MARATHON – The Pacific Legal Foundation (PLF) has asked the Florida Supreme Court to review a regulatory undertakings case that pits the owners of a small island in the Florida Keys against the town that allegedly took jurisdiction over the property nearly three decades after it was purchased.
“We feel strongly about defending this case because the facts are outrageous,” Mark Miller, managing attorney for PLF’s Atlantic Center, told the Florida Record.
The property owners at the center of Ganson v. City of Marathon were Gordon and Molly Beyer. The couple purchased nine-acre Bamboo Key in the 1970s as an investment with plans to retire there. The Beyers’ children, Hugh and Teresa, have since inherited Bamboo Key from their parents and are continuing the legal battle that the elder Beyers began.
The island was under the purview of Monroe County when the Beyers purchased it. Zoning regulations at that time allowed nine homes to be constructed there. However, those regulations changed over the years. In 1997, the island was officially classified as a “bird rookery.”
“Most American families would not consider this a beneficial use for their property, property which they had to buy with hard-earned cash and that the government now wants to take for free,” Miller said.
The city of Marathon took jurisdiction of the island in 1999 and joined forces with the county to prohibit the Beyers from building on their island.
With the new regulations came the restriction that only permitted temporary camping on Bamboo Key, instead of the originally planned home construction.
Because the Beyers received “points” as a form of transferrable development rights under the city’s residential rate of growth ordinance (ROGO), Miller said the government argued that it was allowed to take away the Beyers’ property without paying for it.
"(The points) in theory can be used to obtain building permits for other parcels of land that the Beyers do not own," Miller said.
In 2013, the Third District Court of Appeal found that the Beyers’ economic expectations for their property were reasonably met because the family can still use Bamboo Key for camping and because the government valued the ROGO points at $150,000. As a result, the court granted the government’s motion for summary judgment.
Miller said that, from the government’s perspective, the Beyers left the island vacant for more than 20 years, and they had no “distinct investment-backed expectations for the property.”
“Fortunately for the Beyers, the Fifth Amendment provides that the government cannot take private property for public use without just compensation,” Miller said. “In our eyes, it is unfair for the courts to deny the Beyers a jury trial without hearing the facts of their case and the constitutional rights at stake, and, without a chance for just compensation, this case truly seems to be for the birds.”
Miller said the Beyers paid $70,000 for the property in 1970 and an appraiser said the island was worth just $900 as a bird rookery.
“If they could develop it, the property is worth millions of dollars,” Miller said. “As a bird rookery, it’s not even worth $1,000. The loss is basically a total loss, either way you slice it.”
Miller said the government engaged in an unconstitutional taking of the Beyers’ property in this case.
“Monroe County and the city of Marathon took a valuable property, turned it into a bird rookery as a form of public use, but then refused to pay just compensation – money – to the Beyers for that taking,” he said. “That violates the Fifth Amendment’s just compensation clause – making it an unconstitutional takings case.”
If the Florida Supreme Court refuses to hear the case, Miller said PLF would then take it to the Supreme Court of the United States.
When reached for comment, Marathon city attorney David Migut said “The City of Marathon does not comment on pending litigation.”