Item O07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: January 26,2009
Division:
County Attorney
Bulk Item: Yes
No ..K..-
Staff Contact Person: Bob Shillinger, x3470
AGENDA ITEM WORDING:
Approval to invoke the Florida Supreme Court's discretionary jurisdiction to review the Third DCA's
decision in Collins, et. al. v. Monroe County and State of Florida 3D07-1603 (Lower Tribunal No. 04-
379), dated December 31, 2008.
ITEM BACKGROUND:
On December 31, 2008, the Third District Court of Appeal (Third DCA) reversed the trial court's
summary judgment order it entered in favor of Monroe County and the State of Florida. The trial court
treated Landowners' claims as facial takings claims, and then dismissed the claims on Statute of
Limitations grounds because they were filed in 2004-more than four years of the 1996 adoption of the
complained-of regulations. The Third DCA disagreed with the trial court's finding that the Beneficial
Use Determinations (BUDs) obtained by the Landowners between 2002 and 2004 "do not constitute
the meaningful applications necessary to ripen an as-applied takings claim." The Third DCA's decision,
however, rejected Landowners' previously asserted arguments that (1) the BUDs conclusively establish
that the subject properties were taken by regulation and (2) an objective rather than subjective standard
should be applied in determining their investment-backed expectations.
The Third DCA did not find the County or State liable for any takings, but ,remanded "for consideration
of those factors necessary to evaluate an as-applied taking specific to each of the Landowners. It
remains for the trial court to determine - for each of the properties - what, if any, reduction in beneficial
use has been sustained by application of the challenged land use regulation. In determining to what
compensation, if any, the Landowners are entitled, the court must take into consideration the reasonable
investment-backed expectations of each Landowner relative to date of purchase (pre- and post-land use
regulation) and post-BUD resolution events (sale of property, grants of development pennits, lifting of
moratoria, etc.) that, despite the ROCC's resolutions finding complete diminution of value, may have an
impact on the type and level of compensation to be granted to each."
The Monroe County Attorney's Office (MCAD) recommends taking the necessary steps to invoke the
Florida Supreme Court's discretionary jurisdiction to review the Third DCA's decision on the grounds
that it conflicts with other District Court decisions in holding that a property owner can ripen an as-
applied regulatory takings claim without applying for development approval. The Third DCA's
recognition that two of the Landowners who actually applied for development approval received
building permits is contrary to its finding that the BUDs satisfy the decisional finality requirement in
takings law.
In order to invoke the Florida Supreme Court's discretionary jurisdiction, the County must file a notice
with the Clerk of the Third DCA within 30 days of the date the decision becomes final. Ajurisdictional
brief must then be served within 10 days of filing the notice. A brief on the merits is served within 20
days of an order accepting or postponing the decision on jurisdiction. The MCAO will complete all
briefing and expects to incur minimal outside counsel costs in consulting with Stephen Moore, Esq., on
an as needed basis. The MCAD will also continue to coordinate efforts with Assistant Attorney General
Jonathan A. Glogau, Chief of Complex Litigation, who is handling this matter for the State of Florida.
PREVIOUS RELEVANT BOCC ACTION: None.
CONTRACT/AGREEMENT CHANGES: None.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $300.00 (filing fee)
BUDGETED: n/a
COST TO COUNTY: $300.00
SOURCE OF FUNDS: Ad valorem
REVENUE PRODUCING: No.
APPROVED BY: County Atty ~ OMBlPurchasing_
Risk Management _
DOCUMENTA TION:
The Third District's opinion in Collins, et. al. v. Monroe County and
State of Florida (3D07-1603), dated December 31, 2008.
DISPOSITION:
AGENDA ITEM #
Revised 2/05
'!tbitb lliS'trtct (!Court of ~pptal
State of Florida, July Term, A.D. 2008
Opinion filed December 31,2008.
Not final until disposition of timely filed motion for rehearing.
No.3D07-1603
Lower Tribunal No. 04-379
Thomas F. Collins and Patricia Collins, Donald Davis; Aurelia Del
Valle and Maria Del Valle, Hill Family Investments, Inc.; Richard J.
Johnson and Joann C. Johnson; Robert A. Lomrance; Joseph
Magrini and Elda S. Magrini; Keith P. Radenhausen; Frank J.
Schneider; Mary Ann Ricklin; Rosemary Riordan;oHubert Tost and
Marilyn Tost, and Samuel I. Burstyn, P.A.,
Appellants
vs.
Monroe County, a political subdivision of The State of Florida, and
The State of Florida,
Appellees
An Appeal ii-om the Circuit Comi for Mom'oe County, David Audlin, Jr.,
Judge.
James S. Mattson (Key Largo); Andrew M. Tobin (Tavemier), for
appellants.
Stephen 1. Moore and Elizabeth A. Moran (Kansas); Suzanne Hutton,
Monroe County Attomey, and Derek V. Howard, Assistant County Attomey; Bill
McCollum, Attorney General, and Jonathan A. Glogau, Assistant Attorney General
(Tallahassee), for appellees
Before GERSTEN, C.J., and SUAREZ and CORTINAS, JJ.
SUAREZ, 1.
Thomas F. Collins and Patricia Collins, Donald Davis, Aurelia Del Valle
and Maria Del Valle, Hill Family Investments, Inc., Richard 1. Johnson and Joann
C. Johnson, Robert A. Lmm'ance, Joseph Magrini and Elda S. Magrini, Keith P.
Radenhausen, Frank 1. Schnieder, Mary Ann Ricklin, Rosemmy Riordan, Hubelt
Tost and Marilyn Tost, and Smnuel L Burstyn, P.A., [collectively, "the
Landowners"] appeal fimn a final order granting smmnary judgment for the
Defendants, Mom'oe County and the State of Florida, in an inverse condemnation
case. The trial comt found that there was a facial taking of the propelties in
question and, as such, each landowner's cause of action was bmTed by the four-
yem' statute of limitations. We reverse and remand as we find the taking to be an
"as-applied" taking and, as such, the statute oflhnitations had not run.!
I We address in this opinion solely the issue of the smmnary judgment and make
no other detenninations. Smmnmy judgment is appropriate only when there is no
genuine issue of material fact and the moving pmty is entitled to judgment as a
matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d
126, 130 (Fla. 2000). Therefore, our review of the trial comt's final smmTIaIY
judgment is de novo. Id.; Major League Baseball v. Morsani, 790 So. 2d 1071,
1074 (Fla. 2001)
2
The Landowners own real propelty in Monroe County. In 1997, the
Landowners filed Beneficial Use Detennination (BUD) petitions2 pursuant to the
MOlli'oe County Year 2010 Comprehensive Plml.3 A BUD petition requires an
applicant to demonstrate that the comprehensive plan and land development
regulations in effect at the time of the BUD application deprive the applicant of all
reasonable economic use of the propelty. 4 In 2000, the BUD petitions were hem'd
by a Special Master. The record indicates that the County Planning Director
recOlmnended that the Special Master fmd that the properties were rendered
unbuildable under the County's Comprehensive Plan and other regulatOlY
considerations, and that the County purchase the properties. The Landowners did
not contest that recOlmnendation; the record indicates that they agreed that
2
Monroe County Code, Sec. 9.5-161. Purpose. It is the purpose and
intention of the Bom"d of County COlmnissioners to ensure that each
and evelY landowner has a beneficial use of his propelty in
accordance with the requu"ements of the Fifth and Fourteenth
Atnendments to the United States Constitution and to provide a
procedure whereby landowners who believe they are deprived of all
beneficial use may secure relief through an efficient non-judicial
procedure. (Ord. No. 33-1986, S 8-101)
3 In 1985, the legislature enacted a State Comprehensive Plan, effective July 1,
1985, ch. 85-57, 1985 Fla, Laws 295 (codified as mnended at Fla. Stat. ch. 187
(2000)); in 1986, the State Comprehensive Plan was adopted by Monroe County.
The Mom'oe County Year 2010 Comprehensive Plan was adopted by the Board of
County COlmnissioners on April 15, 1993; mnended pursuant to DCA Rule 9J-
14.022, Janumy 4, 1996; and adopted by FAC Rule 28-20.100 Pmt I, Janumy 2,
1996 and Part II, July 14, 1997.
4 Momoe County Code, Sec. 9.5-173, Relief Under Beneficial Use.
3
purchase was the prefened relief Between 2001 and 2003, the Special Master in
each case detennined that the Landowners' propelties had been deprived of all use
and value and, following the COilllty Planning Dn-ector's advice, recOlmnended
that the County purchase the properties. The Mom'oe County Bom'd of County
COlmnissioners C'BOCCtl) reviewed the BUD recOlmnendations, found that each
Landowner had been deprived of "all econOlnic use" of his propelty, and approved
the Special Master's recommendations that the County purchase the propelties,
Between 2002 and 2004, the BOCC rendered final BUD resolutions for
the Landowners. 5 In 2004, the Landowners filed a complaint against Momoe
County for inverse condemnation6 seeking just compensation for the alleged
pennanent constitutional taking of their propelty.
5 At the smne time they filed the BUD petItIOns, the Landowners moved to
intervene in the pending case of Ambrose v. Mom'oe County, a 1997 circuit court
case filed by other propelty owners seeking declaratory relief to detennine their
rights under Ch. 380, Fla. Stat. (which designates the Florida Keys as an Area of
Critical Concem), and to detennine the effect of the 1986 Land Development
Regulations and the 1996 Comprehensive Plan. The trial court found in favor of
the Landowners, but on appeal this Comt reversed the ruling, See Monroe County
v. Ambrose, 866 So. 2d 707 (Fla. 3d DCA 2003). As Intervenors, the Landowners
m'e subject to the holding in Ambrose requiring that they "demonstrate a good faith
reliance on section 380.05(18) and change of position in furtherance of developing
then'land in order to have vested rights to develop their propelty." Id. at 711-12.
6 The term "inverse condemnation" refers to the process by which a landowner
recovers dmnages from a govemmental taking of his propelty, even though no
fonnal takings or condemnation proceedings have been instituted. United States v.
Clarke, 445 U.S. 253,257 (1980).
4
The County filed a third-paJty complaint against the State. The Landowners
filed a motion for smmnmy judgment as to liability and the County and State filed
cross-motions for sUlmnmy judgment aJ'guing, in part, that the fom-yem' statute of
lilnitations on the Landowners' clahns to compensation for regulatOlY takings
began in 1997, on the date they filed theu' BUD Petitions.7 Thus, they m'gued the
lilnitations period had since expired and the Lan.downers were baITed. Prior to any
ruling, the Landowners amended their complaint to seek compensation for both a
tempormy and permanent taking, and abandoned their motion for smmnmy
judgment.
At the initial hem'ing, the comt detennined that an "as-applied" taking rather
than a "facial" taking had OCCUlTed. It then held, however, that the Landowners'
claims were not ripe for judicial detennination as the Landowners had not applied
for and received a fmal detennination from the local govelmnent pennitting
authority as to pennissible uses, if any, of their property. The trial comt concluded
that the Landowners' BUD applications did not constitute the final detennination
from the local govermnent required to ripen their "as-applied" takings claims. The
7 S 95. 11(3)(P), Fla. Stat. (2007). The catch-all fom-year statute of limitations
found within section 95.11(3)(p) has been held to govern inverse condemnation
actions. Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So, 2d 171, 172
(Fla. 2d DCA 1995).
5
trial court found that the BUD resolutions were not final determinations of whether
or how the properties could be developed.
The successor trial judge set the case for bench trial. After hem'ing
m~guments, the trial comt entered the amended order granting smmnmy judgment
in favor of the County and the State, which is the subject of this appeal. The trial
court detennined that the <<BUD petitions do not constitute the meaningful
applications necessmy to ripen an as-applied taking claim," and that, <<the claims
must be treated in this case as facial takings claims." The trial COUlt order
concluded that, as the taking was a facial taking and, as the Landowners did not
file their facial takings claims within four yem's of the adoption of the complained-
of 1996 Monroe County Yem' 2010 Comprehensive Plan, their mverse
condemnation suit filed in 2004 was bmTed by the statute oflnnitations.
Our review must necessarily begin with detennining whether there has been
a facial taking as found by the trial comt or an as-applied taking because the dates
of those events will fix the start of the Innitations peliod in relation to the date of
the Landowners' filing suit. There is an nnportant distinction between the two
types of claims and each raises different ripeness and statute oflimitations issues.
A facial taking, also known as a per se or categorical taking, occurs when
the mere enactment of a regulation precludes all development of the property, and
deprives the propelty owner of all reasonable economic use of the property. See
6
Lucas v. South Cm"olina Coastal Council. 505 U.S. 1003, 1017 (1992); TallOe-
Sierra' Preservation Council. Inc. v. Tahoe Regional rImming Agency, 535 U.S.
302 (2002) (holding that the deprivation of economic value required for a facial
taldngs claim is limited to the extraordinary circumstance when no productive or
economically beneficial use of the land is permitted). Anything less than a
complete elimination of econOlnically beneficial use or value of the land is not a
facial taking. Lucas, 505 U,S. at 1019-20 n.8; Taylor v. Village of NOlih Palm
Beach, 659 So. 2d 1167, 1170-71 (Fla. 4th DCA 1995) (holding that the standm-d
of proof for a facial taldng is whether the regulation at issue has resulted in
deprivation of all economic use); Golf Club of Plantation, Inc. v. City of
Plantation, 717 So. 2d 166, 170 (Fla. 4th DCA 1998) (overview of federal takings
analysis). The Supreme Court has recognized that "facial takings challenges face
an uphill battle since it is difficult to demonstrate that mere enactment of a piece of
legislation deprived the owner of all 'econOlnically viable use of [his] propeliy. m
Suitum v. Tahoe Regional Plmming Agency, 520 U.S, 725, 736 n.10 (1997).
In an as-applied clann, the landowner challenges the regulation in the
context of a concrete controversy specifically regm-ding the nnpact of the
regulation on a particular pm'cel of propelty. Taylor, 659 So. 2d at 1167. The
standm'd of proof for an as-applied taking is whether there has been a substantial
deprivation of economic use or reasonable investment-backed expectations. See
7
generally Penn Central Transp. v. City of New York, 438 U.S. 104 (1978)
(considering the economic impact of the regulation on the claimant, the extent to
which the regulation has interfered with distinct investment-backed expectations,
and the chm'acter of the govermnent action; diminution in the property value alone
cannot establish a taking); Taylor, 659 So. 2d at 1167. The question presented is
whether the record shows that the Landowners were deprived by the enactment of
the 2010 Comprehensive Plan of all econOlnic use of their property, which
mTIounts to a facial taking, or were deprived of substantial use of their propelty, but
left with some econOlnic value, which is an as-applied taking.
The record shows that the enactment of the regulation did not deplive the
Landowners of all reasonable econOlnic use of their propelty, 8 There is evidence
8 The record reveals that the Landowners pm"chased then' properties at different
times; some of the purchases date back to before the nnplementation of land use
regulations. The Landowners' properties m'e located on different islands in the
Florida Keys chain; their propelties differ in quality and land use classifications
and, as a result, have differing development potentials: Burstyn: unimproved lots
on Center Island, Duck Key, purchased 3/20/87, zoned Improved Subdivision -
Masomy (IS-M); Del Valle: unimproved lots on Center Island, Duck Key,
pmchased 3/11/90, zoned Improved Subdivision - Masomy (IS-M); Collins:
Unnnproved, scarified lots on Big Pine Key, purchased 4/25/91 and 5/15/87, zoned
Improved Subdivision (IS), subject to temporary building moratoriwn; Davis:
Unimproved, scmified lots on Big Pine Key, purchased 8/2/82, zoned Improved
Subdivision (IS), subject to temporary building moratorium; Johnson:
Unnnproved, scarified lots on Big Pine Key, purchased 4/7/86 and 4/15/90, zoned
Improved Subdivision (IS), subject to tempormy building moratorium; Magrini:
Unimproved, scarified lots on Big Pine Key, purchased 10/29/94, zoned Improved
Subdivision (IS), subject to temporary building moratorium; Radenhausen:
Unimproved, scarified lots on Big Pine Key, purchased 3/31/89, zoned Improved
8
in the record that a subset of the Landowners received post-BUD building permits,
or even sold their propelty.9 This is strong evidence that those paIticulm'
propeliies did, in fact, have development value, that the value of those properties
was not completely eliminated by application of the 2010 Comprehensive Plan,
and contradicts the findings of the Special Master and the BOCC that a facial
taking occmTed.
The Landowners who have sold their propelty since the BOCC BUD
resolutions have chosen to recoup their investment privately; again showing that
the value of the propelty was not totally eliminated by enactment of the 2010
Comprehensive Plan. These Landowners have received compensation and their
individual causes of action for a constitutional taking may be moot. See, City of
Winter Park v. Rich, 692 So. 2d 986 (Fla. 5th DCA 1997) (holding that plaintiff
who sold propelty at issue lacked standing to challenge city's denial of vm'iance to
Subdivision (IS), subject to tempormy building moratorium; Lomrance:
Unimproved lots, Big Torch Key, pm'chased 5/13/81, zoned Native Area (NA);
Schneider/Riordan/Ricklin: Unimproved lots, Rmm'od Key, purchased 9/8/84,
zoned Native Area (NA) wetlands; Tost: Unimproved lot, Smmnerland Key,
pmchased 10/17/68, zoned Spm'sly Settled-Native Area (SS-NA) wetlands; Hill:
unimproved lots, Key Lm'go, purchased 10/84, zoned Suburban Residential (SR).
9 Magrini and Collins received building pennits after they received their final BUD
resolutions from the County. Magrini received a building pennit on April 12,
2006; Collins received a building pennit on March 12, 2007. On Februmy 16,
2007, the Magrini Property was sold for $370,000. The record shows that, as of
May 9, 2007, the Collins Property was listed for sale in the amount of$995,000.
9
build on lot, absent allegation that he sold lot for less thm1 fair value due to denial
of vm'iance, rendering his claim moot). To receive additional compensation from
the County as palt of the current taldngs action would be a windfall above and
beyond what they received via sale to private pmties.
SiInilm'ly, those propelty owners who received development pennits may
have no :fillther cause of action for just compensation for the as-applied taking of
their propelties -- any taking was compensated by the grant to the landowner of a
pennit to develop the property, i.e., the economic expectation of the landowner has
been met. 10 As the econOlnic expectation of some of the Landowners, at least, was
not reduced to zero through the operation of the land use regulations, there has
been no facial taking ofthose propelties.
The County adJnitted in the record that the Big Pine Key propelties had
development potential, but because of a tempormy building moratorium (see
Ambrose) and a critical habitat plan that had not yet been finalized, the County
recOlmnended a finding of complete elnnination of beneficial use of those
pmticular propelties. It is not clear :fi:om the record before us whether, or if, the
building moratorium issue or critical habitat plan was resolved dOling the BUD
10 Cf. Suitum, 520 U.S, 725 at 749-750 (Scalia, J. concuning: "TDRs can serve a
cOlmnendable purpose in lnitigating the economic loss suffered by an individual
whose propelty use is restricted, and propelty value dhninished, but not so
substantially as to produce a compensable taking. They may also fonn a proper
pmt, or indeed the entirety, of the full compensation accorded a landowner when
his property is taken.").
10
process. Resolution of either of these two outstmlding matters between filing and
resolution of the BUD applications may have had an impact on the development
potential of the properties and the ecollOlnic expectatiolls of the Landowners so
affected.
As explained above, an exmnination of the record with regm-d to the affected
properties indicates that the enactment of the State Comprehensive Plan and the
Mom'oe County Yem' 2010 Comprehen sive Plan did not deprive the Landowners of
all beneficial use of their propelties. We thus find that any facial challenge based
on just compensation principles must fail as a matter of law. The Landowners'
claims are properly brought as as-applied challenges to the application of the
Monroe County land use regulations to specific pm'cels of property.
The next question to be answered as part of this analysis is whether the
Landowners' cause of action for an as-applied taking is ripe for judicial review.
To be ripe for judicial review the Landowners must show a final detennination
fl:om the govemment as to the pennissible use, if any, of the property. If there has
not been a final detennination, the Landowners' attempt to seek redress fl.-om the
court is premature, Willimnson County Regional Planning COlmntn v. Hmnilton
Bank, 473 U.S. 172, 186-94, (1985). In Willimnson County, the Supreme Comt
held that an "as-applied" Fifth Amendment takings claim against a municipality's
enforcement of its regulations is not ripe until (1) "the government entity charged
11
with implementing the regulations has reached a final decision regarding the
application of the regulations to the propelty at issue" (the "rule of finality"), and
(2) "if a State provides an adequate procedure for seeking just compensation, the
propelty owner cannot claim a violation of the Just Compensation Clause until it
has used the procedure and been denied just compensation." Florida courts have
adopted this federal ripeness requirement. See, City of Jacksonville v. Wynn, 650
So. 2d 182 (Fla. 1st DCA 1995); Timlennan v. Palm Beach County, 641 So. 2d
523, 526 (Fla. 4th DCA 1994); Glisson v. Alachua County, 558 So. 2d 1030, 1034
(Fla. 1st DCA 1990). The ripeness requirement applies only to as-applied takings
and does not apply to facial takings because in a facial taking "the mere enactment
of the regulation constitutes the taldng of all econOlnic value to the land." Lost
Tree Village Corp. v. City of Vero Beach, 838 So. 2d 561, 571 (Fla. 4th DCA
2002); see also Taylor, 659 So, 2d at 1172 n.3 (explaining that "based on Supreme
Comt precedent[,] the ripeness doctrine has generally not been applied to facial
challenges").
Ordinmily, before a takings clann becomes ripe, a propelty owner is
required to follow "reasonable and necessmy" steps to pennit the land use
authority to exercise its discretion in considering development plans, "including
the opportunity to grant any variances or waivers allowed by law." Palazzolo v.
Rhode Island, 533 U.S. 606, 620-21 (2001), The requirement is usually met when
12
the property owner files an application for a development pennit with the local
land use authority and receives a grant or denial of the pennit. See, Glisson 558 So.
2d at 1036 (holding that property owner failed to apply for, and been denied, a
development pennit, variance or rezoning request, resulting in a facial challenge).
Once it becomes clem" that the govel1unent authority "lacks the discretion to pennit
any development, or [that] the pennissible uses of the propelty me lmown to a
reasonable degree of certainty," it is only then that a takings claim is likely ripe.
Palazzolo, 533 U.S. at 620.
The Monroe County BUD Ordinance itself answers the ripeness question.
The BUD Ordinance was designed as a way to avoid constitutional takings
lawsuits by providing other means of compensating for total' or pmtial regulatory
loss of econOlnlcally beneficial use of property. In this way, the BUD Ordmance
differs :fi:om land use regulations in other jurisdictions in that it accounts for both
facial and as-applied takings, as seen in its bifmcated relief of either outright
purchase of the property (in the case of a per se taking) or grant of Transferable
Development Rights (TDRs), Rate Of Growth Ordinance (ROGO) points,
vm"iances and building pennits (in the case of an as-applied talcing). II
II Monroe County Code, Sec. 9.5-173 - Relief Under Beneficial Use:
(a) In order to establish that the applicant is entitled to relief, an
applicant for a beneficial use must demonstrate that the comprehensive plan
and land development regulations in effect at the time of the filing of the
beneficial use application deprive the applicant of all reasonable econOlnic
13
In this case, the BOCC concluded, pursuant to the BUD Ordinance and after
public hem'nlg, that there was no further beneficial use of the propelties and that
use of the propeIty. The remedies available to an applicant for beneficial use
will include issuance of a pennit or just compensation by purchase of all or
some of the lots or pm'cels or purchase of the development rights (leaving the
lot in private ownership) at the fair mm"ket value iImnediately prior to the
comprehensive plan or land development regulations in effect at the time of
the filing of the beneficial use application"
(1) Just compensation shall be the prefelTed option if:
(a) Beneficial use has been deprived by operation of
enviromnental policies or objectives contained in the comprehensive plan
and land development regulations in effect at the time of the filing of the
beneficial use application or miicle VII, division 8 of the land development
regulations C'Enviromnental Criteria"); or
(b) A strict, literal application or enforcement of the
comprehensive plan or land development regulations in effect at the time of
filing of the beneficial use application prevents all reasonable econOlnic use,
but is required to protect the public health, welfm'e or safety.
(2) If just compensation is not prefelTed, the detennination may allow
for additional use(s) or density beyond that allowed by a strict, literal
application of the comprehensive plan and land development regulations in
effect at the time of filing of the beneficial use application on this pmiiculm'
propelty (i.e" some additional, reasonable econOlnic use) which may include
the granting of an:
(a) Exemption; or
(b) Pennit for development despite the offending regulation (an
order shall state which offending regulation(s) are inapplicable or waived
and such a pennit shall be subject to nonnal construction deadlines and
expiration dates under chapter 6 of the Mom'oe County Code); or
(c) Transferable development rights (TDRs); or
( d) Any combination of the above; or
(e) Any other relief the county detennines appropriate and
adequate to prevent a taking, i,e., which will allow for reasonable econOlnic
use of the subject propelty or just compensation under the goals, objectives
and policies of tlle comprehensive plan and land development regulations in
effect at the time of the filing of the beneficial use application.
(Ord. No. 21-1998, S 4)
14
the County should pm-chase them. Those BUD Resolutions were a final decision
fi"om the appropriate govermnental entity as to the nature and extent of the
development that will be pennitted.12 Once the BOCC rendered a final decision
on the BUD applications, the Landowners' claims became ripe.13 See Bauknight
v. Momoe County, _ So. 2d ---.J 33 Fla, Law Weekly D2212 (Fla. 3d DCA
Sept. 17, 2008) (holding that a final decision by the county granting relief under
the BUD ordinance ripened the Landowners' claims for judicial consideration). At
that time the statute of lilnitations for filing an inverse condemnation action began
to run. Of course, if the County sits on its hands post-BUD and does nothing to
provide the agreed-upon compensation, a landowner cannot wait until the
lilnitation period mns before seeking judicial relief. In this case, the Landowners
properly pursued adIninistrative remedies,14 their claims ripened in 2002 when the
12
Momoe County Code, see, 9.5-174. Final determination by BOCC.
The board of county cOlmnissioners is the only entity which has final
authority to grant or deny vested rights or beneficial uses subject to
appeal by DCA under chapter 380.
13 We liInit this holding to actions filed pursuant to the Momoe County Beneficial
Use Detennination ordinance that encompasses both per se and as-applied
detenninations and provides for appropriate relief.
14 Where an owner is aggrieved by a land use mling, the owner must exhaust the
administrative remedies which m'e reasonably available before initiating a taking
claim. See Clay v. Momoe County, 849 So. 2d 363 (Fla. 3d DCA 2003), citing to
WillimDson County Regional Planning COlmnission v. Hmnilton Bank of Johnson
City, 473 U.S. 172, 186-94 (1985); Hodel v. Virginia Surface Mining &
Reclmnation Ass'n, 452 U.S. 264, 297 (1981); Agins v. City of Tiburon, 447 U.S.
15
BOCC Resolutions were rendered, and the Lmldowners filed their suit in 2004,
well within the fOUl'-year limitations period for filing an action for inverse
d . [5
con emnatlOn.
Where the land use ordinance, in this case the BUD Ordinance, leaves open
the possibility of reasonable use, a facial challenge will likely be unsuccessfuL See
Agins v, City of Tibm"on, 447 U,S. 255,260-61 (1980). The land use regulations,
zoning and pennitting ordinances applicable to the propelties at the time the
Landowners filed their BUD applications contemplated viable uses for some of the
subject properties, and prohibited ceIiain uses in others. The BUD process
provided a mechanism whereby both Landowners and Momoe County could
assess all possible uses and viable remedies, as well as seek additional uses of the
propelties through vm'iances or TDRs designed to avoid the velY action before us.
The BOCC's Resolutions to the BUD applications were final decisions by the
govemment entity chm'ged with implementing the regulations regarding the
application of the regulations to the propelty at issue. See Williamson County, 473
U.S. at 186-94. The Landowners' claims for inverse condemnation were ripe in
255, 260, (1980); Galaxy Fireworks, Inc. v. City of Orlando, 842 So, 2d 160, 164
(Fla. 5th DCA 2003); Lost Tree Village Corporation v. City of Vero Beach, 838
So. 2d 561 (Fla. 4th DCA 2002); Tinnennan v. Pahn Beach County, 641 So. 2d
523, 526 (Fla. 4th DCA 1994).
[5 S 95. 11(3)(p), Fla. Stat. (2007).
16
2002 when the BOCC rendered its BUD Resolutions, and the cause of action was
timely filed within the four-year statute oflilnitations.
We thus reverse the smmnmy judgment order in its entirety, and remand for
consideration of those factors necessmy to evaluate an as-applied taking specific to
each of the Landowners. It remains for the trial comt to detennine -- for each of
the propelties -- what, if any, reduction in beneficial use has been sustained by
application of the challenged land use regulation. In detennining to what
compensation, if any, the Landowners are entitled, the court must take into
consideration the reasonable investment-backed expectations of each Landowner
relative to date of purchase (pre- or post-land use regulation)16 and post-BUD
resolution events (sale of propelty, grants of development. pennits, lifting of
moratoria, etc.) that, despite the BOCC's resolutions finding complete dnninution
of value, may have an impact on the type and level of compensation to be granted
to each.
Reversed and remanded with dn'ections.
16 See, Ambrose, 866 So. 2d at 711 ("Momoe County was designated an m'ea of
critical state concem in 1979, but the first land use regulations were not enacted
until 1986. If the Landowners did not start development prior to the enactment of
these land regulations, they acted at their own peril in relying on the absence of
zoning ordinances,").
17