Hot Docs: Supreme Court sides with property owner against city

January 17, 2013

David vs Goliath SCOTUSYou wouldn’t expect a dispute between a man with a floating house and the city trying to evict him from the public marina to reach the U.S. Supreme Court, but that’s exactly what happened in the case of Fane Lozman.

After 2005’s Hurricane Wilma destroyed the marina where Lozman had kept his house in North Bay Village, Florida, he had it towed to the city of Riviera Beach’s public marina, where it stayed until April 2009.

When Lozman arrived at Riviera Beach on March 10, 2006, he and the city marina entered into a “Wet-Slip or Dry Storage Agreement,” which called for Lozman to pay a monthly dockage fee of $1,174.48 by the first of each month, and dockage was provided on a month to month basis.

According to Lozman, on May 10, 2006, a day before then-Governor Jeb Bush signed an anti-eminent domain bill into law, “the city entered into an agreement with a private developer for the redevelopment of the marina.”

Seeking to scrap the deal, Lozman filed suit claiming that the city’s meeting with the developer violated a Florida open meetings law, which requires public notice of any government meeting.

It’s unclear how the lawsuit turned out, but the development plan was abandoned, for which Lozman takes credit.

Later that summer, the city issued Lozman a notice of eviction from the marina, and subsequently filed an eviction suit.

The city’s reason for doing so?  Lozman had “failed to muzzle his ten-pound dachshund” and had “used unlicensed repair persons to perform work” on his house.

After a three day jury trial, Lozman prevailed; and throughout the proceedings, he continued to pay his monthly dockage fee and remained at the marina.

The next spring, the city instituted a revised dockage agreement and updated marina rules and regulations, which, among other things, required all vessels docked at the marina to “maintain liability insurance” and “be operational and capable of vacating the marina in case of an emergency.”

Since Lozman’s house lacked any means of independent propulsion and any steering mechanism, it was, of course, was not in compliance, and after several more months, the city revoked his permission to stay docked at the marina.

Hot Doc: Lozman v. City of Riviera Beach, Fla.

Source: Thomson Reuters News & Insight – National Litigation

The city then filed a trespass action against him and sought to enforce a maritime lien under federal law, which allows a provider of “necessities” to a “vessel” to enforce a lien in the amount of the costs of such “necessities” (this lien was $3,039.88 in docking fees).

Lozman, representing himself, argued in court that his house was not a “vessel” under pertinent federal law, which describes a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

The district court found that Lozman’s house was, indeed, a vessel, since it was “capable of being used…as a means of transportation on water,” and the appeals court agreed.

The Supreme Court agreed to hear the case, and on Tuesday, it ruled 7-2 in Lozman’s favor.

Lozman floating house

Lozman’s floating house; photo from court filings

The majority, consisting of Justice Breyer (who wrote the opinion), Chief Justice Roberts, and Justices Ginsburg, Kagan, Scalia, Thomas, and Alito, found that the appeals court’s definition of “vessel” was far too broad, and that under such a definition, “a door taken off its hinges” or “Pinocchio (when inside the whale)” would be considered “vessels.”

The majority found this result absurd, and created new guidelines to help future courts determine what constituted a “vessel:”

“Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.”

Unfortunately for Lozman, this relief came too late to save his home.

After the district court ruled in the city’s favor, it also ordered the U.S. Marshal to release Lozman’s house and execute its sale in satisfaction of the judgment (Lozman’s emergency motion to stay the sale was denied).

At the house’s auction, the city outbid all others, purchased the boat, and destroyed it.

Mind you, Lozman had heavily modified his house from the manufacturer’s design: it had French doors on three sides, a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space.

Although the Supreme Court’s ruling won’t bring Lozman’s house back, it will allow him to recover monetary compensation from the city.

What may make everyone else feel better is that this David v. Goliath story turned out much differently than 2005’s Kelo v. City of New London, which still has many eminent domain opponents riled up.

We can only hope that Lozman is the first step in a different direction from Kelo instead of a one-time deviation therefrom.