Richard Grosso, Esq.

Analysis of Property Rights Issues and the Limited Growth System in the Florida Keys

Executive Summary March 1, 2021

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Local governments enjoy much greater ability to protect the public under both constitutional and statutory (Harris Act) property rights doctrines than is commonly understood. Governmental defenses against such claims are numerous and strong, as evidenced by several major “takings” decisions won by governments in the Keys. “Takings” law is applied on a case by case basis. There is no hard and fast rule that the prohibition of construction or a substantial reduction in uses and value is a “taking,” which occurs only when government “goes too far,” by forcing an individual landowner to bear public burdens which, in all fairness should be borne by the public as a whole” or when regulation precludes all “economically beneficial use” of property.

The compelling reason for the strict development limits in the Keys is very strong takings defenses. They exist due to the paramount importance of preventing deaths during and after a hurricane by ensuring the ability to evacuate the population in 24 hours, a figure derived from hurricane and evacuation experts. The reality facing local governments in the Keys: rising seas, more frequent and intense hurricanes, and the resulting financial liability for protecting

buildings, infrastructure and people and for post-disaster relief, the prohibitive costs of massive infrastructure improvements, and ecological fragility are important defenses to “claims."

Landowners who purchased their land after the ROGO/ BPAS were enacted in 1992 would have difficulty proving a violation of property rights, which protect “reasonable, investment-backed expectations and vested rights, and do not require compensation for strict regulations that existed when the land was acquired. The overwhelming number of vacant lots in the Keys were bought with knowledge of the ROGO/ BPAS limits.

Landowners who bought their land prior to ROGO are not necessarily due compensation if they cannot develop. An owner cannot hold vacant land for many years without affirmatively seeking development approval while regulation increases, and then expect courts to hold them harmless from those regulations. An increasingly stringent regulatory regime, required by state law, has applied to all undeveloped lands in the Keys since the 1970s, as public awareness of hurricane vulnerability and evacuation limits, the growing impacts of sea level rise and other realities of development, has increased.

Next, even if land cannot be built on, it may still have value as a result of potential non-permanent or minor construction, a ROGO/BPAS aggregation or dedication point or other use, such as passive recreation, mariculture and aquaculture, beekeeping, working waterfront, conservation land for which there is a land acquisition market. Landowners who took no concrete steps to develop or avail themselves of these options or others, such as land acquisition, or TDRs, bear a strong burden to prove their land has been taken. Judicial approval of lot aggregation/ combination requirements to protect highly sensitive resources can reduce, perhaps substantially, the “takings” liability of Keys’ local governments.

Florida’s Harris Act which applies only to regulations enacted after its 1995 adoption, does not apply to the ROGO/ BPAS growth caps, which were enacted in 1992. To the extent the Harris Act will apply to regulation in the Keys, a landowner must meet the heavy burden of proving the regulation “inordinately burdens” the property. Over 25 years, the Florida appellate courts have only confirmed one Harris Act violation. Even in those rare situations where an owner could prove an inordinate burden, it must give the local governments the opportunity to grant a waiver or purchase the land to avoid a compensation judgment. Local governments need not loosen necessary valid restrictions out of fear of Harris Act liability; they can do so only if and when necessary, where a specific landowner, based on specific facts, can prove an inordinate burden.

Any liability on the “takings” side of the ledger must be considered in the context of the enormous price tag that governments in the Keys face to support development. Also, increasing “ROGO” or “BPAS” allocations could actually undermine the legal basis for local governments in the Keys to defend property rights suits, by undermining the factual bases and legal integrity for the development limits that have been applied to all landowners for almost 30 years.