Lawsuits over 'takings' under coming Keys building ban could leave local communities on hook for half liability

By John Breslin | Mar 11, 2019

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TALLAHASSEE -- A move by Florida state lawmakers to leave local governments on the hook for half of the liability from all lawsuits that could follow the end of new building permits for the Florida Keys "seems like yet another example" of a consistent pattern of the state attempting to shift lawsuit costs to local governments, a consumer advocate says.

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.

It is estimated Monroe County has approximately 10,000 undeveloped lots that are worth a total of $318 million. Under the "takings" principle, property owners, if successful when suing the state, are eligible for the fair market at the time the "taking," and attorney fees.

Brad Ashwell, legislative director of the Florida Alliance for Consumer Protection, said his organization has no particular expertise on the "takings" issue, and cannot speak on the customary division of liability. But he added that "there’s been a consistent pattern of the state shifting costs to local governments while seeking to limit their power in various ways."

"The preemption bills filed each session in recent years are one example," Ashwell told the Florida Record. "They’ve been far reaching, to say the least. This attempt to shift liability to the locals seems like yet another example of that pattern.

"While this is going to affect a lot of property owners and lawmakers, the mandate is a good thing for consumers on the insurance front. Development in sensitive and hurricane-prone areas has impacts to insurance rates for consumers across the state."

Local officials on the Florida Keys are upset over the bill splitting liability for the costs of lawsuits expected ahead of, and after, the end of issuing of permits in the area.

They also argue that Monroe County failed to consult with them while drafting a bill that will split liability 50-50 between the local and state governments.

“ROGO was forced upon us [by the state], so why do we have any liability at all,” Councilwoman Cheryl Meads said during a recent Islamorada Village Council meeting, according to a report in the Miami Herald. “Why aren’t they paying 100 percent of it?”

Councilman Mike Forster said he’s angry because neither he nor his colleagues on the board were asked for their opinion or input before the language of the bill was written, according to the same report.

The bill will codify what has already been happening for about 15 years, Monroe County attorney Bob Shillinger told the Florida Record.

Lawsuits on the "takings" principle, filed by property owners under the Fifth Amendment, are expected. But Shillnger said the county and state have already defended suits over claims the mandate is too restrictive.

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

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