County to appeal takings lossBy Steve Estes
The Third District Court of Appeals has overturned a local court ruling that said the county did not adversely affect property in the Galleon Bay subdivision of No Name Key
And that latest reversal on appeal could cost the county upwards of $3 million in a takings settlement.
The case of Galleon Bay has been bouncing around the courts for a decade, with first one side then other winning a major battle only to have that win tossed aside and get back to square one.
At one point, Galleon Bay property owners were awarded $3.5 million and hadn’t earned the right to build on any of the 13 lots. They rejected that amount, went through another damages trial and were awarded less than $1 million as the trial court opined that because of county building restrictions and the lack of progress by the developers the best use of the land was commercial fishing and trap storage.
After another round of court battles, the county got a ruling that said it had not taken the property, which the owners of Galleon appealed.
And that appeal is the one that came through in early December.
In that ruling, the appeals court said that the lower court had applied erroneous interpretations, and that the ruling of no taking was invalid.
The appeals court sent the matter back to Circuit Court for Judge Mark Jones to enter a determination of taking and hold another hearing for damages.
But the matter isn’t yet over.
County Attorney Bob Shillinger told the Monroe Board of County Commissioners last week that the plan is to ask the appeals court for a re-hearing, and failing that, appeal the Third DCA ruling to the Florida Supreme Court.
While the Galleon case has been wending its way through the courts, the county has issued four residential building allocations for the subdivision, one of which was allowed to expire, and the remaining nine properties are at the top of the list for future building allocations in the Lower Keys subarea.
Also during the time the trial has been going on through appeals, the county has entered into the Habitat Conservation Plan and Incidental Take Permit agreement with the US Fish and Wildlife Service which limits further human development on Big Pine and No Name Keys in return for mitigation generally in the form of purchase of land.
The appeals court didn’t specify whether new land development regulations promulgated by the federal government would play a part in determining taking settlements, but did opine that county-originated changes should not have affected the lots already platted with a reasonable expectation of future development.
Galleon had originally asked for 42 lots, but after negotiation with the county sliced that back to 14, and one of those has since been transferred, leaving 13.
The appeals court did not specify whether the local court should consider 42 lots or the 13, four of which have received building allocations.
According to County Mayor George Neugent, the Galleon Bay hit would use a large chuck of general fund money if the county ultimately loses, similar to the Shadek case of a few years back that cost the county $6 million.
Neugent is also curious what, if anything, it could mean to a potential takings settlement if the Board of County Commissioners were to change the land development codes and allow commercial power on No Name Key, as was hinted at the last BOCC meeting.
Legal staff is supposed to address those questions.