There won’t be a three-peat showdown between Riviera Beach and longtime city nemesis, Fane Lozman, before the U.S. Supreme Court — at least for now.
In a decision Riviera Beach officials celebrated in a press release, the nation’s high court last week declined to wade into a multimillion-dollar dispute over whether the city illegally seized Lozman’s mostly submerged land along Singer Island by refusing to let him develop it.
As is typical, justices didn’t say why they decided not to hear the case. But, city officials were elated.
“This outcome is a tremendous relief for the city and our residents,” City Manager Jonathan Evans said in the press release.
While Lozman has twice battled the city before the Supreme Court and won, little money was at stake. This case was different.
“A reversal of the Eleventh Circuit’s ruling could have subjected the city to tens of millions of dollars in potential liability,” Evans said. “The Supreme Court’s decision affirms our position and protects the public’s interest.”
It also means other similar cases will be dismissed as well, Evans said. Coral Gables developer Rodney Barreto, chairman of the Florida Fish and Wildlife Conservation Commission, also sued the city, claiming it had refused to allow him to develop the roughly 20 acres of mostly submerged land he owns along Singer Island.
The case had been put on hold until Lozman’s appeal was decided.
Decision based on a narrow ruling
Lozman, who owns about 70 acres of submerged land along the northern portion of Singer Island west of Ocean Drive, estimates the city would be on the hook for at least $455 million if he won his lawsuit, allowing other landowners, like Barreto, to cash in. And, Lozman insisted, the city’s celebration is premature.
“All the court did was kick it down the road for a year,” said Lozman, a self-made millionaire who has been warring with the city since he docked his floating home at its marina nearly two decades ago.
Lozman said he can keep the case alive because the Atlanta-based appeals court didn’t rule on whether Riviera Beach robbed him of any use of his land and therefore had to pay for it. Instead, in a narrow decision, it said Lozman hadn’t taken the necessary steps to prove the city stopped him from developing the land.
“Lozman asks us to resolve his dispute prematurely,” Chief Judge William Pryor wrote for the three-judge appellate panel. “Because Lozman has never received a final, written denial of his application for the development of his land from Riviera Beach, his claim is not ripe for judicial review.”
The appeals court dismissed Lozman’s case “without prejudice.” That means he can refile it once Riviera officially rejects his development plans.
Changing the property’s ‘essential natural character’
Lozman said he will go through what he calls a “futile” exercise of asking Riviera to let him fill the roughly 8 acres he owns along a narrow strip of upland off of Pine Point Road so he can build as many as eight houses on it.
With the city’s rejection in hand, he will refile the suit in U.S. District Court in West Palm Beach. The results of that lawsuit are predictable. He will lose, he said.
U.S. District Judge Donald Middlebrooks has already ruled that Lozman should have known that he had no ability to develop the land when he paid $24,000 for it in 2014.
“Most of Mr. Lozman’s property is and always has been submerged land in an environmentally sensitive protected lagoon,” Middlebrooks wrote. “His property interests have always been limited by background principles of both federal and state law. He could have no reasonable expectation to be able to change the essential natural character of his property.”
Middlebrooks flatly rejected Lozman’s contention that Riviera Beach changed regulations after he bought the land and therefore must pay him at least $49,000 an acre for it because they rendered it useless.
“Mr. Lozman continues to have what he has always had, a narrow strip of dry land, likely worth more than he paid,” Middlebrooks wrote. “The value of his property has not been wholly eliminated.”
Takings law appears ripe
Lozman, who now values the land at $6.5 million an acre, said he knows he won’t convince Middlebrooks to change his mind and won’t even try. Once Riviera Beach rejects his development plans, he said he will appeal Middlebrooks’ expected ruling back to the 11th Circuit and, if necessary, to the Supreme Court.
The issue has divided courts across the nation, he said. The Supreme Court has to step in to resolve the undecided question of when a government action renders land useless and therefore has to pay for it.
In a 2021 dissent of a case that turned on that issue, Justice Clarence Thomas said clarity is needed. “If there is no such thing as a regulatory taking, we should say so,” he wrote. “And if there is, we should make clear when one occurs.”
Others have also urged the high court to decide the thorny question. Various groups, including the Cato Institute and the National Association of Home Builders, filed legal papers on Lozman’s behalf, asking the court to resolve the matter.
‘They’re going to lose the war’
All of that gives Lozman confidence. It’s just a matter of time, he said.
Riviera Beach has declared victory prematurely before.
In 2014, city leaders celebrated after a federal jury cleared council members of violating Lozman’s free-speech rights by having him arrested for berating them during a public meeting. Four years later, the Supreme Court ruled the city had violated Lozman’s rights.
That decision came five years after Lozman in 2013 convinced the high court that the city illegally seized and destroyed his 60-foot, two-story floating home docked at the Riviera Beach marina by using centuries-old maritime laws. The court agreed with Lozman, ruling that everything that floats is not a boat.
Lozman predicted the city’s recent victory will be short-lived.
“They may have won the battle, but at the end of the day, they’re going to lose the war,” he said.
This story was originally published by Stet News Palm Beach, a WLRN News partner.
