1 year ago

Florida appeals court issues decision that is truly for the birds

By Mark Miller Senior Attorney

My handy-dandy Idiom Dictionary says the expression “for the birds” describes something “worthless” and “undesirable.” The dictionary goes on to explain the etymology as “based on the idea that birds eat seed, which is not worth much.” (It may also have a somewhat scatological foundation, but we’ll leave that conversation starter for a less-highbrow blog.)

“For the birds” accurately sums up a takings-related decision of Florida’s Third District Court of Appeal this week in the case now known as Ganson v. City of Marathon, f/k/a (and described on this blog here and here) as Beyer v. City of Marathon. But don’t take my word for it–Judge Frank Shepherd, who along with two of his Third DCA colleagues dissented from the decision to deny rehearing the case en banc, said it himself:

The decision of this Court that the Beyers have no constitutional
taking claim against the City for what are indisputably excessive economic injuries is, well, for the birds.

Why would a judge so directly excoriate a decision reached by his fellow judges? Let’s step back and review the facts of the case.

Judge Shepherd set out the relevant facts in his dissent, which I will condense:

1970: Gordon and Molly Beyer purchased an undeveloped island in Monroe County for $70,000. At the time of purchase, the island was zoned “General Use,” which allowed one single-family home per acre. The property is just under nine acres.

1986: The County adopted a Comprehensive Land Use Plan (the “1986 Plan”) that downzoned the Beyers’ property to “Offshore Island,” allowing a new development density of one unit per ten acres. Since the Beyers’ property is less than ten acres, this 1986 Plan essentially eliminated their development possibilities. The 1986 Plan included an administrative process known as a “Beneficial Use Determination.” This process provided landowners with a means of challenging the Plan’s unconstitutional effects on property, but the administrative remedy was problematic because it only allowed for the minimum necessary relief to raise the value of the property to forty percent of its pre-regulation value.

1996: The County adopted a revised plan—the Year 2010 Comprehensive Plan (the “2010 Plan”). Under this Plan, the Beyers’ property is classified as a “bird rookery.” Under this classification, the only permitted use of the property is “temporary primitive camping by the owner, in which no land clearing or other alteration of the island occurs[.]”

Revised beneficial use procedures allow property owners to “apply for relief from the literal application of applicable land use regulations or of this plan when such application would have the effect of denying all economically reasonable use of [their] property[.]” Id., Policy 101.18.5. “The relief granted shall be the minimum necessary to avoid a ‘taking’ of the property under state and federal law.” Id.

1997: The Beyers submitted a beneficial use application along with the applicable fee to the County.

1999: The City of Marathon was incorporated, and the Beyers’ property became part of the City. As a condition of incorporation, the City adopted the County’s 2010 Plan. Up to this point, the County had taken no action on the Beyers’ beneficial use application.

2002: The Beyers submitted a new application and paid another application fee ($3,000) because the City refused to process the pending County application.

2005: The Beyers’ cause was finally heard by a Beneficial Use Special Master, nearly nine years after the application was first submitted. The Special Master found that “[o]ther than the Applicant being allowed to enter onto the property to camp, there is absolutely no allowable use of the property” under the 2010 Plan. The Special Master also found that the permitted camping “would not constitute reasonable economic value to the Applicant in light of their investment in the property.” In spite of these findings, however, the Special Master recommended denying the Beyers’ application because “[t]he Applicant has been adequately compensated by the issuance of 16 ROGO points[.]” The City Council adopted these findings and recommendations.

You’re probably wondering what “ROGO points” are.

ROGO (“Rate of Growth Ordinance”) establishes rules and procedures for the process of receiving building permits in Monroe County. This process controls growth with a competitive point system that allocates the limited number of development permits available annually.

At this point (no pun intended), the Beyers, having exhausted their administrative remedy, brought an inverse condemnation action against the City, alleging that they “have been deprived of all or substantially all, reasonable economic use of the subject property.”

Who could argue otherwise, you ask? Why, the Florida courts could.

2008: The circuit court grants final summary judgment in favor of the City (and the State of Florida, a third party defendant) concluding that the statute of limitations had run on the Beyers’ taking claim. The Beyers appealed.

2010: The Third DCA reversed and remanded, finding that the Beyers did not bring a facial taking challenge but rather an as-applied taking challenge for which the statute of limitations had not run.  Thank heavens for small favors.

2012: On remand, the circuit court again granted summary judgment in favor of the City and State on the ground that the Beyers failed to establish reasonable investment-backed expectations and, alternatively, under the laches doctrine. The Beyers again appealed.

2013: This time, the Third DCA fails to understand the injustice done to the Beyers. It concluded that the laches doctrine did not bar the Beyers’ claim, but nevertheless affirmed summary judgment on the basis that the Beyers failed to establish reasonable investment-backed expectations. The Beyers filed a timely motion for rehearing en banc.

September 14, 2016: Nearly three years after the motion for rehearing en banc is timely filed, the Third DCA as a whole refuses to hear the case.

The timeline alone makes it clear the injustice done to the Beyers, and Judge Shepherd explains quite well in his dissent why the City did indeed take the Beyers’ property and why his colleagues reliance on “reasonable investment-backed expectations” was wrongheaded. Read the whole thing. His conclusion is apt:

Although the intricacies of the various takings inquiries are without a doubt complicated and imprecise, one thing is certain: the Beyers have been singled out to suffer significant economic injuries in the name of the public good. They purchased an island zoned for residential development that the government transformed into a “bird rookery.” The only allowable use now is temporary, primitive camping (provided, incidentally, that no land clearing or alteration of the island occurs). If this is not a situation where justice and fairness require that economic injuries caused by public action be compensated by the government, I do not know what is. The decision of this Court that the Beyers have no constitutional taking claim against the City for what are indisputably excessive economic injuries is, well, for the birds. I hope that someday in the near future, this court reaffirms the notion that citizens have rights too. Accordingly, I respectfully dissent from the denial of the motion for rehearing en banc.

Pacific Legal Foundation will take this decision, and Judge Shepherd’s tour-de-force dissent, to the Florida Supreme Court and, if necessary, the Supreme Court of the United States. We look forward to Judge Shepherd’s dissent ultimately becoming the foundation for reversal of the Third DCA’s decision.

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Ganson v. City of Marathon, Florida

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 transferable development credits toward possible purchase of a limited number of development permits in other locations.

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