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2023 AND TAKINGS, IN LAYMEN'S TERMS - A PRELUDE
2023 – How Bad is it?
For years, we have been hearing that some day Islamorada will run out of building permits. Some day is near – 2023.
What happens if there are vacant residential lots and no permits available to build homes?
Because of the limited infrastructure, all of Monroe County has unique circumstances that necessitate regulating land use and density. In 1974, all of Monroe County was designated an Area of Critical Concern to the State of Florida and with that designation came major restrictions, most particularly, limiting the number of residential dwelling units that can be built. Monroe County enacted a Rate of Growth Ordinance (ROGO) and later Islamorada enacted the Building Permit Allocation System (BPAS).
A Florida Keys Carrying Capacity Study was done, and in 2012 the county and its municipalities acknowledged that by 2023, building permits for new residential dwelling units could no longer be issued, primarily because of the volume of traffic using US One to evacuate the Keys for a hurricane.
We’ve been led to believe that the end of BPAS allocations could cost taxpayers of Islamorada hundreds of millions of dollars; that every property owner with a vacant lot in the Village has unquestionable rights to either:
- Build or
- Be paid big dollars
And the big dollars would come from local taxpayers. Or the right to build would come at the expense of our quality of life and safety: more highway congestion, more stress on our treasured and delicate environment, a need for more costly infrastructure.
What we are rarely told: there are significant laws that defend government’s ability to regulate property.
There are Florida laws that deal with property rights. Click here to read two significant laws.
The courts have typically ruled that government is not liable for a “taking” just because its regulations reduce or nearly eliminate the value of property.
Most “takings” cases have unique facts that must be considered:
- Especially in the Florida Keys, it can be documented that government’s strict development limits are imperative.
- Because of Florida’s Bert Harris Act, landowners who purchased after the 1993 implementation of the strict development limitations, ROGO and then BPAS, may have significantly diminished claims.
- There may be local, State or Federal land acquisition possibilities aimed at protecting and preserving unique conservation lands, and thus provide land value to property owners.
- Single ownership of multiple lots reduces ‘‘takings’’ liability, as accessory uses are often possible.
The critical conditions facing the Florida Keys – evacuation challenges, rising seas, the prohibitive costs of infrastructure improvements (water, wastewater, schools, medical facilities, roads), environmental damage, will all impact our lives and are reason for the courts to defend the government and the limitations established. We cannot just keep growing our numbers and our problems.
The courts have demonstrated that they understand the need to protect government regulations.
Click here to read an Executive Summary of the takings issue written by Richard Grosso, a lawyer and a full-time Professor of Law at the Shepard Broad College of Law at Nova Southeastern University in Ft. Lauderdale, Florida, where he teaches in the areas of administrative, environmental, energy, land use, appellate practice and federal and state constitutional law.
Click here to read more about Richard Grosso.
Click here to see the statistics regarding vacant properties in Islamorada.
Click here for suggestions to reduce the impact of potential takings.
