Is a Regulatory Taking Permanent or Temporary in Florida? (Galleon Bay v. Monroe County)

The Facts

Galleon Bay Corporation owned a 10.64-acre tract on No Name Key in the Lower Keys, zoned Commercial Fishing Village, which Monroe County approved for 14 lots in 1991. A recorded declaration limited the lots to single-family residential use and the uses permitted in that district. Galleon Bay applied for building permits in 1996 and waited in the County’s Rate of Growth Ordinance (ROGO) queue. After an application for administrative relief, the County Commission’s July 19, 2001 decision left it without allocations, and Galleon Bay sued for inverse condemnation.

The case went up several times. In Galleon Bay Corp. v. Board of County Commissioners of Monroe County, 105 So. 3d 555 (Fla. 3d DCA 2012), the Third District reversed a judgment for the governments. It held the trial court could not read the declaration’s “and” as “or,” and remanded for a judgment of liability for Galleon Bay, a takings order, and a compensation trial. On remand the trial court entered a judgment of liability and order of taking, treated the taking of the lots as permanent, and a jury fixed compensation using July 19, 2001 as the valuation date. Galleon Bay appealed, and the County and State cross-appealed.

The case was argued in February 2018. These points are what the lawyers argued, not findings by the court:

• Galleon Bay argued that a regulatory taking found in an inverse condemnation suit is temporary unless the government chooses to condemn the land in eminent domain, which a county can do only after adopting a resolution. Treating the taking as permanent, it argued, gave the government the land at 2001 values instead of the value at trial.
• It also argued the jury should not have heard that the lots had to combine a commercial fishing use with a house, that the lack of electricity in 2001 rested on a policy later found unlawful, and that Fish and Wildlife would never allow building, calling these unsupported stigma.
• The State and County argued the complaint alleged ROGO and the 2001 decision as the taking, that inverse condemnation compensation is measured on the date of the taking, and that appraisers must value the land as a buyer would have seen it on that date, including no electricity and the federal flood insurance limits in the Keys.
• On cross-appeal, the governments argued Galleon Bay was owed nothing for lots that later received ROGO allocations, relying on Collins v. Monroe County.

The Decision

The Third District affirmed on September 12, 2018, in a per curiam decision without a written opinion. Galleon Bay moved for rehearing, a written opinion, and rehearing en banc, and all were denied on February 1, 2019. The court separately denied Galleon Bay’s motion to reconsider an order on appellate attorney’s fees, without prejudice to arguments it could make on remand. The mandate issued February 19, 2019.

A per curiam affirmance decides only this case. It does not tell us whether the court agreed that the taking was permanent, that 2001 was the right valuation date, or that the evidence was properly admitted. The trial court’s judgment stands.

The Law

Inverse condemnation is the owner’s suit to be paid when government action has already taken property without a formal condemnation. The Florida Supreme Court explained in Joint Ventures, Inc. v. Department of Transportation, 563 So. 2d 622 (Fla. 1990), that it is an after-the-fact remedy and not a substitute for eminent domain. The U.S. Supreme Court held in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), that the government must pay for a temporary regulatory taking.

In a formal eminent domain case, section 73.071(2) measures compensation as of the date of trial or the date title passes, whichever comes first. That is the rule Galleon Bay wanted. Inverse condemnation cases generally value the property as of the date of the taking, which is the rule the governments relied on.

A county may not use eminent domain unless its commission first adopts a resolution authorizing the acquisition and stating the public purpose, under section 127.02. Galleon Bay argued that because Monroe County never did that, a court could not treat the County as having permanently acquired the lots.

Lessons

• Winning liability in a takings case is only half the fight. The valuation date and the evidence the jury hears can decide what the land is worth.
• The date pleaded as the date of the taking matters. Here the parties agreed on July 19, 2001, and that date shaped the whole compensation trial.
• Owners who want permits, not money, should ask for that relief clearly and early, because the government chooses its response once a taking is found.
• Takings cases in the Keys can run for decades. This one began with a 2002 suit and was still in the Third District in 2019, after several earlier appeals.
• An affirmance without opinion is not a ruling that every regulatory taking is permanent.

Source: Galleon Bay Corp. v. Board of County Commissioners of Monroe County, No. 3D16-1502 — Fla. 3d DCA docket (affirmed September 12, 2018; rehearing denied February 1, 2019); earlier opinion: Galleon Bay Corp. v. Board of County Commissioners of Monroe County, 105 So. 3d 555 (Fla. 3d DCA 2012).

Watch the Oral Argument

This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.

Regulatory Taking in the Florida Keys: Permanent or Temporary, and Which Valuation Date Applies?

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Frequently Asked Questions

What is a regulatory taking in Florida?

It is when government regulation goes so far that it deprives an owner of all or substantially all reasonable use of the property, so the government must pay even though it never formally condemned the land. The owner sues for inverse condemnation. In Galleon Bay, the Third District had earlier directed a judgment of liability for the owner after Monroe County’s growth controls left its lots without building allocations.

Is a regulatory taking permanent or temporary?

It can be either. Under First English, the government must pay even for a temporary taking, and once a taking is found it can change the regulation, withdraw it, or condemn the land. In Galleon Bay, the trial court treated the taking as permanent and the Third District affirmed without a written opinion, so the case sets no general rule.

What date is used to value land in an inverse condemnation case?

Usually the date of the taking. In a formal eminent domain case, section 73.071(2) uses the date of trial or the date title passes, whichever is first. Galleon Bay’s lots were valued as of July 19, 2001, and that judgment was affirmed.

Can a Florida county take my land without a resolution?

Not through eminent domain. Section 127.02 requires the county commission to adopt a resolution authorizing the acquisition and stating its public purpose first. An inverse condemnation suit is different because the owner, not the county, starts it.

Talk to a Florida real estate litigation lawyer

Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.

Read the law yourself, free: every Florida statute and court rule is on floridarules.net.

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