Denials of rehearing and motions for en banc review from a state intermediate appellate court generally do not catch our attention. But Ganson v. City of Marathon, No. 3D12-777 (Sep. 14, 2016) is the exception to that rule.
This is a long-running regulatory takings dispute between property owners in the Florida Keys -- who are making a Lucas claim that the City's regulations prohibit economically beneficial use of their island -- and the appropriately-named City of Marathon (see here and here, for example).
The majority ruling is just what you'd expect in a disposition such as this: a one word per curiam "Denied," with 6 judges concurring. The reason we're posting the ruling, however, is the 3-judge dissent, which starts off like this:
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. I respectfully dissent from the denial of the Beyers’ motion for rehearing en banc, and write to explain my disagreement with this Court’s willingness to dispense with applicable Takings Clause precedent to reach a result that is contrary to the constitutional principle that excessive economic injuries caused by government action be compensated.
Order at 2.
If that isn't enough to grab your interest, the dissent contains a summary of the facts, which start in 1970 with the plaintiffs' purchase of the land, and the government's subsequent efforts (starting in 1986, apparently) to prevent them from development, has a good rundown of regulatory takings law, and some editorializing about the state of federal regulatory takings jurisprudence ("not particularly coherent," "genuinely enigmatic," for example).
But we think you should read the entire dissent, because it peels back the usual judicial curtain and exposes how some takings decisions -- seemingly inexplicable, except as a result designed to save the government fisc -- get rendered. Here, according to the dissent, the owners are being "required to leave their property in its natural state." Dissent at 13. The Special Master concluded, "[o]ther than the Applicant being allowed to enter into the property to camp, there is absolutely no allowable use of the property under the City of Marathon Land Development Regulations." Id. Yet the court earlier "went to great lengths to transform the [owners]' categorical challenge into one controlled by the ad hoc, factual inquiry set forth in Penn Central." Id. at 12 (footnote omitted). "Unfortunately, despite the unmistakable parallels between the economic impact in Lucas and the economic impact on [these owners]' property, [their] challenge was never considered under Lucas's total regulatory takings framework. Id. at 14. There's more, but really, you should just read the dissent.
Will this result in an effort to seek further review by the Florida Supreme Court (or higher)? We wouldn't be surprised at all.
*We know the lyrics to the Buffet song are "wasted away," but we took artistic license with this post's title, since we think "wasting away" more accurately describes the situation here where the property owners have been engaged in a Marathon struggle.