Another unconstitutional takings case on its way to the Florida Supreme Court

October 31, 2016 | By MARK MILLER

Gordon Beyer with grandson.

Pacific Legal Foundation reviews hundreds of regulatory takings cases a year. Often we cannot take a case, for any number of reasons, even though the facts call out for justice. But, sometimes the brazenness of a local government’s land grab so shocks the conscience that PLF cannot help but get involved. Such is the case in our latest filing in Florida—a case known as Ganson v. City of Marathon. We filed our Jurisdictional Brief, asking the Florida Supreme Court to review the case on the merits, this morning. The facts of the case demonstrate the Court should accept the case for review and then reverse the lower court’s decision.


Molly Beyer with another grandchild.

Gordon and Molly Beyer purchased Bamboo Key, a small nine-acre island in the Florida Keys, in the 1970’s as a family investment and a place to eventually build a home for retirement. That opportunity was subsequently taken away through a series of regulations that culminated in a total ban on any development.

When the Beyers bought the property, it was under the jurisdiction of Monroe County and zoned to allow construction of nine homes—one per acre. Over the next two decades, however, zoning became more and more restrictive until the county in 1997 designated the property as a “bird rookery.” (After the City of Marathon incorporated in 1999, it took jurisdiction over the island, continuing the county’s regulatory restrictions.) Although the County and then the City did not formally take possession of it, they both prohibited the Beyers from building. The only use they could make of it, the Beyers were told, would be temporary camping. To soften this outrageousness, the government offered the Beyers “points,” a form of bureaucratic nonsense in which paper that has no value is offered towards some possible, speculative opportunity to build on land elsewhere in the County or City, should the government ever grant that opportunity.

Our Founding Fathers would have rejected this scheme to subvert the Fifth Amendment out of hand, and PLF has taken on the Beyers’ case to remedy this violation of the Constitution.

PLF represents Tom Beyer and his brother Hugh and sister Teresa, who inherited the island, Bamboo Key, from their late parents, Gordon and Molly Beyer. PLF represents the Beyer family, free of charge, through the Personal Representative of their late Mother’s Estate, Charles Ganson, Jr. Attorney Andrew M. Tobin of Islamorada, Florida, is co-counsel on the case. He has been fighting for the family for years, and PLF and Tobin now intend to fight on together to right this wrong.

It has been more than a decade since Gordon and Molly Beyer first sued the city for denying them any economically beneficial use of Bamboo Key. The case has moved back and forth between the trial court and the court of appeal as the city has thrown up procedural arguments. The children of Gordon and Molly are carrying the lawsuit forward after their parents’ passing.

The principles at stake in this case are important for all property owners, large or small, wherever they live. To paraphrase a famous poet, no property owner is an island to himself. When property rights are eroded for some landowners, they are weakened for the rest of us as well. This case asks the crucial question: When government takes property, is real restitution required or can officials get by with offering an empty substitute? The Florida Supreme Court should take this case not just to right the wrong done to the Beyer family, but also to affirm, more broadly, that ‘just compensation’ means ‘just compensation,’ and any form of bureaucratic counterfeit won’t do.


The Beyers: family and friends.

PLF will fight to make sure the Beyers either find themselves able to use their property as they had the right to do, or justly compensated for the taking. Compensated with bread, cheese, greenbacks, semolians, filthy lucre, dough—what we still call cold-hard cash in these great United States. Not “compensated” with “points,” or “transferable development rights,” or whatever latest euphemism the bureaucrats have come up with to take your property unconstitutionally.