Monroe County attorney: County seeking to limit damages from coming Keys building ban suits

By John Breslin | Mar 11, 2019

County executives in the Florida Keys are estimating the total value of vacant lots in the area at more than $300 million as they prepare for a flurry of lawsuits expected to be filed ahead of, and after, 2023 when building permits will no longer be issued.

But that amount does not include attorneys' fees, according to Monroe County Attorney Bob Shillinger, who, with others, crafted a plan to limit local liability from the suits, which are expected based on the "takings" principle in which property owners sue for compensation under the 5th Amendment.

County attorneys drafted a bill, filed by Rep. Thad Altman (R-Brevard County), that would split liability 50-50 between the state and local governments if a property owner wins such cases.

The bill will codify what has been already happening for some 15 years, Shillinger told the Florida Record.

Under a 1970s state mandate, building is restricted on the Keys, and permits will run out entirely in 2023. The mandate, the Rate of Growth Ordinance (ROGO), was introduced for environmental and public safety reasons, the latter to limit the number of people needed to be evacuated during hurricanes.

Lawsuits on the "takings" principle are expected, but Shillnger said the county and state have already defended suits over claims the mandate is too restrictive.

Initially, the county defended suits on its own, but later came to an agreement with the state to split the cost 50-50, he said.

"We have had some success defending suits, but not completely," Shillinger said. "We are facing a couple of judgments, two of which are on appeal."

It is estimated Monroe County has approximately 10,000 undeveloped lots, which are worth in total of $318 million. Under the "takings" principle, property owners, if successful in their suit, are eligible for the fair market at the time the "taking," and attorneys' fees.

The bill dividing liability has upset some local officials who argue that they were not consulted prior to its drafting and filing.

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