Ganson v. City of Marathon, Florida

Florida decides couple’s land is for the birds

Cases > Property Rights > Ganson v. City of Marathon, Florida
Lost: Supreme Court declined to review the case.
Case Court: Third District Court of Appeals

The Beyer family owns a 9-acre island off the Florida coast that was reclassified from a general zoning designation to a bird rookery that permitted no use of the property other than temporary camping. Instead of offering compensation for this taking of property, as required by the Fifth Amendment, the city offered the Beyers only a kind of nonmonetary credit, akin to transferable development rights, toward possible purchase of a limited number of development permits in other locations. Florida courts offered no relief and, during the two decades of litigation, Gordon and Mary Beyer passed away. PLF now represents Charles Ganson, representative for the Beyers’ estate.

Gordon and Molly Beyer purchased an undeveloped, nine-acre island off the Florida coast known as Bamboo Key on which they planned to build a retirement home where their family could gather for generations to come. The island was originally zoned to permit nine homes, and it was later downzoned to allow only one. That was consistent with the Beyers’ plans, and they did not object. But then the city rezoned the property to forbid any construction whatsoever, choosing instead to designate the Beyers’ property as a “bird rookery” – that is, an avian breeding ground. The only human use authorized by this new plan? Temporary camping.

Having thus destroyed any productive use of the property, the city owed the Beyers just compensation for the taking. Instead, the city offered the Beyers only something akin to, but not even as legitimate as, so-called transferable development rights – what the government calls points toward possible purchase of a development permit elsewhere. These points were useless to the Beyers so they sued to force the city to compensate them with actual dollars. After bouncing up and down the state court ladder on procedural matters for several years, a state trial court eventually ruled that the city did not owe the Beyers a penny, because they did not show that they had “reasonable investment-backed expectations” for the property. A split appellate court affirmed and the Florida Supreme Court refused to review the case. With the U.S. Supreme Court providing the last opportunity for justice in this case, PLF filed a petition for a writ certiorari on behalf of Charles Ganson, the Beyers’ estate’s personal representative.

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What’s at stake?

  • The Fifth Amendment demands real financial compensation when the government takes your property by way of regulation; “transferable development right” schemes and the like won’t do.
  • The government cannot avoid being liable for a taking by nibbling away at property rights, incrementally, over time.

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