IN THE SUPREME COURT OF FLORIDA Case No. SC MONROE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, PETITIONER, VS.

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1 Electronically Filed 06/03/ :07:50 PM ET RECEIVED, 6/3/ :38:45, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No. SC RESPONSE TO PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE THIRD DISTRICT COURT OF APPEAL, THIRD DISTRICT CASE NO. 3D MONROE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, PETITIONER, VS. GALLEON BAY CORPORATION, A FLORIDA CORPORATION, RESPONDENT. RESPONDENT GALLEON BAY S BRIEF ON JURISDICTION James S. Mattson, Esq. Florida Bar No Co-Counsel for Landowner P. O. Box 586 Key Largo, FL (305) Andrew M. Tobin, Esq. Florida Bar No Co-Counsel for Landowner P.O. Box 620 Tavernier, FL (305) June 3, 2013

2 I. STATEMENT OF THE CASE AND THE FACTS...1 II. ARGUMENT...2 A. The Third District Court of Appeal s decision does not conflict with the parcel as a whole doctrine...2 (1) Graham v. Estuary Properties, 399 So. 2d 1374 (Fla. 1981), Department of Transportation v. Jirik, 498 So. 2d 1253 (Fla. 1986), Fla. Game & Freshwater Fish Comm n v. Flotilla, 636 So. 2d 761 (Fla. 2 nd DCA 1994), Florida Dept. Envtl. Regulation v. Schindler, 604 So. 2d 565 (Fla. 2d DCA 1992); City of Riviera Beach v. Taylor, 659 So. 2d 1174 (Fla. 4 th DCA 1995); Zupnick Haverland, LLC v. Current Builders of Florida, 7 So. 3d 1132 (Fla. 4 th DCA 2009); Gardens Country Club v. Palm Beach County, 712 So. 2d 398 (4 th DCA 1998); and Dept. of Environmental Protection v. Burgess, 772 So. 2d 540 (Fla. 1 st DCA 2000)...3 B. Respondent Declines to Respond to the Negative Attacks on the Third District Court of Appeal as Being Beneath the Dignity of said Court..8 i

3 TABLE OF AUTHORITIES CASES City of Riviera Beach v. Taylor, 659 So. 2d 1174 (Fla. 4 th DCA 1995)... 2, 3, 5 Department of Transportation v. Jirik, 498 So. 2d 1253 (Fla. 1986)... 2, 3, 7 Dept. of Environmental Protection v. Burgess, 772 So. 2d 540 (Fla. 1 st DCA 2000)... 2, 3, 7 Dept. of Envtl. Reg. v. Schindler, 604 So. 2d 565 (Fla. 2d DCA), rev. denied, 613 So. 2d 8 (Fla. 1992)...6 Fla. Game & Freshwater Fish Comm n v. Flotilla, 636 So. 2d 761 (Fla. 2 nd DCA 1994)... 2, 3, 5 Florida Dept. Envtl. Regulation v. Schindler, 604 So. 2d 565 (Fla. 2d DCA 1992)... 2, 3, 5 Fox v. Treasure Coast Reg. Planning Council, 442 So. 2d 221 (Fla. 1 st DCA 1983)...6 Galleon Bay Corporation vs. Board of County Commissioners of Monroe County and the State of Florida, 105 So. 3d 555 (Fla. 3d DCA 2012)...2 Gardens Country Club v. Palm Beach County, 712 So. 2d 398 (4 th DCA 1998)... 2, 3, 6 Graham v. Estuary Properties, 399 So. 2d 1374 (Fla. 1981)...2, 3 Monroe County, et al. v. Galleon Bay Corporation, 876 So. 2d 569 (Fla. 3d DCA 2004)...1 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)...6 State of Florida & Board of County Commissioners of Monroe County v. Galleon Bay Corporation, 930 So. 2d 627 (Fla. 3d DCA 2006)...1 State v. Bd. of County Commissioners of Monroe County, 908 So. 2d 569 (Fla. 3d DCA 2004)...1 ii

4 Zupnick Haverland, LLC v. Current Builders of Florida, 7 So. 3d 1132 (Fla. 4 th DCA 2009)... 2, 3, 6 iii

5 I. STATEMENT OF THE CASE AND THE FACTS As the District Court of Appeal s opinion notes, this is the seventh time Galleon Bay has been before the Third DCA since In November 2002, Monroe County sought review of now-retired Judge Richard Payne s Final Judgment Granting Writ of Certiorari. The District Court denied review in June Monroe County served a third-party complaint on the State of Florida, which filed two petitions with the Third DCA. The State ultimately withdrew its petitions and appeared in Monroe County. 2 On January 30, 2006, Circuit Judge Richard Payne rendered a Summary Judgment on Liability, in favor of Galleon Bay, and a jury trial on compensation was had on June 3 to 12, Due to the government s appraiser s last minute change of his appraisal, Galleon Bay requested a new trial order, which was granted. Monroe County and the State sought a writ of prohibition from the Third DCA to prevent the new compensation trial, which writ was denied in April Judge Payne had retired at the end of His successor, Circuit Judge David Audlin instead of conducting a new trial on damages as contemplated by 1 Monroe County, et al. v. Galleon Bay Corporation, 876 So. 2d 569 (Fla. 3d DCA 2004). 2 State v. Bd. of County Commissioners of Monroe County, 908 So. 2d 569 (Fla. 3d DCA 2004). 3 State of Florida & Board of County Commissioners of Monroe County v. Galleon Bay Corporation, 930 So. 2d 627 (Fla. 3d DCA 2006). 1

6 his predecessor and the Third District Court of Appeal 4 vacated Judge Payne s liability order. That sent the entire case back to square one. 5 Galleon Bay subsequently moved to disqualify Judge Audlin, and this case eventually ended up in the hands of Circuit Judge Mark Jones, who rendered a decision on April 27, 2011, adverse to Galleon Bay. Judge Mark Jones decision was subsequently reversed by the Third District Court of Appeal on December 5, II. ARGUMENT A. The Third District Court of Appeal s decision does not conflict with the parcel as a whole doctrine. Monroe County s Jurisdictional Brief purports to find express and direct conflicts with the Third District Court of Appeal s December 5, 2012, decision in Galleon Bay Corporation vs. Board of County Commissioners of Monroe County and the State of Florida, 105 So. 3d 555 (Fla. 3d DCA 2012). Monroe County purports to find conflicts between the case at bar which has no wetland or endangered species issues and several decisions that Monroe County purports to create conflicts. Galleon Bay has reviewed the County s alleged conflict arguments in the order presented by the County. 4 See the December 5, 2012, decision of the Third District Court of Appeal, attached to Petitioner s Jurisdictional Brief at p. 16, or the published versions at 105 So. 3d 555; 2012 Fla. App. LEXIS 20864; 37 Fla. L. Weekly D Ibid. 2

7 (1) Graham v. Estuary Properties, 399 So. 2d 1374 (Fla. 1981), Department of Transportation v. Jirik, 498 So. 2d 1253 (Fla. 1986), Fla. Game & Freshwater Fish Comm n v. Flotilla, 636 So. 2d 761 (Fla. 2 nd DCA 1994), Florida Dept. Envtl. Regulation v. Schindler, 604 So. 2d 565 (Fla. 2d DCA 1992); City of Riviera Beach v. Taylor, 659 So. 2d 1174 (Fla. 4 th DCA 1995); Zupnick Haverland, LLC v. Current Builders of Florida, 7 So. 3d 1132 (Fla. 4 th DCA 2009); Gardens Country Club v. Palm Beach County, 712 So. 2d 398 (4 th DCA 1998); and Dept. of Environmental Protection v. Burgess, 772 So. 2d 540 (Fla. 1 st DCA 2000). Graham v. Estuary Properties, supra, involved a proposed major private development to be created primarily in undevelopable wetlands. In fact, only 526 of the total 6,500 acres were dry enough to be classified as non-wetlands. 399 So. 2d at Though Florida s wetland protections were not as advanced as the Federal Water Pollution Control Act(s) (FWPCA) adopted by Congress in 1972 and 1977, any efforts to discharge fill into coastal and riverine wetlands after 1972 would have required a permit from the U.S. Army Corps of Engineers, pursuant to Section 404 of the FWPCA. Petitioner s reliance on Department of Transportation v. Jirik, supra, is difficult to fathom. Jirik stands for the proposition that a landowner need not merge adjacent lots when access to one or more lots is extinguished by a government entity. But rather the public body that created the problem must restore 3

8 access to all of the affected lots, 6 condemn the affected lots, or otherwise compensate the owner. Petitioner seems to perceive some kind of conflict between Graham and Jirik and the case at bar Galleon Bay that is somehow related to the fact that the Schleu family had interests in two subdivisions platted in 1969 (Bahia Shores) and 1970 (Dolphin Harbour). 7 What is clear is that the trial judge erroneously consolidated the Bahia Shores and Dolphin Harbour subdivisions, completed in 1969 and 1970, with the Galleon Bay Subdivision that was rezoned Commercial Fishing Village in 1986 sixteen years after the Dolphin Harbour and Bahia Shores subdivisions were completed. 8 In 1990, Galleon Bay submitted a plat application to Monroe County that would have permitted 42 lots. 9 After negotiating with Monroe County, Galleon Bay reduced the number of lots to 14 (thereby increasing the sizes of the lots), and setting aside substantial areas for open space Jirik involved three platted lots in the unincorporated Florida Keys, where the Florida Department of Transportation in constructing a bridge eliminated the access to two of the three lots. 7 See p. 4 of the Third DCA s decision. 8 Id. 9 Id., p. 5, fn. 5. According to the County Code, Galleon Bay could have established 82 residential lots on the property. 10 Id., at

9 Monroe County also cites to Florida Game & Freshwater Fish Commission v. Flotilla, supra. Flotilla involved a bald eagle 11 nest that prevented the developer from developing a 750-foot setback while an eagle was in the nest. The advice to the developer: wait until the eagles move on (which they apparently do, in due course). It remains unclear what the purpose of this information has to do with the Galleon Bay case. Monroe County also cites to Florida Dept. Envtl. Regulation v. Schindler, supra. Schindler was an owner of two oceanfront parcels. One parcel (1.65 acre) was above mean high water, and suitable for construction of a residence. The other parcel (1.85 acre), abutting the upland parcel, was below mean high water and was not suitable for development. The 2 nd DCA held that the two parcels were, and always had been, treated as one. It also concluded that there were potential waterbased uses, such as a boardwalk, walkway, gazebo, fishing pier, and perhaps boating slips. 12 How this is relevant to Galleon Bay remains a mystery. City of Riviera Beach v. Taylor, supra, is cited by Petitioner with the following quote: [A] proper analysis of a takings claim requires consideration of the subject property in its entirety. The Taylor decision or rather the lack of a 11 A federally endangered species. 12 Schindler, at

10 decision 13 includes references to Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), Dept. of Envtl. Reg. v. Schindler, 604 So. 2d 565, 560 (Fla. 2d DCA), rev. denied, 613 So. 2d 8 (Fla. 1992), Dept. of Envtl. Reg. v. MacKay, 544 So. 2d 1065 (Fla. 3d DCA 1989), Dept. Transp. v. Jirik, 471 So. 2d 549 (Fla. 3d DCA 1985), decision approved, 498 So. 2d 1253 (Fla. 1986); [and] Fox v. Treasure Coast Reg. Planning Council, 442 So. 2d 221 (Fla. 1 st DCA 1983). 14 Zupnick Haverland, LLC v. Current Builders of Florida, supra, and Gardens Country Club v. Palm Beach County, supra, are cited by Petitioner, quoting:... a lower court s factual determination during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to consider an abuse of discretion. 15 From a practical point of view, appellate courts would have no function in our legal system if the County s apparent argument was an actual rule. In reality as in the case at bar there is nothing to prevent an appellate court from deciding, as it did in this case, that the trial court s determination is unsupported by competent and substantial evidence, or by an abuse of discretion. 13 In conclusion, the 4 th DCA stated: We remand landowners as-applied claims with directions to the trial court to dismiss these claims as not being ripe for judicial review. 14 Fox v. Treasure Coast Regional Planning Council, 442 So. 2d 221 (Fla. 1 st DCA 1983), does not appear in Petitioner s Table of Authorities. The citation given, 442 So. 2d 221 (Fla. 1 st DCA 1983), is to a one paragraph motion that has nothing to do with Monroe County s Brief. 15 Zupnik at 1134; and Gardens Country Club at

11 Petitioner again raises Jirik, 498 So. 2d 1253 (Fla. 1986) claiming that the Third District Court of Appeal: erroneously found that Jirik prohibited the trial court from considering whether some of the subject lots could be aggregated to obtain ROGO allocations to achieve an economically viable use of the property. At p. 5 of Petitioner s Brief, it would appear that Monroe County raises yet another issue with the Third DCA s opinion, as follows. Contrary to the Third District s decision, the relevant issue in the liability trial was not whether Galleon Bay could achieve its expectation of building one house on each of the platted lots or any other vested or particular use. It is not clear what points Petitioner is seeking to make, but it appears to be an attack on the Third District Court of Appeal s judges for doing their job. Petitioner invokes Dept. Environ. Protection v. Burgess, supra, for the proposition that whether the landowner has been denied all, or substantially all, economically viable use of his land, which would result in a regulatory taking. This is a quizzical comment in light of the fact that Galleon Bay Corporation had expended $578,670 by April 27, 1998, to develop, permit, and sell the subject lots. 17 This is light-years away from Mr. Burgess rickety dock that he had ignored for 30 years. 16 See p. 4 of Petitioner s Brief. 17 See the December 5, 2012, decision of the Third District Court of Appeal, attached to Petitioner s Brief. 7

12 B. Respondent Declines to Respond to the Negative Attacks on the Third District Court of Appeal as Being Beneath the Dignity of said Court. The Third District Court of Appeal rendered a thorough, and detailed, 26- page opinion on December 5, The five pages of negative attacks by opposing counsel are not worthy of comment. Respondent shall rely on the District Court s opinion, with particular attention to the Analysis section on pages It would be very difficult to compress ten well thought-out, and detailed, pages into a three page summary. For the reasons set forth above, Respondent suggests that the Supreme Court deny review. Submitted this 3 rd day of June James S. Mattson, Esq. Andrew M. Tobin, Esq. Florida Bar No Florida Bar No Co-Counsel for Appellant Co-Counsel for Appellant Post Office Box Post Office Box 620 Key Largo, FL Tavernier, FL (305) (305) CERTIFICATE OF SERVICE I certify that on this 3 rd day of June 2013, a true copy of the above Jurisdictional Brief was sent by electronic mail to Derek V. Howard, Esq., th Street Ste 408, Key West FL and Thomas G. Pelham, 1474 Constitution Pl. E., Tallahassee, FL 32308, and to the Florida Supreme Court by e-filing. 8

13 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief was prepared in Times New Roman 14- point font, and complies with the font requirement of Rule 9.210(a)(2), Fla. R. App. P. 1