Family asks Florida high court to lift bird ban on their private property

By William Patrick  /   November 22, 2016  /   News  /   31 Comments @ Florida Watchdog

 

A Florida family is looking to the state Supreme Court to resolve a decades-old property rights dispute that’s gone to the birds — literally.

In 1970, Tom and Molly Beyer purchased a 9-acre island in the Florida Keys for $70,000. The property was intended to be a legacy investment for the couple’s children. Despite development zoning, local officials eventually blocked the Beyers from building on it through a series of land use restrictions.

First, they could only develop one home per acre. Then, one home per 10 acres. Finally, Monroe County officials designated the vacant investment property a bird rookery, effectively banning all future development.

“This case is about an uncompensated property grab — literally, an unconstitutional island grab,” said Mark Miller, managing attorney for the Pacific Legal Foundation’s Florida-based Atlantic Center.

“The island has been seized from the Beyers in all but name,” he said.

The couple passed away during the past twenty years of legal battles to reclaim the use of their land, and their children have since taken up the family cause. They’ve enlisted the help of the the nonprofit public interest law firm that specializes in property rights and a “balanced approach to environmental regulations,” according to its website.

Miller filed an opening brief with the Florida Supreme Court earlier this month to appeal the Third District Court of Appeal’s previous ruling, which sided with the city of Marathon against the Beyers.
The high court asked to hear the challenge but has yet to officially take up the case.

The Third District held that the city met its constitutional obligations to offer “just compensation” for the land through a local Rate of Growth Ordinance (ROGO) program. Under the scheme, points are awarded toward the purchase of development permits in city approved areas.

A trial court beneath the Third District also approved the compensation gesture as satisfying the Fifth Amendment’s Takings Clause that prohibits the government from taking private property without payment.

In 2005, a city land official known as the Beneficial Use Special Master awarded the Beyers 16 ROGO points after denying their initial appeal to lift the bird rookery designation.

Miller says the points, or credits, aren’t a “tangible payment,” and don’t come close to a fair arrangement.

“At best, they amount to guesswork about possible development at some undetermined time in some unidentified place,” he said.

According to the brief, evidence presented during the Special Master proceeding showed that the rookery reclassification had diminished the value of the property by 98.7 percent.

What’s more, the family has been required to pay taxes on the property since its purchase.

“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,” Miller said.

If the state Supreme Court decides not to take up the case, Miller said he’s prepared to go all the way to the U.S. Supreme Court if necessary. His firm is representing the Beyer family at no charge.

 

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William Patrick is Watchdog.org’s Florida reporter. His work has been featured on Fox News and the Drudge Report, among other national sites. He’s also been cited and reposted by numerous statewide news organizations.  wpatrick@watchdog.org