CITY OF MARATHON, FL;  October 31, 2016: The City of Marathon has robbed a family of constitutional property rights, and deprived family members of a legacy from their late parents, by designating their nine-acre island as a bird preserve, or “rookery,” prohibiting the family from building a home or anything else on the vacant property.  The city is violating the Constitution by refusing to pay the family a meaningful form of “just compensation,” as the Fifth Amendment’s Takings Clause demands when government seizes private property or prohibits any economically beneficial use of it.

So argues a brief filed today with the Florida Supreme Court by Pacific Legal Foundation, on behalf of the victims of this unconstitutional taking:  Tom Beyer and his brother Hugh and sister Teresa, who inherited the island, Bamboo Key, from their late parents, Gordon and Molly Beyer.  Donor-supported PLF is the leading watchdog organization that litigates for property rights nationwide.  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.

Today’s filing is the opening brief in the Beyer family’s appeal to the Florida Supreme Court, after the Third District Court of Appeal ruled for the City of Marathon.  The court held that the city satisfied its compensation obligations by offering some “points” that in theory could allow possible development somewhere else.  Judge Frank Shepherd, who dissented from the court’s decision not to rehear the case en banc, declared that this scheme is too speculative and the family is being unlawfully forced “to suffer significant economic injuries.”

A family’s rights regulated away — with no “just compensation”

“This case is about an uncompensated property grab — literally, an unconstitutional island grab,” said Mark Miller, managing attorney with PLF’s Florida office in Palm Beach Gardens.  “The island has been seized from the Beyers in all but name.  Although the city is oh-so-generously allowing the family to continue paying taxes on their island property, and to retain all the liabilities that come with property ownership, bureaucrats have commandeered the actual use of it for purposes of their own choosing.  The Beyers aren’t allowed to do anything but camp on the island, and they haven’t been offered a dime in reimbursement.

“We’re asking the Florida Supreme Court to take this case — and we’re prepared to go all the way to the U.S. Supreme Court if necessary — because the dissenting judge below was right,” Miller continued.  “The city’s excuse for not compensating the Beyers is, literally, ‘for the birds.’  So-called development points or credits are not a tangible payment.  At best, they amount to guesswork about possible development at some undetermined time in some unidentified place.  At worst, they amount to peanuts in a shell game.  Either way, the Constitution’s protections for property owners are being evaded, not obeyed.”

Bamboo Key was purchased by Gordon and Molly Beyer in the 1970s as a family investment and a place to eventually build a home for retirement.  But 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.”  Although the county did not formally take possession of it, the Beyers were prohibited from building anything.  The only use they could make of it, they were told, would be temporary camping.

After Marathon incorporated in 1999, it took jurisdiction over the island, continuing the county’s regulatory restrictions.

The Beyer offspring fight for their late parents’ dream

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.

“Our father spent so much time thinking about building a house on Bamboo Key, it was sad that by the time he retired and had the time to devote to the project, the government had taken away his ability to develop it,” said Tom Beyer.  “He pursued the court case but, unfortunately, it  outlived him.  I know that he wanted us to be able to develop the island as we saw fit and to continue to pursue the court case to see the injustice put right.  We are grateful that PLF is helping us pursue that goal.”

This case has implications for everyone’s property rights

“The principles at stake in this case are important for all property owners, large or small, wherever they live,” said PLF’s Mark Miller.  “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.”

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations.  PLF’s Atlantic Center is located in Palm Beach Gardens, Florida.  PLF represents all clients free of charge.


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About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 18 wins of 20 cases litigated at the U.S. Supreme Court.

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