, that should have been borne by the public at large, as the purpose of this "system" is to allow the government to acquire undeveloped, environmentally interesting, land for free.