July 15, 2010.  It has been quite a while(5 1/2 months) since we have updated this website. However, as we explained on January 29, 2010, there were three Florida Keys regulatory taking cases before the 3rd District Court of Appeal. The 3rd DCA had ruled for the County in Sutton v. Monroe County on December 23, 2009, and we were awaiting decisions in the other two -- McCole and Beyer -- both against the City of Marathon. McCole and Beyer were argued on February 8, 2010. Our appeal in Beyer v. City of Marathon was resolved in favor of the Beyers nine days ago, on July 6, 2010. The McCole appeal was decided in favor of the City of Marathon two weeks ago, on June 28, 2010. In addition, our Motion for Rehearing, in Sutton v. Monroe County, was denied on May 25, 2010.

We have filed notices of appeal to the Florida Supreme Court in the Sutton and McCole cases, and have filed the initial "jurisdictional brief" in the Sutton appeal. The McCole jurisdictional brief is due in a few days.

Both the Sutton and McCole cases both involved situations where the landowner applied for a building permit and was denied. Both Ms. McCole and Ms. Sutton took no further action for several years, at which time they applied for Beneficial Use Determinations. The 3rd DCA has decided (for the moment) that the four-year statute of limitation began to run on Sutton and McCole when their building permits were denied, rather than when their Beneficial Use Determinations were issued. We believe this interpretation is incorrect, and that review at a higher level should result in a reversal of the Sutton and McCole decisions. However, until that battle is over, we strongly recommend that you NOT apply for a building permit, and if one is denied, that you seek a Beneficial Use Determination immediately.

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.

We do not have a decent Site Map yet, so I have turned that feature off in the Menu Bar.

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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