January 25, 2018

Supreme Court refuses to hear important Florida Keys takings case

By Mark Miller Senior Attorney

Earlier this week, we learned that the U.S. Supreme Court would not hear the important takings case arising from the Florida Keys known as Ganson v. City of Marathon. We are disappointed for the Beyer family, the family that owns the property at stake in the litigation, since a legally unjust taking of their property without just, or any, financial compensation will now remain good law in Florida. For now, anyway.

Gordon and Molly Beyer purchased an undeveloped, nine-acre island off the Florida coast known as Bamboo Key on which they planned to retire, as many northerners do. 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 Monroe County and later the City of Marathon 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 family just compensation for the taking. Instead, the city offered the Beyers only something akin to, but not even as purportedly legitimate as, so-called transferable development rights – what the government here calls points toward possible purchase of a development permit elsewhere in the Keys. 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. In other words, the Beyers’ property was not even taken at all, to hear the courts tell the story. The Beyers still own it after all – and they can pitch a tent! The mind boggles at the legal gymnastics one has to apply in order to call what happened here not a taking within the meaning of the Fifth Amendment.  You’d have to be a Philadelphia lawyer in the Florida courts in order to understand it, let alone believe it.

To be clear: PLF and the Beyers do not say the Fifth Amendment prohibits the government from taking the Beyers’ property for public use. We simply wanted the Beyers financially compensated for the taking. But the courts of Florida did not see it that way, and the U.S. Supreme Court has refused to hear the case. Nevertheless, we will continue to oppose the unconstitutional takings scheme that the Florida local governments use in South Florida to take property without just compensation and will work to change the law permanently to make sure when property is taken, owners receive just and financial compensation.

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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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