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Testimony of Richard Reahard House Constitution Subcommittee Hearing on H.R. 2372, The Private Property Rights Implementation Act of 1999
September 15, 1999

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.