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Government preparing to be sued in 2023, when the Keys stop issuing building permits

Worries about fast evacuations from the Keys as a hurricane approaches were a key reason the state acted to restrict development in the Keys in 1972. Now, a provision that kicks in in 2023 has prompted legislation preparing for expected lawsuits by property owners.
Worries about fast evacuations from the Keys as a hurricane approaches were a key reason the state acted to restrict development in the Keys in 1972. Now, a provision that kicks in in 2023 has prompted legislation preparing for expected lawsuits by property owners. AP

Starting in 2023, no new building permits will be issued in the Florida Keys, a stipulation of a 1970s state mandate aimed at controlling development in the environmentally sensitive archipelago and ensuring timely evacuation of tourists and residents in the path of hurricanes.

Monroe County has between 6,000 and 10,000 undeveloped lots, another result of the state’s 1972 classification of the Keys as an “area of critical state concern.” People who own those properties are likely to sue Florida when they either can’t build what they want on their land or don’t receive what they consider fair compensation from the state.

With Florida facing potentially billions of dollars in so-called “takings” lawsuits in 2023, a bill was filed in the Legislature this week that would make counties and municipalities equally as liable as the state if the property owners win.

The bill was crafted by Monroe County attorneys, which upset some officials in incorporated municipalities who said they were left out of the process, but it was done with the intention of codifying current practice and to cap exposure, said County Attorney Bob Shillinger.

“We’ve jointly defended these cases with the state for the last decade and a half with the understanding it would be a 50/50 apportionment at the end of the day,” Shillinger said Friday. “It’s not something we just made up.”

Shillinger said the proposed law is intended to avoid the types of complications that resulted from the citrus canker lawsuits of the early 2000s. The Florida Department of Agriculture and Consumer Services destroyed fruit trees on thousands of properties throughout the state to prevent the citrus canker tree disease from spreading. Affected landowners sued, and while many have been awarded money in court, the state has yet to pay them, while the portion counties and municipalities agreed to pay gets larger because interest is accruing.

“Our goal is to cap our liability to half,” Shillinger said.

Takings cases, Shillinger said, are typically three-step processes. First, there is a court trial to determine if a regulatory taking has occurred, in which the government has taken private land without just compensation. The case then moves on to a jury, which will decide the value of the property at the time of the taking, Shillinger said. Finally, lawyers must divide liability between the state and local government.

The bill filed this week by state Rep. Thad Altman, R-Brevard County, is aimed at removing the third step in anticipation of litigation resulting from the 2023 deadline, Shillinger said.

“The bill eliminates that last step, automatically assigning apportionment to 50/50,” said Shillinger.

Still, local officials and politicians are angry their coffers will be tapped to pay for lawsuits that result from a state mandate that will be more than 40 years old. Because the Keys were designated an area of critical state concern, development there is regulated by a law called the Rate of Growth Ordinance, known as ROGO, which requires property owners to go through a myriad of steps that can take decades before they can build.

Many of the thousands of people who have not built on their land haven’t done so because they are mired in the ROGO process, critics of the policy say.

“ROGO was forced upon us [by the state], so why do we have any liability at all,” Councilwoman Cheryl Meads said Thursday night during an Islamorada Village Council meeting. “Why aren’t they paying 100 percent of it?”

Drone footage shows the aftermath of Hurricane Irma in the Florida Keys on Wednesday, Sept. 13, 2017.

Village attorney Roget Bryan explained that while the ROGO process “was pushed upon us,” the village, county or any other municipality where the impacted land is located is the “implementing authority” of the policy and just as liable as the state.

“If you’re an affected property owner in an area of critical state concern, and there’s a rule that’s been mandated, and someone challenges that, your first step is to seek relief against the local government,” Bryan said. “But then we join the state as a party because it’s also the state’s rule.”

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

The county “went in on it alone,” Forster said.

Councilman Jim Mooney used more forceful language.

“The county back-doored us. They should have said ‘let’s have a pow wow right now,’” he said. “They threw the baby out with the bathwater, and now you can’t trust them.”

But while Shillinger said the county “could have done it better” in terms of detailing the step-by-step process of writing the bill, the county’s intentions regarding the proposed legislation have been clear for months, and it has been publicly discussed several times, he said.

“These efforts weren’t enough to put it on their radar screen,” Shillinger said.

State Rep. Holly Raschein, R-Key Largo, also came in for criticism from the Islamorada council members Thursday for not telling them about the bill, but she defended herself Friday, saying she publicly discussed it during a recent community legislative update she hosted with her state Senate counterpart, Anitere Flores.

Still, Raschein said the county must do a better job of including local officials in the process or else the bill will have little chance of passing. Action is needed with the 2023 deadline on the horizon, she said.

“It’s not a crisis until it’s a crisis,” Raschein said.

David Goodhue covers the Florida Keys and South Florida for FLKeysNews.com and the Miami Herald. Before joining the Herald, he covered Congress, the Environmental Protection Agency and the Department of Energy in Washington, D.C. He is a graduate of the University of Delaware.


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