Nestled in the center of the Florida Keys lies the City of Marathon; a tropical paradise splitting the Atlantic Ocean and Gulf of Mexico. Recently, Florida’s Third DCA hatched the case of Beyer v. City of Marathon. On September 14, 2016, Judge Shepherd’s dissenting opinion summarized the Third District Court of Appeal’s refusal to hear the case in the following manner:

[The Beyers] purchased an island zoned for residential development that the government transformed into a “bird rookery.” The only allowable use now is temporary, primitive camping (provided, incidentally, that no land clearing or alteration of the island occurs). If this is not a situation where justice and fairness require that economic injuries caused by public action be compensated by the government, I do not know what is. The decision of this Court that the Beyers have no constitutional taking claim against the City for what are indisputably excessive economic injuries is, well, for the birds. I hope that someday in the near future, this court reaffirms the notion that citizens have rights too.

In contrast to the majority’s one-word per curiam Order denying the Appellant’s Motion for Rehearing and En Banc Review, Judge Shepherd’s 25-page dissent is a tour de force of regulatory taking jurisprudence. The opinion decries the actions of Monroe County and the City of Marathon, which like waves on a beach, slowly eroded the Beyer’s property rights. The very first paragraph of the opinion starts off with a bang:

This is a significant regulatory takings case, the holding of which is that a local government can regulate private property to an extent that is functionally comparable to the classic physical taking—without paying just compensation—so long as it does so incrementally over a period of time. This cannot be, and indeed is not, the law.

In his dissent, Judge Shepherd painstakingly walks through the timeline of the facts that chronicle the continuous degradation of the Beyer’s property rights. While we did not reprint it here in the interest of space; suffice it to say it is a storyline which is more convoluted than Netflix’s Bloodline series. (If you care to read the full opinion, you can find it here).

The twisted procedural history of the case starts in 2008 when the Beyers brought a “total taking” challenge alleging a deprivation of all, or substantially all, economic use of their land pursuant to Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992). Specifically, the Beyers alleged the 2010 Land Use Plan—as applied to their property—effected a total regulatory taking because it deprived them of all economic use of their land.

As a reminder, in Lucas, the property owner purchased two residential beachfront lots that were subsequently rendered undevelopable by the state’s enactment of the “Beachfront Management Act.” Lucas did not challenge the validity of the Act as a lawful exercise of the state’s police powers, but instead contended that the Act’s complete extinguishment of any development on the property entitled him to compensation. The Supreme Court agreed stating “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Id. at 1009.

In the first appeal in 2010 following the trial court’s summary judgment dismissal based on the Statute of Limitations, the Third DCA first misinterpreted the Beyer’s “total taking” challenge as the equivalent of a facial taking challenge. As Judge Shepherd notes, this case started going south immediately with an improper ruling by the trial court, and worse, the utter mishandling of the first appeal by the Third DCA. Also, although the Third DCA’s 2010 opinion did not cite the case of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), their misapplication of the Penn Central test, rather than the Lucas test prompted the circuit court on remand to do so likewise.

But, if the Third DCA’s 2010 opinion was a “flip flop blowout,” their 2013 opinion was the “cut on the heel”, as Jimmy Buffet would say. The Third DCA again failed to properly recognize the Beyers’ claim as a “total taking” claim under Lucas, but instead (mis)applied the “Ad hoc” standards of Penn Central. A regulatory taking analyzed pursuant to Penn Central requires the court to consider an array of factors to determine if a taking has occurred, including the character of the government action, the regulation’s interference with the property’s investment-backed expectations, and the regulation’s effect on the landowner. While SCOTUS insists that none of these three factors are to be deemed dispositive, the Third DCA nonetheless exclusively focused on its finding that the 2010 Plan did not interfere with the Beyer’s reasonable investment-backed expectation. As a result, the Third DCA upheld summary judgment in favor of the City and County.

In summary, the Beyers went from owning an own island where they could build a house to owning a bird rookery on which they could temporarily pitch a tent. It will be interesting to see if the Florida Supreme Court takes review of the Beyer’s claims, and if so, we will be sure to give you a birds-eye view.