Thursday, January 1, 2009

Monroe County may have to spend at least $15 million to buy nearly a dozen pieces of Florida Keys properties because the government's land-use regulations rendered them undevelopable, according to a court opinion issued Wednesday.

The 3rd District Court of Appeals decision overturns two property-rights cases, one that favored Monroe County and one that favored the city of Marathon, both rendered by 16th Judicial Circuit Judge David Audlin.

In the former, Audlin ruled against Thomas Collins and 10 other property owners who sued the county and state, saying their land-use rules deprived them of their development rights. The judge said the rules, mostly designed to protect sensitive wildlife habitat, amounted to a "facial taking" of the properties, but that the property owners failed to challenge them within a four-year statute-of-limitation period. The rules went into effect in 1997 and the homeowners challenged them in 2004.

The appeals court, however, ruled that the rules amounted to a more severe classification of takings called "as applied," for which there is no statute of limitations, said Jim Mattson, lead attorney in the Collins case.

The appeals court also said that two of the property owners' claims for compensation were rendered moot when they were issued building permits after the lawsuit was filed.

The county on Wednesday was in the process of analyzing the appeals court opinion, Assistant County Attorney Bob Shillinger said. The county and state have 15 days to decide whether to appeal to the Florida Supreme Court or to seek clarification from the appeals court on some inconsistencies and omissions, Shillinger said.

"The appellate court made no findings of fact on this issue," Shillinger said, emphasizing the decision is an opinion, not an order. "In short, we're back to square one."

If the opinion stands, the case would return to Audlin to decide whether the county and state are liable for the takings.

The County Commission initially had agreed with the property owners, but never offered a reasonable amount to purchase the property, Mattson said. They are entitled to full compensation for the value of the lots, which equates to at least $15 million, Mattson argued.

Shands Key

In the Marathon case, a family's battle to get permission to build a home on an offshore island near Key Vaca was given new life on Wednesday.

The ruling stated the Shands family, which owns the 7.9-acre island known as Shands Key, were due their day in court. Their island is several hundred yards off the gulf side of Marathon.

In late 2007, Audlin dismissed the Shands case, again believing the four-year statute of limitations had long expired. The latest ruling essentially reverses his dismissal and calls for a new trial.

As in the Collins case, the city can seek an appeal or clarification. Marathon City Attorney Jimmy Morales said he could not comment on the case as of press time.

The ruling stated: "The trial court must determine whether, and what, compensation is to be made under the circumstances, whether the city must grant [transferable development rights] equivalent to the buildable upland property or purchase the property outright."

The story of Shands Key began in 1956 when R.E. Shands bought the island for $20,500 with the intention of developing a single-family home on the property and connecting the island to the mainland with a road. R.E. Shands died in 1963, leaving the island to his wife and children.

"In the 1960s, we were well under way to developing this island," Tom Shands, one of the four adult children of R.E. Shands, told The Citizen in 2007. He said when the patriarch died, "The Shands family income died ... our focus shifted away from the island."

Back then, the Shands family could have built as many as seven single-family homes on the island, but the implementation of new Monroe County land development regulations in 1986 created a rule that offshore islands had to encompass at least 10 acres for any kind of development to be allowed. The city adopted those rules when it incorporated in 1999.

After having a permit request to build a dock denied, the Shands family held a hearing with the Marathon City Council in 2007. Prior to that hearing, Special Master Tom Wright recommended the city grant the Shands family one Rate of Growth Ordinance-exempt building permit, or pay the property owners $3 million for the island. The council, in a 3-2 vote, did neither, and as a result, the Shands family took the matter to court.

According to the most recent appeals court opinion, Audlin had ruled the case a "facial taking," which occurs when the mere enactment of the regulation -- in this case the 1986 comprehensive plan -- precludes all development, and constitutes a taking of all economically beneficial use of a party's land.

"While it is true that a development moratorium on such high quality hammock land as Shands Key precluded building on it, it is also true that the availability of [Rate of Growth Ordinance] allocation points and [transferable development rights] for at least six acres of the upland portion of the Key suggests that some, perhaps not insignificant, economic value remains," the opinion stated. "We conclude that the facts in this case present an as-applied taking cause of action."

The opinion noted that an "as-applied taking" means the statute of limitations time limit began when the City Council voted to deny the special master's recommendation in 2007, putting the Shands family case within an acceptable timeline.

Through myriad court cases, the ultimate goal remains the same, said Pacific Legal Foundation Managing Attorney Valerie Fernandez, who is handling the Shands family case.

"They want to build their family home," Fernandez said. "That was their father's dream."

tohara@keysnews.com

rbusweiler@keysnews.com