Jane MusgraveFane Lozman claims submerged land is worth $50 million, demands city pay for rezoning decisions; federal appellate court says case isn’t ‘ripe’
Could twice-charmed Riviera Beach gadfly Fane Lozman get an unprecedented third chance to face off against the city in the hallowed halls of the U.S. Supreme Court?
The self-made millionaire is convinced his return flight is guaranteed after the 11th Circuit Court of Appeals this month rejected his lawsuit, claiming the city robbed him of any use of 7.5 acres of mostly submerged land he owns at the north end of Singer Island and therefore must pay him the nearly $50 million he says it’s worth.
“I got my ticket to go back to the big dance a third time and I’m going to punch it,” the 63-year-old Lozman said after a three-judge panel of the Atlanta-based appeals court on Oct. 16 ordered the lower court to dismiss his suit.
Attorney Amy Petrick, who represented Riviera, didn’t return an email or phone call for comment. She works for Lewis, Longman & Walker, a West Palm Beach law firm that has represented the city in multiple legal showdowns with Lozman.
City leaders and their attorneys may have learned to curb their enthusiasm.
After they celebrated other court victories against Lozman, they were crushed in 2013 and again in 2018 when the nation’s high court ruled that the city had wronged him — first by seizing his floating home and having it destroyed and then by ejecting him from a City Council meeting.
So, is history likely to repeat itself? It could. But, this case is different.
In contrast to Lozman’s previous legal battles, the appellate court didn’t decide whether Lozman or the city was right or wrong.
It sidestepped the question of whether the city had taken Lozman’s land when it updated its comprehensive land-use plan in 2021 and passed a law that took away his one-unit per acre zoning and designated his property for preservation.
Lozman argues the underwater land could be filled and developed, following the pattern of development of Singer Island in the 1950s and 1960s, a prospect that angers existing homeowners.
Instead of addressing Lozman’s claims, the appeals court ruled that because Lozman hadn’t asked the city for permission to build on his land, the case wasn’t “ripe.”
“Because Lozman has failed to apply for a permit to develop his land, we cannot know the extent of the economic damage, if any, caused by Riviera Beach’s comprehensive plan or ordinance,” Chief Judge William Pryor wrote in a decision joined by Judges Robert Luck and Frank Hull.
Until Lozman seeks a permit, Pryor said there is nothing for the court to decide.
Yes, but Lozman claims that asking the city for permission to fill the land and build eight houses on it would be a colossal waste of time.
“Lozman has not applied for permits to develop his land because he obviously can’t get one,” wrote his attorney Kerri Barsh of Greenberg Traurig in Miami.
City officials have told Lozman he “would never receive permits for his parcel,” she wrote. They stopped him from getting mail at the property, revoked his electrical permit and then fired the chief building official who issued it, she wrote.
“Life is full of uncertainties,” Barsh wrote. “But whether Riviera Beach will give Fane Lozman special permission to build a house — candidly, that’s not one of them.”
What’s next? While the high court accepts just 100 to 150 cases of the more than 7,000 that are filed annually, Lozman is betting conservative firebrand Justice Clarence Thomas will urge his fellow jurists to hear this lawsuit.
In a 2021 dissent of the court’s refusal to hear a case involving government rules destroying land value, Thomas said confusion reigns. It began when the high court in 1992 ruled that landowners should be compensated if regulations strip them of the ability to use their land. Clarity is needed, he said.
Thomas noted that 25 years after that decision just 27 of the 1,700 property owners who filed suit were successful, a mere 1.6%.
“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.”
