3rd DCA: Couple Not Deprived Of Island's Economic Use

, Daily Business Review


Third District Court of Appeal

Bamboo Key is a nine-acre island set in the aquamarine Florida Bay within boating distance of Marathon. It's home to numerous species of birds that populate the Florida Keys, as well as mosquitoes and no-see-ums.

Gordon and Molly Beyer bought the undeveloped island in 1970 when it was zoned for one home per acre. But they didn't move to develop the retreat until 1997. By then, Monroe County had identified Bamboo Key as a bird rookery and prohibited the Beyers from doing anything on the island other than camping.

On Wednesday, the Third District Court of Appeal in Miami sided with the city, county and state in upholding a decision granting summary judgment to the public agencies.

The Beyers sued for inverse condemnation in 2005, claiming the decision barring development amounted to a facial taking.

"The subject of governmental 'takings' of private property has become a prominent issue in the past two decades as state and local governments have started seriously confronting the issue of urban sprawl and its effect upon the quality of life—urban and rural—and the environment," according to the website of the nonprofit Municipal Research and Services Center of Washington in Seattle.

The Beyers' case has been ping-ponging between the appellate court and circuit court ever since. Gordon Beyer died during the litigation.

The complaint asserted the Beyers were deprived of all or substantially all reasonable economic use of the property by the changes in land use regulations over the years.

Attorney John R. Herin, a GrayRobinson partner in Fort Lauderdale who represented the city, said the appeals court recognized the Beyers did not develop the land when regulations were less onerous.

He said it was unknown what the Beyers planned for the island, but they submitted an estimate that the developed island would be worth $1 million.

The Third District Court of Appeal in Miami affirmed the lower court's ruling, noting recreational use was allowed and the city has assessed the value of the land at $150,000.

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