July 7, 2017

Government evades property rights by stalling

By Christina M. Martin Attorney

For an example of how impossible it can be for property owners to ripen (i.e., get a court to hear) a takings claim, look no further than the decision today in GolfRock, LLC v. Lee County.  Even when the government regulates away the use of your land, it can sometimes be very difficult to get courts to hear your claim for just compensation under the Fifth Amendment’s Takings Clause or any state equivalent.

GolfRock sought a permit to mine its land in Lee County in 2005. Several years of government stalling and five application supplements later, the County changed the rules—the local comprehensive plan—to preclude mining on GolfRock’s land. Even after banning mining on the property, the County refused to reach a final decision on GolfRock’s pending application.  This unfair response suggests the County knows government can often evade constitutional challenges when it just stalls and refuses to issue a “final decision” on a permit application.

In 2013, after the County made it abundantly clear that it would not process the application, GolfRock filed a lawsuit for declaratory relief, asking a Florida trial court to declare GolfRock’s takings claim ripe. GolfRock did this because it understood how often plaintiffs are tossed out of court when the government has not issued a final decision on a permit. If GolfRock’s claim was ripe, they would then file a claim seeking just compensation for the lost value of their property. If the claim was not ripe, they would have to apply to the County again, asking it to amend the regulations to allow mining on their land. Practically speaking, of course, it would be absurd to require GolfRock to apply yet again, because the County already made clear that it would never allow mining.

Sadly, the trial court missed that point, misinterpreting case law to require one more application before any takings claim would be ripe.  PLF supported GolfRock on appeal with an amicus brief explaining why the takings claim is ripe.

Two years later—12 years since GolfRock filed its initial application—the court of appeal issued a baffling decision saying that it would not decide whether the claim was ripe! Why? Because the plaintiffs’ complaint failed to say that GolfRock was in doubt about whether its claim was ripe or not.  We hope this case is corrected, clarified, or overturned soon, because the decision is as baffling as it is bad for property owners.

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GolfRock, LLC v. Lee County, Florida

GolfRock sought a permit to mine its land in Lee County in 2005. Several years of government stalling and five application supplements later, the County changed the rules—the local comprehensive plan—to preclude mining on GolfRock’s land. Even after banning mining on the property, the County refused to reach a final decision on GolfRock’s pending application. In 2013, after the County made it abundantly clear that it would not process the application, GolfRock filed a lawsuit for declaratory relief, asking a Florida trial court to declare GolfRock’s takings claim ripe. The trial court demanded one more application and GolfRock appealed, with PLF’s support as amicus curiae.

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