duck key

An Information Guide to Duck Key in the Florida Keys























Article which appeared in the Upper Keys Reporter


The Upper Keys Reporter does not have an archive file.


District court property rights decision raises eyebrows in Monroe County

 BY ANN HENSON - July -2003
Staff Writer, Upper Keys Reporter


A decision by the Third District Court over a Miami-Dade County zoning issue that found for the protection of private development rights last week caught the attention of county officials and land-use attorneys. The case involved a Miami Beach ordinance that restricts high-rise developments to six floors.

The ordinance, passed by the city in 1998, thwarted the plans of Royal World Metropolitan to develop a 2.5-acre parcel with a 24-story building. The company sued, claiming the Bert Harris Act, which protects property wners from actions taken by the government that lower private property values or interfere with the use of the property. The act was passed by the state Legislature in 1995. A circuit court judge ruled in favor of the city, saying that while the act protects property rights, another portion of the act states the local government cannot be held liable for damages.

The district court overturned the lower court's ruling, saying that the Legislature intended to preserve property rights. And, when one portion of a law conflicts with another portion, the original intent of the law must prevail, the court said.

The building owner can now sue the city for $7 million in damages. That case could have implications for a case in Monroe County, but it all depends whom you ask. The Monroe County case, called the Ambrose case, seems to parallel the Miami-Beach case in that similar contradictory language exists.

The Third District Court of Appeals has been weighing this case for the past five months. This potentially landmark case involves 90 plaintiffs whose lots were platted prior to 1972. And, it has the potential to dismantle the county's Rate of Growth Ordinance and similar ordinances in all areas of critical state concern, according to the plaintiffs' attorney, Jim Mattson.

This case revolves around whether the state's Area of Critical State Concern label applies to those lots platted prior to the law's enactment in 1979.

Mattson said another 500 plaintiffs are waiting in the wings as a class-action suit should he prevail.

This is another case where legislative intent comes into play. Ed Guediss, with Weiss Serota, served as lead attorney for the county and Islamorada in this case. He argued that the Legislature intended to limit growth by imposing the Area of Critical State Concern because of environmental and other concerns.

But Mattson said that the law also contains a vested-rights clause to protect property owners from changes or modifications in land use.

And since there is ambiguity, the resolution must be in the favor of the property owner, he said.

Guediss argued that other legalities also come into play &endash; namely, that the lots were not platted according to a local subdivision plat law because there was none prior to 1972. He said all platting does is allow completion of infrastructure.

Former county attorney Hendrick believes that the other specific provisions and rules override the vested rights. "There was a movement to protect platted lots in subdivisions under water," he said. "Platting doesn't necessary trump vesting. This is a very complicated case and the outcome should be interesting."

Mattson said that District Court is the highest level of appeal. The losing side could ask for a rehearing or petition the U.S. Supreme Court.


Eminent domain or condemnation is the power of the government to take private property for a public purpose, with the payment of fair compensation for the property taken against the will of the owner.

Inverse condemnation or takings claim allows a property owner to be compensated for a government action that deprives the owner of all use of the property either by seizure or through excessive regulation.

Bert Harris Act allows property owners to sue the government for compensation as a result of governmental actions taken that reduce the value of the property or interfere with owner's use of the property. The owner retains the property. The act was created by the state Legislature and can be amended.



Back to [ Website Index] [ Archive Index ] [ Main Community Index ]