Court Upholds Growth Control in Florida Keys

Tue January 20, 2004 - Southeast Edition

MIAMI (AP) An appeals court sided with growth-control advocates Dec. 10 when it threw out a ruling that could have opened the door to large-scale development of thousands of Florida Keys’ house lots carved up since the 1920s.

The 3rd District Court of Appeals endorsed measures adopted in the last two decades to add environmental and infrastructure issues to the mix when considering residential construction in the sensitive island chain.

The decision means the difference between building 200 houses a year and potentially letting 15,000 go up, said attorney Richard Grosso, who argued the appeal for environmental groups.

Grosso of Nova Southeastern University’s Environmental and Land Use Law Center said the ruling also means that thousands of lots in the Keys will have to be developed according to modern rules.

“This is judicial affirmation of the fact that we can regulate growth,” he said.

A three-judge panel of the state appeals court said in an unsigned opinion that it would be “unconscionable to allow the landowners to ignore evolving and existing land use regulations” if they took no steps to develop their land before 1986.

The court recognized a 1997 state law guaranteeing compensation to landowners whose property rights are “practically useless” but concluded ownership alone does not carry the right to develop a single-family home.

Landowners “acted at their own peril” if they did nothing to pursue construction between the Legislature’s designation of the Keys as “an area of critical state concern” in 1972 and the first land use controls imposed in 1986, the court said. Other restrictive plans and rules have been adopted since.

Regulations were imposed to preserve “our most precious lands” and protect the environment, the court said.

“It is an endorsement of that policy over the notion that merely recording a [lot plan] who knows how many years ago trumps 20 years of regulation,” said Edward Guedes, attorney for the Keys communities of Marathon and Islamorada.

But James Burling, an attorney for Pacific Legal Foundation, which supported landowners challenging Keys protections, said he was disappointed with the ruling.

“It’s too soon to write the final obituary of land development in the Keys, but land owners have another nail driven into their coffin with this decision,” Burling said.

The group’s Web site said it considers Florida a major battleground in the fight to preserve property rights against government restrictions.

The state Department of Community Affairs, Monroe County, Keys communities and environmental groups united in defense of the regulations.

Janet Bowman, attorney for 1,000 Friends of Florida, a growth management advocacy group, and county attorney Karen Cabanas both praised the ruling.

For the most part, the Keys are a hodgepodge of disjointed development along a 100-mi. stretch of mostly two-lane roads and bridges connecting islands from Key West to Key Largo. Surrounding waters and coral reefs are protected by the Florida Keys National Marine Sanctuary, and Everglades National Park sits to the north.

Gov. Jeb Bush and the Cabinet were to receive a report on Monroe County’s compliance with controls on building permits, wastewater treatment and elimination of septic tanks, a significant water polluter.

“There was basically an ecosystem at stake,” Grosso said. “There was everything at stake here, and it is just a huge victory for the people of the Keys and state and local government.”