Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Filtering by Tag: commerce clause

2d DCA Allows City to Maintain Appeal of Mooring Ordinance Prosecution

City of Marco Island v. Dumas, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 2009)

Anti-cruiser, anti-liveaboard ordinances are a pet peeve of mine, having grown up living and cruising on boats. The City of Marco Island criminally prosecuted David Dumas for anchoring his boat within 300 feet of a residential property. (note – this is probably preempted under a recent statute). These types of ordinances implicate and generally violate the commerce clause of the US Constitution, which allows free navigation of all navigable waters of the United States, subject only to Congressional regulation.
So when prosecuted, Dumas filed a motion to dismiss based on the violation of the US Constitution and – not shocking – won the motion. The Court later dismissed the charge formally. The City appealed to circuit court, and Dumas claimed it was too late This turns into a question of when the order was final, and the 2d DCA agreed with the City.
Not that the City should win its appeal.

11th Cir Reverses District Court Decision NOT finding commece clause violation

in Cachia v Village of Islamorada, the 11th Circuit reversed a decision by a different district court judge that had dismissed a commerce clause claim against Islamorada's "formula retail" ordiance.

The 11th found the complaint stated a cause of action and remanded for proceedings. What will be interesting to see is whether the Plaintiff will be able to establish the critical facts at trial that were stipulated in Island Silver & Spice.

11th Circuit Upholds District Ct Holding in Islamorada "Formula Retail" Case

In Island Silver & Spice v. Islamorada, the 11th Circuit upheld the District Court's determination that the Village of Islamorada's "formula retail" ordinance violated the commerce clause.

While the Court doesn't open a door wide for a new way to attack land use restrictions wholesale (and the reach may be limited by the type of facts to which the city stipulated), this opinion needs to be studied by government and private attorneys alike.

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