There’s a cautionary tale in the Florida District Court of Appeal’s opinion in Key Haven Associated Enterprises, Inc. v. Fla. Dep’t of Envt’l Protection, No. 1D2025-0660 (Fla. Dist. Ct. App. Aug. 26, 2026), which held that a regulatory takings claim was barred by the statute of limitations.
There, the owner applied to develop land in and once it received the final “no” from the State, sued for a taking. All good, right? After all, your claim isn’t ripe until the reviewing authority has given its final answer on whether or how the property might be used. But the court asserted the owners should have known years earlier that a development application would be denied, meaning that the statute of limitations began running before the owner even filed the development application. You are too early, or too late.
The court viewed the government adopting the restrictions as the action taking the property, and this occurred decades ago, and not when the agency denied a permit application in 2018. The court seemed to view the owner’s permit application as an attempt to restart the expired clock.
Key Haven purchased submerged lands in the Florida Keys from the state in the 1960s, after which it obtained approvals to create a residential subdivision. It dredged canals and filled land, and sold most of these lots. But then in the 1970s along came Florida’s environmental laws which which resulted in the state ordering Key Haven to stop dredge-and-fill operations, leaving nineteen lots unfinished. According to the court, everyone understood by 1973 that the project could not be completed. And there the matter sat, for decades.
Then in 1986, amendments to the Monroe County Comprehensive Plan added another layer of prohibition by barring development on mangrove-designated lands. The result, according to the court, was a long-settled regulatory regime under which these remaining lots could not be developed.
Fast forward to 2018, when Key Haven applied to the state for permits to dredge and fill five of the remaining lots. The Department denied the application and, after exhausting administrative procedures, Key Haven filed an inverse condemnation claim in state court asserting a categorical taking under Lucas, arguing that denial of the permits deprived the lots of all economically beneficial use. The trial court held the claim was barred by the statute of limitations.
The court of appeal affirmed.
What do you mean we’re too late, the owner argued. Our claim wasn’t even ripe until the state denied our 2018 application. The U.S. Supreme Court still requires a “final decision” or some de facto indication that the government has fixed a position about what is and what isn’t allowed on the property. Here was a case where the owner seemed to do what Williamson County requires (submit at least one viable development application and wait for the government to deny it), but got punished for doing so.
The court acknowledged this requirement, but held that ripeness does not require the filing of a futile application where government has already reached a definitive position. According to the court, there had been no uncertainty for decades about whether these lots could be dredged and filled. The State had already ordered the work stopped in the early 1970s, and later local regulations only reinforced that prohibition:
In this case, there has been no question for decades about how Florida law and local regulations apply to Key Haven’s Tenth Addition development. A total prohibition on dredge-and-fill development has restricted development on the five Tenth Addition lots at issue here since the early 1970s. Key Haven obtained necessary government approvals in the 1960s to dredge, fill, and create these residential lots. But the State stopped their development cold in the early 1970s due to the enactment of new laws and the reversal of environmental policies affecting the Florida Keys.
Slip op. at 5.
As the court saw it, the relevant “final decision” had already occurred decades earlier, and that decision doomed the claim:
At that point in the 1970s and 1980s, no uncertainty remained as to whether state and local officials could or would permit Key Haven’s dredge-and-fill development on these five uncompleted lots. It couldn’t be done.
Id.
Because the State’s prohibition on completing the development was final by the 1970s, and certainly by the time of the 1986 comprehensive plan amendments, the court held that any takings claim ripened then. The applicable four-year limitations period therefore expired long ago. The 2018 permit application did not create a new taking; it merely sought permission to do something government had already forbidden for decades. Slip op. at 6.
The court also rejected the argument that a claim could not even accrue until at least one meaningful application had been submitted. That rule, the court explained, does not apply when prior governmental actions already provide a definitive answer. Here, the very development activity the owner sought to revive in 2018 had been halted by state authorities decades earlier. In the court’s view, that was the final decision.
A couple of thoughts.
First, this case is a reminder that owners (and their lawyers) often find themselves on the horns of dilemma. Do you file now, only to maybe get dismissed for ripeness (how many courts have ever found that submitting an application would be futile, after all? Not too many), or do you wait only to risk being deemed to be too late? The only real solace is in the fact that at least a dismissal for lack of ripeness is without prejudice to filing later when the claim becomes ripe. Thus, if the owner has scads of money, the safest approach is to file early, and often.
This one goes against the usual grain where ripeness is seen as an obstacle that postpones the filing of a takings claim, but illustrates the opposite danger: wait too long after some future court believes the government has clearly taken a final position, and the claim may expire before it’s ever filed.
Second, the court’s reasoning suggests that later permit denials will not necessarily restart the limitations clock when they merely reaffirm longstanding prohibitions already applied to a property. A fresh denial does not automatically equal a fresh taking. But why? If the state truly believed that this one was futile, shouldn’t it have refused to process the permit applications on the grounds that “we already made a decision decades ago, chumps?” Instead, “DEP denied the permits.” Slip op. at 3. And apparently remained silent while Key Haven exhausted to administrative process to finalize a futile decision. Id.
We can’t help but noting the irony where the owner argued it needed to ripen the claim, and it was the government claiming “no need to do that, you ripened it long ago” (the usual position taken by property owners in these cases). Darned if you do, darned if you don’t.
Stay tuned.