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Rat, rabbit, rules stymie developer

The high court lets stand a ruling that a landowner should have known that his property was unsuitable for his plans.

By CRAIG PITTMAN

© St. Petersburg Times, published April 4, 2000


Of the 40 acres Lloyd Good owns on Sugarloaf Key, only 8 are dry. Good has been trying since 1980 to fill in part of the swampy section so he can build a luxury waterfront development called Sugarloaf Shores.

When federal officials told him to change his plans for Sugarloaf Shores because a pair of endangered species live on his property, Good sued. He argued that by protecting the Lower Keys marsh rabbit and silver rice rat, the government had in effect taken his land. He demanded to be paid.

On Monday, the U.S. Supreme Court sent him home empty-handed.

In a case with national implications for environmental regulation, the high court unanimously let stand a lower court decision that said the taxpayers do not owe Good a penny.

The court said Good should have known he would have trouble building a subdivision in a swamp. He had "no reasonable expectation" of developing his land and thus could not claim the government took it, the lower court said in August.

Good said he was "disappointed" at the ruling.

"This case is going to set a landmark precedent that's going to be damaging to all private property rights," the 69-year-old Monroe County lawyer said. "And all because of a rat and a rabbit."

Environmental activists praised the ruling, particularly in light of efforts by the Legislature to make it easier for property owners to demand payment from government agencies that restrict development in sensitive areas. The Supreme Court decision makes the Legislature's efforts look "ludicrous," said Audubon Society senior vice president Charles Lee.

In Good's case, the high court simply used common sense, said Glenn Sugameli, an attorney for the National Wildlife Federation.

"This was your classic Florida swampland," Sugameli said. "When he purchased it, his sales contract said he would have trouble developing the property."

Good bought the island property north of Key West in 1973 but made no move to develop it until 1980. His plans called for a 54-lot subdivision with a 48-slip marina. To build that, he proposed filling more than 7 acres of marsh and digging up another 5 acres.

To do all that, he needed permission from a variety of county, state and federal agencies. Over the next 14 years Good got some of the permits he needed, but never all of them at the same time.

In 1990 he tried scaling back his plans to just 16 homes, a canal and a tennis court. But the new plan called for putting all the homes on filled-in swamp -- not an improvement, regulators said.

Had Good developed his land in 1973, he might not have run into so much trouble. Over the years, though, public concern over environmental degradation pushed state and federal officials to tighten regulations. The Endangered Species Act was enacted in December 1973, and the Lower Keys marsh rabbit and silver rice rat were added to the endangered species list in the late 1980s and early 1990s.

In 1991, the U.S. Fish and Wildlife Service declared that Good's modified development plan would jeopardize the rat and rabbit. The agency suggested alternatives, including building all the homes on dry land. But in 1994, the Army Corps of Engineers denied his permit application based on the threat to the endangered species.

"This was just a ploy to keep me from developing the wetlands," Good contended.

Good sued in the Court of Federal Claims, seeking hundreds of thousands of dollars in compensation. He lost. He took his claim to the U.S. Court of Appeals, which handles all such "takings" claims.

That court ruled against him too, in a decision the U.S. Justice Department hailed as "a significant victory for environmental protection."

Monday's Supreme Court ruling was the third strike. Good said his only option now is to try the Fish and Wildlife Service's alternatives for developing his land while protecting the environment.

Good contended the rat and rabbit do not really live on his land. If they did, he said, it should be easy to boost the population of at least one of them.

"The only way you get rabbits out of the endangered list is to have two of them and leave them alone for a while," he joked.

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