Testimony of Mr. Jeff Garvin Attorney for Mr. and Mrs. Richard Reahard Before the Senate Judiciary Committee October 6, 1997 Thank you, Chairman Hatch and Members of the Committee: Thank you for the opportunity to appear before you to talk about my clients, Richard and Ann Reahard from Lee County Florida, and their 14-year struggle to use their land. I have agreed to speak on their behalf today due to Mr. Reahard's health problems. I am here today to explain their story, but their story is not unique. It is merely one illustration of how the current regulatory climate can effectively prevent ordinary people, like the Reahards, from using their land. More importantly, it is an illustration of how the current rules and court procedures can be twisted and manipulated to make it nearly impossible for ordinary people, like the Reahards, to seek justice when their Constitutional rights have been violated. Richard and Ann Reahard inherited 40 acres of land in Lee County Florida back in 1984. Two weeks later, the county adopted a comprehensive land-use plan which restricted the use of that land, which had been previously zoned for high-density residential development. Citing wetlands restrictions, the county's new land-use plan restricted the development on this 40 acre lot down to a single house. Overnight, the land inherited by Richard and Ann lost 96 percent of its value. The county did not offer to pay Richard and Ann for their loss, they were simply informed that the county's new land-use plan was the way things were going to be Richard and Ann tried to follow the complex road of administrative and legal obstacles to find relief from the county's decision regarding their land. In 1985, they filed an application for an Administrative Determination of Error, to see if the land had been classified incorrectly as wetlands. No error was found. They later filed a Request for Plan Amendment, to change the property's classification from a "resource protection area" to an "urban community." This change would have allowed up to 6 units per acre on 35 acres, with the Reahards donating 5 acres as a buffer zone. The County Planning and Zoning Commission recommended approving the offer, but the County Board of Commissioners vetoed the decision and reiterated that it wanted to allow only one unit on the entire 40 acres. In 1989, the Reahards tried again, filing an Application for Determination of Minimum Use. The Application was denied. They then requested "equitable estoppel," seeking to end the ban on development on their land, arguing that Lee County had approved development on neighboring parcels and their plot should be treated equally. Again, Lee County denied the request. The Reahards then sought an administrative interpretation of their development rights to determine if the county's actions were "confiscatory, arbitrary, capricious, or unreasonable" or if the county's decision constituted a denial of all economically viable use of the property. In response, the Lee County Attorney's Office decided they could build four homes, not one, on their property. The Reahards appealed to the Board of Commissioners, who agreed with the decision with one small modification - only one home, not four. By this time, the Reahards had spent 6 years filing motions, filing appeals, begging, and pleading for the right to use their property, or to restore some value to it. Had they done enough to satisfy the federal court's ripeness requirement that they reach a final decision from the zoning commission? Maybe. Maybe not. Without some objective definition, like that provided by S. 1204, property owners have no way of knowing when "enough is enough." Rather than take the risk of spending even more time and money in federal court, only to be rejected on ripeness grounds, the Reahards finally filed suit in state court, the Twentieth Judicial Circuit Court of the State of Florida. Remember, the Reahards filed suit in state court - not federal court - seeking relief. Lee County, however, responded by removing the case from state court to the Federal District Court. In 1990, the Federal District court sided with the Reahards, ruling that they had exhausted all administrative remedies, their case was ripe for adjudication, and that a taking had indeed occurred. A jury awarded them $700,000 for the lost use of their land and for the legal and administrative ordeal they had endured. But their ordeal was not yet over. Lee County appealed the decision to Eleventh Circuit Court of Appeals, who decided to delay the case until the Supreme Court made a ruling in the Lucas v. South Carolina Coastal Council. Because the court was unclear how to deal with the case, the Reahards were left to wait even longer for a final decision. The Supreme Court decision ultimately did not provide the Court of Appeals with any guidance on how to deal with the Reahard case. The Eleventh Circuit Court of Appeals, rather than making a decision, asked the District court to revisit the ripeness issue, to make double-sure that the Reahards had indeed fulfilled the ripeness requirements and belonged in federal court. The District Court confirmed its original ruling on ripeness and the magistrate judge reconfirmed the jury's award of $700,000 compensation for the taking. Unfortunately, this too is not the end of the story. Lee County appealed to the Eleventh Circuit Court of Appeals again. This time, the Appeals court did make a decision. It decided that the case was not ripe for review because the Reahards had not exhausted their state court remedies first, so the district court should never have heard the case in the first place. The case was remanded back to state court. Now remember, it was the County, not the Reahards, that removed the case to federal court. After almost 10 years in federal court, the Reahards are back in state court - back where they started. Fourteen years and tens of thousands of dollars in court fees and legal costs, with nothing to show for it. The Reahards played by the rules, and so far, have paid dearly for it. This year the state court, too, ruled that the County had taken the Reahard's property back in 1984. A jury awarded them $600,000 plus additional money for interest and attorney's fees. Lee County has appealed again with Florida's Twentieth Judicial Circuit Court of Appeals. No decision has yet been reached. This is the path the Reahards have had to travel in the pursuit of their rights. They may eventually win this fight, and I hope they do, but at what cost? At what cost to them not just in dollars but in time, and energy, and anxiety? And at what cost to our freedoms as Americans? Indeed, at what cost to Lee County and its taxpayers? Instead of making a reasonable effort to accommodate the rights of Richard and Ann Reahard, the County government has put their taxpayers almost $2 million in the hole, plus all of the legal fees they have spent along the way. Is this the way our system should work? Should small property owners face this kind of uphill battle against the government just to have their rights respected? Thank you again for this opportunity to share the experiences of Richard and Ann Reahard in the hopes that Congress will make the kinds of reasonable reforms necessary to ensure that other couples, like them, will not face the same ordeal.