In short: Generally no. Under the Florida Supreme Court’s Jirik decision, separately platted lots are presumed to be separate units, and a court may not fold them into an owner’s long-finished developments to find its expectations were met. In Galleon Bay Corp. v. Board of County Commissioners of Monroe County, a family company’s 13 remaining lots on No Name Key were frozen by growth controls. On December 5, 2012, the Third District reversed a judgment for the county and directed entry of a liability judgment for Galleon Bay, with a trial on compensation to follow; the Florida Supreme Court denied review on October 15, 2013.
The Facts
In the 1960s and 1970s, Wolfgang and Hannelore Schleu developed subdivisions on No Name Key in the Florida Keys, including Bahia Shores and Dolphin Harbour. Their company, Galleon Bay, later sought to plat a separate 10.64-acre tract. After years of negotiation it obtained a 14-lot plat, approved in 1991 and revised in 1994 with a conservation easement and a deed restriction limiting use of the lots to single-family residential and commercial fishing village purposes.
Monroe County’s 1992 Rate of Growth Ordinance (ROGO) sharply limited building permits. Galleon Bay applied for permits for its 13 remaining lots and waited for years. When it sought administrative relief in 2001, the county offered to buy the land, but the purchase never closed. Galleon Bay sued for inverse condemnation in 2002.
The case went to the Third District repeatedly. A first judge granted summary judgment on liability for Galleon Bay, and a jury awarded $3 million, but a new trial on value was granted. A successor judge later vacated the liability ruling, and after a bench trial the court entered judgment for the county and the State. Galleon Bay appealed (No. 3D11-1296), and counsel told the court it was the case’s seventh visit. The points below are what the lawyers argued, not findings by the court.
- Galleon Bay argued the trial court wrongly aggregated its lots with the family’s decades-old subdivisions and misapplied the relevant-parcel rule from Jirik.
- It argued the county’s “trap storage” use rested on reading “and” in the deed restriction as “or.”
- The county and the State argued that unity of ownership, contiguity and use made aggregation a question of fact, and that the lack of federal flood insurance on the island and federal wildlife opinions opposing development undercut any reasonable expectation of building 13 homes.
- The panel questioned the relevance of flood insurance, the reliance on federal agencies that were not parties, and the reading of “and” as “or.”
The Decision
The Third District reversed on December 5, 2012, in a written opinion. It held that the trial court misapplied Jirik, which treats vacant land platted into lots as presumptively separate units, and that Jirik is not limited to incorporated cities. It also held the trial court erred in lumping the Galleon Bay lots together with the Bahia Shores and Dolphin Harbour subdivisions developed decades earlier to find that the owners’ investment-backed expectations had been met. The platting, the money spent and the permit applications showed the property was pursued for home construction.
On the deed restriction, the court held that “and” means “and.” Because the restriction was a negotiated land-use limit, the trial court was not free to redefine the word. That meant the county appraiser’s $250,000 trap-storage value could not support the finding that ROGO did not reduce the land’s value.
The court remanded with instructions to enter a judgment of liability for Galleon Bay and to proceed to a compensation trial. Rehearing and rehearing en banc were denied on February 5, 2013, and the Florida Supreme Court denied review on October 15, 2013.
The Law
A regulation that goes too far can be a taking that requires just compensation. Outside the rare total wipeout, courts use the Penn Central factors: the economic impact on the owner, interference with reasonable investment-backed expectations, and the character of the government action. A threshold question is the “relevant parcel,” the denominator against which the loss is measured. The bigger the parcel, the smaller the loss looks.
In Department of Transportation v. Jirik, 498 So. 2d 1253 (Fla. 1986), the Florida Supreme Court held that vacant property platted into lots is presumptively made up of separate units. Galleon Bay applied that presumption to a regulatory takings case and refused to let a government enlarge the denominator by reaching back to an owner’s earlier, completed projects.
Lessons
- Platting land into lots matters. In Florida, platted lots are presumed to be separate parcels for takings purposes.
- Your past success on other land is not a defense the government can use to deny compensation for the land it regulated.
- Read deed restrictions and permit conditions exactly as written. A single word decided the value question here.
- Keep records of money spent, permit applications and the government’s responses. They prove investment-backed expectations.
- Takings litigation can take a decade or more and several appeals before compensation is even tried.
Source: Galleon Bay Corp. v. Board of County Commissioners of Monroe County, No. 3D11-1296 (Fla. 3d DCA Dec. 5, 2012); ACIS docket (rehearing denied Feb. 5, 2013; review denied by the Florida Supreme Court Oct. 15, 2013).
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: Can 13 Platted Lots Be Aggregated as One Parcel?
Go Deeper
- Florida Real Estate- Bert Harris Claims, Flood Insurance And Construction Permits
- Does MRTA Protect FDOT Land Held in Fee for a Drainage Canal? (DOT v. Mid-Peninsula Realty)
- Does a Quiet Title Judgment Wipe Out an Easement Nobody Pleaded? (Keys Island v. Crow)
Frequently Asked Questions
What is the relevant parcel in a regulatory taking case?
It is the property against which the court measures the owner’s loss. If the parcel is defined broadly, the loss looks smaller. In Galleon Bay, the Third District refused to treat 13 platted lots as part of subdivisions the family had developed decades earlier.
Are platted lots treated as separate parcels in Florida?
Presumptively, yes. Under Department of Transportation v. Jirik, vacant land platted into lots is presumed to consist of separate units, and Galleon Bay held that presumption is not limited to land inside a city.
Can I sue the county if growth controls stop me from building on my lots?
You may have an inverse condemnation claim if the regulation goes too far, but you usually must first use the available permit and administrative relief process. Galleon Bay waited in the ROGO system for years and sought administrative relief before suing.
What happens after a court finds a regulatory taking?
Liability is only the first step. The case then goes to a compensation trial to set the value of what was taken. In Galleon Bay, the Third District directed a liability judgment and a separate trial on compensation.
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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