STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, APPELLANT,
v.
RAYMOND MACKAY AND IRENE MACKAY, APPELLEES
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The MacKays challenged the Department of Environmental Regulation's denial of their permit to fill submerged portions of their Key West property, claiming it constituted a taking without just compensation. The appellate court reversed the trial court's finding of a taking, holding that economically viable uses of the property remained and the MacKays had not exhausted administrative remedies by seeking a variance.
The Department's denial did not constitute a taking because economically viable uses of the property remained available to the MacKays, and they had not exhausted administrative remedies by failing to seek a variance from the City of Key West.
[1] A regulatory taking will not be established merely because an agency denies a permit for a property owner's most desirable use, or totally denies use of some portion of t…
[2] A property owner must demonstrate that a government agency's decision deprived them of all beneficial uses of their property to establish a regulatory taking.
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Establishes the legal standard for determining whether a regulatory denial constitutes a taking; requires that at least some economically viable use remain.
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Join FLexlaw to unlock all legal intelligenceThe MacKays own 3.2 acres in Key West, Florida, with 2.5 acres lying completely underneath the Key West Salt Ponds and 0.7 acre consisting of transiti…
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PER CURIAM.
Raymond and Irene MacKay own 3.2 acres of land in Key West, Florida. Two and one-half acres lie completely underneath the Key West Salt Ponds. The remaining .7 acre of land consists of transitional wetlands and uplands. In 1983, the MacKays applied to the State of Florida, Department of Environmental Regulation, [Department] for permission to fill the submerged portions of their property. The Department denied the application, and the MacKays sued, alleging that the Department had taken their property without paying just compensation, in violation of Article X, Section 6, Florida Constitution. The trial court found that the Department’s ruling precluded all economically reasonable use of the property, and thus, constituted a taking. The Department appeals. We reverse.
The MacKays have failed to show that a taking has occurred. “[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property,” Fox v. Treasure Coast Regional Planning Council, 442 So. 2d 221, 226 (Fla. 1st DCA 1983), so long as some economically viable use of the property remains. See Graham v. Estuary Prop., Inc., 399 So. 2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So. 2d 1329 (Fla. 3d DCA Apr. 18, 1989); Florida Audubon Soc’y v. Ratner, 497 So. 2d 672 (Fla. 3d DCA 1986), review denied, 508 So. 2d 15 (Fla.1987); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The MacKays have not demonstrated that the Department’s decision deprived them of all beneficial uses of their property; on the contrary, the evidence discloses that viable economic uses exist.
Furthermore, the MacKays have also failed to establish that they could not achieve their desired use of the property under a variance from the City of Key West. The evidence demonstrates that the MacKays neither applied for a building permit nor requested a variance from the zoning requirements of the city. See Bensch; MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Bd. v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981). Under these circumstances, we conclude that the trial court’s decision was, at best, premature.
Reversed and remanded.
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Taylor v. Vill. OF N. Palm Beach, 659 So. 2d 1167 (Fla. 4th DCA 1995)…351, 106 S.Ct. at 2567. Florida courts have adopted the federal ripeness policy of requiring a “final determination from the government as to the permissible uses of the property.” Glisson, 558 So. 2d at 1035-36; Department of Envtl. Reg. v. MacKay, 544 So. 2d 1065, 1066 (Fla.1989); City of Jacksonville v. Wynn, 650 So. 2d 182, 186-88 (Fla. 1st DCA 1995); Lee County v. Morales, 557 So. 2d 652 (Fla. 2d DCA), review denied, 564 So. 2d 1086 (Fla.1990). A final determination requires at least one meaningful applic…
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City OF Riviera Beach v. Shillingburg, 659 So. 2d 1174 (Fla. 4th DCA 1995)…ent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Department of Envtl. [*1183] Reg. v. Schindler, 604 So. 2d 665, 568 (Fla. 2d DCA), review denied, 613 So. 2d 8 (Fla.1992); Department of Envtl. Reg. v. MacKay, 544 So. 2d 1065 (Fla. 3d DCA 1989); Department of Transp. v. Jirik, 471 So. 2d 549 (Fla. 3d DCA 1985), decision approved, 498 So. 2d 1253 (Fla.1986); Fox v. Treasure Coast Regional Planning Council, 442 So. 2d 221 (Fla. 1st DCA 1983). In Schindler, the second dist…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Penn Cent. Transp. Co. v. NEW York City, 438 U.S. 104 (U.S. 1978)
- Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (U.S. 1985)
- Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (U.S. 1981)
- MacDonald v. Cnty. OF Yolo, 477 U.S. 340 (U.S. 1986)
- Graham v. Estuary Props., Inc., 399 So. 2d 1374 (Fla. 1981)
- Martins Ferry Hosp. Assn. v. Nat'l Labor Relations Bd., 454 U.S. 1083 (U.S. 1981)
- Schlesinger v. Schlesinger, 454 U.S. 1083 (U.S. 1981)
- FOX v. Treasure Coast Reg'l Planning Council, 442 So. 2d 221 (Fla. 1st DCA 1983)
- Fla. Audubon Soc'y v. Nat Ratner, 497 So. 2d 672 (Fla. 3d DCA 1986)
- Fred and Bonita Bensch v. Metro. Dade Cnty., 541 So. 2d 1329 (Fla. 3d DCA 1989)