LANDUSE
Re: The Reahard Property taking case Reahard vs Lee County, Florida
This case began when the Reahard family purchased 600 acres of land in Lee County in 1944. The Reahard's began subdividing and selling parcels from this track immediately and later in 1956 separated out a parcel of about 120 acres for development into individual home sites of 60 ft. by 125 ft or larger. They constructed roadways ,canals and filled lots and in 1960 recorded in the public records of Lee county a formal plat of the subdivision now known as Imperial Shores (OR Book 53 pp 128-132). Development and sale of lots continued unabated until 1972 when the CLEAN WATERS ACT resulted in the need to obtain permits from the Corp of Engineers USA. Development was slowed as a result of these requirements but not stopped until l982 when the cost of obtaining permits from the COE and the State of Florida exceeded the financial abilities of the Reahards. There remained at that time 126 undeveloped residential lots and an undeveloped MARINA SITE of 2.5 acres.
The Reahards were offered at that time 1.2 million dollars by another developer for the remaining undeveloped 40 acres this was refused because of certain conditions in the contract. Then in 1984 before the Reahards were financially able to reapply for permits LEE COUNTY passed a comprehensive land use plan which took their development rights (if you prefer their known planned use of their land) away and in return issued an order allowing development of ONE RESIDENTIAL LOT on the 40 acres. In effect turning a 1.5 million DOLLAR forty acres piece of real estate into a 40 thousand dollar lot. This parcel has about 800 ft. of paved road frontage and about one mile of river and bay frontage.
This case was file in State Court by the Reahards in l989 and Lee County requested that the court transfer the case to Federal Court. The case was transferred and was tried before a Federal Magistrate in November l990. The magistrate ruled on the basis of all the evidence presented that Lee County had in effect by their actions taken the Reahard property. The magistrate further order that a jury trial be held to determine the amount owed the Reahards for the taking of their property. That trial was held in May 1991 and the jury found that Lee County owed the Reahards $700,000 as a result of their actions.
Lee County appealed the case to the 11th circuit court of appeals and the appeals court found that the Trial Magistrate had not done a proper analysis for his order (off the wall) and remanded the case for further proceedings. The magistrate amended his original order and reinstated the jury verdict. Lee county again appealed to the 11th circuit this time the court panel ruled that the case was not ripe when tried in the Federal Court and should have been tried in the State Court it was removed from at Lee County's request. (Lee County's mistake not the Reahards).... This ruling completely ignores previous federal circuit rulings and treats real estate holding differently from all other private property.
The Reahards requested the US Supreme Ct to accept cert and over- turn this clearly wrongful ruling by the 11 th Circuit. The Court refused without comment in April 1995. This in effect sends the case back to State Court were it will be retried and the facts not having changed the Reahards will win again. Lee County will continue to violate the Reahards constitutional rights for another 6 or 7 years of legal mumbo jumbo. The Reahards need your help and support (understand it is your constitutional rights as well) Write your congressman or woman in support of the Reahards and in support of strong legislation protecting your property rights at local, state, and federal levels.
Nancie G. Marzulla, President and Chief attorney for The Defenders of Property Rights handled the petition for cert. They can be contacted at 1 (202) 686 4197 in Washington, DC or at http://www.defendersproprights.org/
UPDATE 1997
At a Trial held in the Lee County Circuit Court with Judge R Wallace Pack presiding this case was re tried beginning on the 13th of February with the closing arguments on Thursday February 20th. At the conclusion of the closing arguments the Judge issued a ruling that Lee County by their enactment of the 1984 Lee Plans had in fact taken the Reahard's
property. He further ordered that a jury trial be held beginning on the 25th of February 1997 to determine the value of the property taken.
Lee County's attorney John Renner’s argument was that the Reahards were only entitled to the property rights that had been granted to them by Lee County's Government and since they had no previous approval, permits, acceptance or other official recognition by Lee County they therefore had NO PROPERTY RIGHTS. If you that do not understand this argument it means that we are now governed by a group of non-elected bureaucrats who think the God given rights of
free human beings only exist if they have government approval..
Talk about unconstitutional government
The Jury Trial was completed on the 26th and the verdict published was for a value of $600,000 on the date of taking 21 Dec 84 thus amounting to an award of $1,416,000 counting the interest.
On June the 6th a hearing was held to set attorney's fees and costs the judge ruled that Lee County must pay $455,000 of the Reahard's attorney's fees and $100,000 in costs. Therefore Lee County owes the Reahard's and their attorney a total of $1,971,000 and the interest is running at $600/day
January 5, 1998
The appeal was heard before the 2nd circuit court of appeals today. Lee County's Attorney stated once again that LEE COUNTY had given the Reahard's no RIGHTS therefore they had none. They await the response from the panel to the claims put forth by Lee County. It is interesting to note that Lee County at this point hired a new attorney, a former supreme court justice of the state of Florida.
Further it is interesting to note that on the 15th of December 1997 the Supreme Court of the United States made a ruling in the case of City of
Chicago v The International Board of Surgeons that stated that ripeness was not an issue in having a trial in federal court for a violation of an individuals 5th amendment rights. The defendant may transfer the case to Federal Court and if the judge wants to take the case the plaintiff can transfer the case. Therefore the Reahards case was properly tried before
the Federal Court and the Ripeness Ruling by the 11th Circuit was wrong.
Where is the justice here?
The Justice is that the Reahards recieved the news today (02/12/98) that the appeals court has affirmed the lower court's ruling in favor of the Reahards and Lee County has now paid them.
Thank you Lord!
My wife and I would like to thank you for having us here to tell our story to your subcommittee. First a brief summary of the events leading up to the taking.
My mom and dad purchased property in Lee County in 1944 and in 1956. After my discharge from the army, my dad and I separated out a parcel of about 120 acres to divide into single and multi-family homesites. The development continued until the mid-70's, as funds allowed.
In November 1984, when my mother died (my dad died in '72), the balance of the subdivision-about forty undeveloped acres-fell to my wife and me by inheritance.
Then on December 21,1984, Lee County implemented the Lee County Comprehensive Land Use Plan and rezoned our land as a resource protection area. This allowed only one home on the forty acres.
This in effect took all use of the land since previous zoning allowed for 126 residential units and a two-and-one-half acre marina site on the property.
Just prior to the downzoning, we had been offered 1.2 million dollars for our forty acres; after the downzoning, we had a 40 thousand-dollar undeveloped building site. At this point most citizens would believe that the constitutional protection of property as stated in the Fifth Amendment would provide that the local government would be required to pay for the taking. But they would be wrong, of course.
We then proceeded to follow the law as we had done since the beginning of the development and applied for a "determination of error" in the classification of the property as a resource protection area. After reviewing the application, Lee County informed us that there was no error. At that time we were advised that there was also no legal action we could take to resolve this issue; as a result of that advice we wrote to our county commissioner and offered to sell the property to Lee County for $600,000, half what we originally we had previously been offered.
Our commissioner, Mary Ann Wallace, did not respond to our offer. But then the Supreme Court ruled in the First English Case in California, and it seemed that there might be support for our case.
As a result we contacted Jeffrey Garvin of Garvin & Tripp, a law firm in Ft. Myers, Florida. After reviewing our case they consented to represent us.
We then began jumping through the administrative hoops in Florida's "Comp Plan Law"-a law created, in my opinion, to discourage the exercise of our constitutional rights.
We applied for a plan amendment from "resource protection area" to "urban community". The Lee County Planning and Zoning Commission recommended this change for approval. But it was denied by the County Board of Commissioners.
The next hoop was an Application for determination of Minimum Use. Denied!
By now four-and-a-half years had passed since our property was rezoned. We jumped through the next hoop: we requested some undefined "equitable estoppel." Denied! (I still don't understand what it was). The next hoop was to request an administrative interpretation of a development right based upon the legal description. The county's attorney determined that we should be allowed to build four homes instead of one; but then the Board of Commissioners said he was wrong and reverted the zoning back to one unit on the forty acres-even though they had amended the "Lee Plan" to allow 2 units on 40 acres by this time.
At this point six years had passed, and we felt that enough was enough and the case should be ripe for trial. We filed it in the Twentieth Judicial Circuit Court of the State of Florida. During this time we had received no income from this property-only expenses-and we were required to continue to pay the property taxes (thousands of dollars we have never recovered, by the way).
After we filed the suit, Lee County removed the case from the state court to the Federal District Court where the trial was held in 1990. The Magistrate ruled in our favor, stating that the case was both ripe for trial and that a taking had occurred.
A jury then awarded us $700,000 for our property.
Lee County appealed the decision to the 11th Circuit Court of Appeals, which delayed ruling on the case waiting for a ruling from the Supreme Court on the Lucas case out of South Carolina. When that ruling did not affect our case, the appeals court again dodged a ruling on the merits by ordering the District Court to review the ripeness issue.
The District Court reaffirmed its ruling that the case was ripe for trial. Lee County again appealed. Now this appeal was very interesting because, as you remember, it was Lee County's idea that we go to Federal Court in the first place. In other words, they argued that the Appelate Court should rule against their own decision to remove the case to Federal Court in the first place.
The appeals court agreed. This time they ruled against the lower court and ruled the case should never have been tried in Federal Court, but in the State Court were it was originally filed-where we wanted to try several years earlier.
Lee County had now held our property hostage for more than 10 years through the use of administrative mumbo-jumbo. After another 2 years of preparations (legal and administrative) the case was ready to be tried in State Court in Lee County.
The trial began on the 13th of February 1997 and ended on the 20th. Judge Pack ruled at the end of closing arguments that Lee County had in fact taken our property as we claimed in December 1984, and he ordered that a jury trial be held to determine the value of the property. The jury awarded us $600,000 and of course Lee County appealed.
The 2nd Circuit Court of Appeals heard the arguments on the 5th of January 1998 and ruled in our favor, affirming the lower court ruling on the 12th day of February 1998.
It was still necessary to negotiate with the County to resolve attorney's fees and other costs.
We finally settled for an amount that cost the TAXPAYERS of Lee County more than 2.2 million dollars-not counting the county's own legal fees. It should have been resolved in 1985 for $600,000-and would have been except for our current legal system which encourages local governments to misuse their power, knowing that judgment day for them is far in the future-if it comes at all.
But this case has cost our family much more that what the taxpayers of Lee County have paid. Our doctors have informed us that the stress we endured over the fourteen years resulted in physical and mental damage to both my wife and me. It has challenged our faith in the legal system and the integrity of our public officials. In the end, we still received less than the real value of our property.
But we have also seen great support. I would like to state for the record that we have received many calls over the years in support of our case from property owners whose parcels are too small to justify a lawsuit such as we experienced. They have lost their property and will never receive any compensation for it under the existing laws because of the cost of the preparation for going to trial. They need their day in court, too. We pray that our presence here and our story will help this Subcommittee to resolve this problem. It is our opinion and belief that God created us and granted us freedom. The founding fathers recognized no one can be free without security in their right to ownership and use of property. Thank you again for listening to our story.