HomeMy WebLinkAboutItem Q07 Q7
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor James K.Scholl,District 3
The Florida Keys Mayor Pro Tern Michelle Lincoln,District 2
Craig Cates,District 1
David Rice,District 4
Holly Merrill Raschein,District 5
Board of County Commissioners Meeting
March 25, 2025
Agenda Item Number: Q7
2023-3828
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger
N/A
AGENDA ITEM WORDING: Authorization to seek amicus curiae (friend of the court) status in
support of the state agencies in the appeal of the final judgment in Key Haven Associated Enterprises
Inc vs. Dept. of Economic Opportunity, 21-CA-1613, 2nd Circuit of Florida.
ITEM BACKGROUND:
The Florida Department of Environmental Protection (FDEP) and Department of Commerce (formerly
Florida Department Economic Opportunity or FDEO)prevailed in litigation that Key Haven Associated
Enterprises, Inc, had filed against those agencies after FDEP had denied a resource permit to fill five
partially submerged lots on Key Haven. The County had been named as a defendant but dismissed
from the case due to the fact that it was a state agency, not the County which had denied the permit.
The FDEP and FDEO prevailed at the trial court level when the Circuit Court for the Second Judicial
Circuit entered a summary judgment in their favor. Key Have Associated Enterprises has appealed that
decision to the First District Court of Appeal. Since the County has an important interest in the
outcome of the case, the County Attorney recommends that the BOCC authorize him to seek amicus
curiae(friend of the court) status in support of the positions taken by the State on appeal.
The County Attorney met with the acting Solicitor General on March 13, 2025 to discuss this and other
matters. The acting Solicitor General indicated that the State would welcome the County's participation
as an amicus curiae in support of the State's position in this appeal. The City of Marathon and other
Keys local governments have similarly situated lots as to the ones at issue in this case so those
jurisdictions may be asked to join in with the County as additional amici(friends).
PREVIOUS RELEVANT BOCC ACTION:
06-15-22: BOCC held a closed session to discuss the County's strategy when the County was a named
party.
INSURANCE REQUIRED:
No
3788
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Key Haven Enterprises Notice of Appeal 3.13.25.pdf
Key Haven Enterprises Final Summary Judgment.pdf
FINANCIAL IMPACT:
n/a
3789
Filing # 218699813 E-Filed 03/13/2025 09:57:17 AM
SECOND JUDICIAL CIRCUIT COURT
LEON COUNTY, FLORIDA
KEY HAVEN ASSOCIATED
ENTERPRISES, INC.
Plaintiff,
V. CASE NO.: 2021 CA001613
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
AND STATE OF FLORIDA DEPARTMENT
OF ECONOMIC OPPORTUNITY
Defendants.
NOTICE OF APPEAL
NOTICE IS GIVEN that Plaintiff, KEY HAVEN ASSOCIATED
ENTERPRISES, INC, pursuant to Florida Rule of Appellate Procedure
9.110(b), appeals to the Third District Court of Appeal of Florida, the Final
Summary Judgment rendered February 16, 2025, a copy of which is
attached as Exhibit A. The nature of the order is a final order granting
summary judgment in favor of Defendants, STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION and STATE OF
FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY and against
Plaintiff. There are no motions postponing rendition pending in the lower
tribunal.
[Remainder of page intentionally blank]
Page 1 of 2
3790
CERTIFICATE OF SERVICE
hereby certify that on March 13, 2025, this document was filed with
the Clerk through the Florida Courts E-Filing Portal, which will serve all
parties of record in this proceeding.
MOORE BOWMAN & REESE, P.A.
551 N. Cattlemen Road; Ste. 100
Sarasota, FL 34232
(P) 941 .365.3800
(F) 941 .952.1414
By: /s/Ryan C. Reese
S. William Moore, Esq.
Florida Bar No. 157268
bmoore@mbrfirm.com
ksasse@mbrfirm.com
ksewell@mbrfirm.com
Ryan C. Reese, Esq.
Florida Bar No. 113383
rreese@mbrfirm.com
kfernandez@mbrfirm.com
Attorneys for Key Haven
Associated Enterprises, Inc.
Page 2 of 2
3791
20250008080 ELECTRONICALLY RECORDED IN THE PUBLIC RECORDS OF LEON COUNTY, FL
BK- 6031 PG- 1247 02/18/2025 at 04-12 PM GWEN MARSHALL, CLERK OF COURTS
Filing # 216867455 E-Filed 02/16/2025 10:33:37 AM
THE SECOND CIRCUIT COURT, LEON COUNTY, FLORIDA
Key Haven Associated
Enterprises, Inc., Plaintiff,
VS. CASE: 2021CA01613
State Of Florida Department
Of Environmental Protection,
and State Of Florida Department
Of Economic Opportunity, Defendants./
FINAL SUMMARY JUDGMENT
This matter is before the Court on a document entitled "Department of
Economic Opportunity's Motion for Final Summary Judgment" filed October
11, 2014 (the "Motion"). Plaintiff Key Haven Associated Enterprises, Inc.
("Key Haven") filed its written response on November 13, 2024, and by that
same document moved for reconsideration of the court's prior order
denying Key Haven's own prior motion for summary judgment. Defendant
Department of Economic Opportunity (the "Department") filed its reply on
November 26, 2024. The court conducted a hearing on The Department's
Motion on December 4, 2024 and is adequately advised.
Key Haven in essence claims a regulatory taking of five lots -- lots 34, 35,
37, 39, and 40 of Block 5 of the plat of Key Haven Tenth Addition. Key
Haven's claims are barred by operation of the four-year statute of
limitations set forth in section 95.11(3)(o), Florida Statutes — these claims
would likely be barred by a 30-year, if not a 50-year statute of limitations.
DSO's motion is granted and final summary judgment is entered in favor of
Defendants DEO and State of Florida, Department of Environmental
Protection (DEP).
Facts
In 1964 and 1965, Arthur and Betty Lujan ("the Lujans") purchased
approximately 122 acres of submerged "lands" adjacent to Raccoon Key in
Monroe County, Florida from the Board of Trustees of the Internal
Improvement Fund of the State of Florida (the Board) for $300.00 per acre.
7 A 3792
OR BK- 6031 PG- 1248
On September 18, 1966, the Lujans conveyed title to a portion of the
submerged lands they had purchased from the Trustees to their wholly
owned corporation, Key Haven, the Plaintiff herein.
Key Haven platted a portion of the submerged lands as Key Haven Tenth
Addition (the "Tenth Addition"). Monroe County approved the Tenth
Addition in September 1966. As platted, the Tenth Addition was to consist
of 151 separate lots for single family homes. Key Haven platted a separate
portion of the submerged lands as Key Haven Eleventh Addition, which is
not at issue in this case.
Dredge and fill to convert the submerged lands into the Tenth Addition
commenced at some point after approval of the plat but some of the 151
lots originally planned were abandoned for practical reasons. An amended
plat reflecting the as-built Tenth Addition was recorded on February 5,
1988.
After Key Haven commenced dredge and fill to construct the Tenth
Addition, the Florida Legislature enacted a number of new laws intended to
protect and preserve Florida's water quality and other environmental
assets. Those legislative enactments included:
a. The Florida Water Resources Act of 1972 (chapter 373,
Fla. Stat.);
b. The Florida Environmental Land and Water Management
Act of 1972 (Part 1, H 380.012-380.12, Fla. Stat., in part
establishing Areas of Critical State Concern, § 380.05,
Fla. Stat.);
C. The Water Resources Restoration and Preservation Act
of 1977 (§ 403.0615, et seq., Fla. Stat.);
d. The Florida Coastal Management Act of 1978 (Part 11, §§
380.20-380.25, Fla. Stat.); and
e. The Florida Keys Protection Act of 1979 (§ 380.0552, Fla.
Stat.).
2
3793
OR BK- 6031 PG- 1249
Dredge and fill operations connected to the construction of the Tenth
Addition continued until the end of December 1972, when those operations
were halted by order of State environmental authorities. By then, dredge
and fill of the Tenth Addition was substantially complete, with the exception
of 19 lots (Block 5, lots 24-42) located on the north side of Floral Avenue.
Nine of those unfilled lots (24-32) are encumbered by a 2007 conservation
easement granted by Key Haven to the South Florida Water Management
District as mitigation for additional fill needed to develop nearby property.
The five lots of this litigation (lots 34, 35, 37, 39, and 40 — "The Five Lots")
are among the 10 unfilled lots in the Tenth Addition that are not subject to
the conservation easement.
The State of Florida ordered a halt to the dredging and filling of the Tenth
Addition effective January 1, 1973, relying upon the Water Resources Act
of 1972 and the Florida Environmental Land and Water Management Act of
1972. There is no law or evidence in the record to suggest that these Acts
provided for any exceptions or exemptions to allow Key Haven to complete
dredging and filling the Tenth Addition, or that Key Haven applied for any
exceptions or exemptions.
The Monroe County Board of County Commissioners adopted the initial
Florida Keys Comprehensive Plan (the "1986 Comp. Plan") on February
28, 1986. The Department of Community Affairs (predecessor to DEO as
the State land planning agency) and the Administration Commission of the
State of Florida approved the 1986 Comp. Plan on July 29, 1986.
The 1986 Comp. Plan mandates an "allocated density" and "maximum net
density" of "0" (zero) and an "open space ratio" of 1.0 (100 percent) in
mangrove habitats. The 1986 Comp. Plan mandates open space ratios of
1.0, or 100 percent, in areas of open water and in areas of mangrove and
freshwater wetlands.
The Five Lots are each 60 feet wide by 100 feet in depth. Each contains a
mangrove fringe ranging from 23 to 35 feet in depth. The remainder of each
lot consists of land submerged under open waters of the Gulf of Mexico.
3
3794
OR BK- 6031 PG- 1250
Key Haven took no action to challenge the State Order halting the dredging
and filling of the remaining 19 lots of the Tenth Addition from January 1,
1973 until it applied to DEP for environmental resource permits (ERPs) to
dredge and fill The Five Lots on July 26, 2018.
Legal Analysis
The Florida Environmental Land and Water Management Act of 1972
provided for the creation of Areas of Critical State Concern (ACSC). See §
380.05, Fla. Stat. Upon enactment of the Florida Keys Protection Act of
1979, section 380.0552, Florida Statutes, the Florida Keys were designated
an area of critical state concern.
As required by section 380.0552(5), Florida Statutes, Monroe County
enacted the initial Florida Keys Comprehensive Plan on February 28, 1986.
See, Fla. Stat. § 380.0552(7). The Florida Keys Comprehensive Plan was
approved by the Florida Department of Community Affairs and the
Administration Commission of the State of Florida on July 29, 1986. See,
Fla. Stat. § 380.05(6).
The 1986 Comprehensive Plan prevented any further development of the
Key Haven Tenth Addition. It mandated "0" residential density and 100
percent open space for mangroves, open waters and mangrove and
freshwater wetlands. The 1986 Comprehensive Plan forbade disturbance
of "ground cover, understory, midstory and canopy vegetation. All such
required areas shall be maintained in their natural condition." There is no
exception allow Key Haven to remove the mangrove fringe and fill the open
water portions of the remaining lots of the Tenth Addition.
Subsequent editions of the Monroe County Comprehensive Plan have
maintained the prohibitions against removing mangroves, filling open
waters, and the requirements that mangrove habitats and open waters be
maintained as 100 percent open spaces.
In general, a statute of limitations "runs from the time the cause of action
accrues." § 95.031, Fla. Stat. Inverse condemnation cases are governed by
the catch-all four-year statute of limitations set forth in section 95.11(3)(o),
Florida Statutes. Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.
2d 171, 172 (Fla. 2d DCA 1995). The four-year statute of limitations in an
inverse condemnation case begins to run when the claim becomes ripe.
Hussey v. Collier Cn1y, 158 So. 3d 661, 667 (Fla. 2d DCA 2014); Lost Tree
4
3795
OR BK- 6031 PG- 1251
Village Corp. v. City of Vero Beach, 838 So. 2d 561, 570 (Fla. 4th DCA
2002). A regulatory takings claim is ripe when it becomes clear that the
agency lacks the discretion to permit any development, or the permissible
uses of the property are known to a reasonable degree of certainty.
Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001).
A facial, per se or categorical taking occurs if the mere enactment of a
regulation precludes all development of the property, and deprives the
property owner of all reasonable use of the property. Collins v. Monroe
Cnty, 999 So. 2d 709, 713 (Fla. 3d DCA 2008), citing to Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1017 (1992).
In Lucas, the challenged regulation deprived the owner "of any reasonable
economic use of the lots" and "provided no exceptions." Id. at 1009. Justice
Scalia's majority opinion rejected the argument advanced in Justice
Blackmun's dissent that Lucas's claim was not ripe because he had not
applied to develop his property. Justice Scalia reasoned that application to
develop would have been pointless because no building permit would have
been issued under the subject enactment. Id. at 1012 n. 3; see also Kuhnle
Bros., Inc. v. Geauga, 103 F. 3d 516, 521 (6th Cir. 1997) ("Any deprivation
of property that Kuhnle suffered was fully effectuated when Resolution 91-
87 was enacted, and the statute of limitations began to run at that time.");
Hillcrest Property, LLC v. Pasco Cn1y, 754 F.3d 1279, 1282 (11th Cir.
2014) (facial takings claim accrues upon enactment of statute resulting in
the taking).
"Ripeness doctrine does not require a landowner to submit applications for
their own sake. Petitioner is required to explore development opportunities
on his [property] only if there is uncertainty as to the land's permitted use."
Palazzolo, 533 U.S. at 622. If an agency lacks discretion over an owner's
right to use its land "no occasion exists for applying Williamson County's
requirement that a landowner take steps to obtain a final decision about the
use that will be permitted on a particular parcel." Suitum v. Tahoe Reg.
Planning Agency, 520 U.S. 725, 739 (1997); see also Whitney Benefits,
Inc. v. U.S., 926 F.2d 1169, 1171-72 (Fed. Cir. 1991).
Key Haven claims a "regulatory total taking" of The Five Lots which has
deprived it of "any economic beneficial use or value." Second Amended
Complaint at TT 58, 62. The only factors contributing to the alleged total
taking are the environmental and growth management statutes enacted by
5
3796
OR BK- 6031 PG- 1252
the State of Florida between 1972 and 1979 and the 1986 Comprehensive
Plan which those statutes required Monroe County to adopt.
Any attempt by Key Haven to seek relief from the application of Florida's
1970s environmental laws and Monroe County's resulting 1986
Comprehensive Plan to the five lots would have been futile. Those statutes
and resulting Comprehensive Plans provided no exceptions to the
complete prohibition of the removal of mangroves and the filling of
submerged lands, and DEO, DEP, and their predecessor agencies had no
discretion to allow the development of the five lots at issue in this litigation.
The statute of limitations on Key Haven's "total taking" therefore began to
run as early as 1972 upon enactment of the Florida Water Resources Act
of 1972 and the Florida Environmental Land and Water Management Act of
1972. Those statutes were applied by the State of Florida to halt dredging
and filling of the Tenth Addition effective January 1, 1973. At the latest, the
statute of limitations began to run upon the designation of the Florida Keys
as an Area of Critical State Concern in 1979 and the subsequent State
approval of the 1986 Comprehensive Plan adopted by Monroe County to
implement the principles for guiding development set forth in section
380.0522(7), Florida Statutes. Consequently, Key Haven's claim alleging a
total regulatory taking became time barred no later than July 30, 1990.
For all these reasons it is ORDERED AND ADJUDGED as follows:
1. DEO's Motion for Final Summary Judgment is granted.
2. Final Judgment is entered in favor of Defendants DEO and
DEP and against Key Haven, and DEO and DEP shall go hence without
day.
3. The Court reserves jurisdiction to award costs as may be
allowed under Florida law.
4. Key Haven's Motion for Reconsideration is denied.
It is SO ORDERED AND ADJUDGED in chambers at Tallahassee, Leon
County, Florida this Sunday, February 16, 2025.
6
3797
OR BK: 6031 PG: 1253
37-2021-CA-001 613 02I 6/2025 10:33:33 AM
S WILLIAM MOORE
bmoore@mbrfirm.com
ksasse@mbrfirm.com
ksewell@mbrfirm.com
JACKSON H BOWMAN
jbowman@mbrfirm.com
kfernandez@mbrfirm.com
JEFFREY BROWN
jeffrey.brown@floridadep.gov
syndie.l.kinsey@dep.state.fl.us
dep.defense@dep.state.fl.us
TIMOTHY L NEWHALL
timothy.newhall@myfloridalegal.com
complexlitigation.eservice@myfloridalegal.com
NOAH TEMPLE SJOSTROM
nsjostro@live.com
Derek V Howard
Howard-Derek@MonroeCounty-Fl.gov
Proffitt-Maureen@MonroeCounty-Fl.gov
Ody's Professional Process
ody@odyprocess.com
Peter H. Morris
Morris-Peter@MonroeCounty-FL.Gov
Proffitt-Maureen@MonroeCounty-Fl.Gov
Robert Blake Shillinger Jr.
Shillinger-Bob@monroecounty-fl.gov
William David Chappell
william.chappell@myfloridalegal.com
complexlitigation.eservice@myfloridalegal.com
7
3798
Filing # 216867455 E-Filed 02/16/2025 10:33:37 AM
THE SECOND CIRCUIT COURT, LEON COUNTY, FLORIDA
Key Haven Associated
Enterprises, Inc., Plaintiff,
VS. CASE: 2021CA01613
State Of Florida Department
Of Environmental Protection,
and State Of Florida Department
Of Economic Opportunity, Defendants./
FINAL SUMMARY JUDGMENT
This matter is before the Court on a document entitled "Department of
Economic Opportunity's Motion for Final Summary Judgment" filed October
11, 2014 (the "Motion"). Plaintiff Key Haven Associated Enterprises, Inc.
("Key Haven") filed its written response on November 13, 2024, and by that
same document moved for reconsideration of the court's prior order
denying Key Haven's own prior motion for summary judgment. Defendant
Department of Economic Opportunity (the "Department") filed its reply on
November 26, 2024. The court conducted a hearing on The Department's
Motion on December 4, 2024 and is adequately advised.
Key Haven in essence claims a regulatory taking of five lots -- lots 34, 35,
37, 39, and 40 of Block 5 of the plat of Key Haven Tenth Addition. Key
Haven's claims are barred by operation of the four-year statute of
limitations set forth in section 95.11(3)(o), Florida Statutes — these claims
would likely be barred by a 30-year, if not a 50-year statute of limitations.
DEO's motion is granted and final summary judgment is entered in favor of
Defendants DEO and State of Florida, Department of Environmental
Protection (DEP).
Facts
In 1964 and 1965, Arthur and Betty Lujan ("the Lujans") purchased
approximately 122 acres of submerged "lands" adjacent to Raccoon Key in
Monroe County, Florida from the Board of Trustees of the Internal
Improvement Fund of the State of Florida (the Board) for $300.00 per acre.
3799
On September 18, 1966, the Lujans conveyed title to a portion of the
submerged lands they had purchased from the Trustees to their wholly
owned corporation, Key Haven, the Plaintiff herein.
Key Haven platted a portion of the submerged lands as Key Haven Tenth
Addition (the "Tenth Addition"). Monroe County approved the Tenth
Addition in September 1966. As platted, the Tenth Addition was to consist
of 151 separate lots for single family homes. Key Haven platted a separate
portion of the submerged lands as Key Haven Eleventh Addition, which is
not at issue in this case.
Dredge and fill to convert the submerged lands into the Tenth Addition
commenced at some point after approval of the plat but some of the 151
lots originally planned were abandoned for practical reasons. An amended
plat reflecting the as-built Tenth Addition was recorded on February 5,
1988.
After Key Haven commenced dredge and fill to construct the Tenth
Addition, the Florida Legislature enacted a number of new laws intended to
protect and preserve Florida's water quality and other environmental
assets. Those legislative enactments included:
a. The Florida Water Resources Act of 1972 (chapter 373,
Fla. Stat.);
b. The Florida Environmental Land and Water Management
Act of 1972 (Part I, H 380.012-380.12, Fla. Stat., in part
establishing Areas of Critical State Concern, § 380.05,
Fla. Stat.);
C. The Water Resources Restoration and Preservation Act
of 1977 (§ 403.0615, et seq., Fla. Stat.);
d. The Florida Coastal Management Act of 1978 (Part II, H
380.20-380.25, Fla. Stat.); and
e. The Florida Keys Protection Act of 1979 (§ 380.0552, Fla.
Stat.).
2
3800
Dredge and fill operations connected to the construction of the Tenth
Addition continued until the end of December 1972, when those operations
were halted by order of State environmental authorities. By then, dredge
and fill of the Tenth Addition was substantially complete, with the exception
of 19 lots (Block 5, lots 24-42) located on the north side of Floral Avenue.
Nine of those unfilled lots (24-32) are encumbered by a 2007 conservation
easement granted by Key Haven to the South Florida Water Management
District as mitigation for additional fill needed to develop nearby property.
The five lots of this litigation (lots 34, 35, 37, 39, and 40 — "The Five Lots")
are among the 10 unfilled lots in the Tenth Addition that are not subject to
the conservation easement.
The State of Florida ordered a halt to the dredging and filling of the Tenth
Addition effective January 1, 1973, relying upon the Water Resources Act
of 1972 and the Florida Environmental Land and Water Management Act of
1972. There is no law or evidence in the record to suggest that these Acts
provided for any exceptions or exemptions to allow Key Haven to complete
dredging and filling the Tenth Addition, or that Key Haven applied for any
exceptions or exemptions.
The Monroe County Board of County Commissioners adopted the initial
Florida Keys Comprehensive Plan (the "1986 Comp. Plan") on February
28, 1986. The Department of Community Affairs (predecessor to DEO as
the State land planning agency) and the Administration Commission of the
State of Florida approved the 1986 Comp. Plan on July 29, 1986.
The 1986 Comp. Plan mandates an "allocated density" and "maximum net
density" of "0" (zero) and an "open space ratio" of 1.0 (100 percent) in
mangrove habitats. The 1986 Comp. Plan mandates open space ratios of
1.0, or 100 percent, in areas of open water and in areas of mangrove and
freshwater wetlands.
The Five Lots are each 60 feet wide by 100 feet in depth. Each contains a
mangrove fringe ranging from 23 to 35 feet in depth. The remainder of each
lot consists of land submerged under open waters of the Gulf of Mexico.
3
3801
Key Haven took no action to challenge the State Order halting the dredging
and filling of the remaining 19 lots of the Tenth Addition from January 1,
1973 until it applied to DEP for environmental resource permits (ERPs) to
dredge and fill The Five Lots on July 26, 2018.
Legal Analysis
The Florida Environmental Land and Water Management Act of 1972
provided for the creation of Areas of Critical State Concern (ACSC). See §
380.05, Fla. Stat. Upon enactment of the Florida Keys Protection Act of
1979, section 380.0552, Florida Statutes, the Florida Keys were designated
an area of critical state concern.
As required by section 380.0552(5), Florida Statutes, Monroe County
enacted the initial Florida Keys Comprehensive Plan on February 28, 1986.
See, Fla. Stat. § 380.0552(7). The Florida Keys Comprehensive Plan was
approved by the Florida Department of Community Affairs and the
Administration Commission of the State of Florida on July 29, 1986. See,
Fla. Stat. § 380.05(6).
The 1986 Comprehensive Plan prevented any further development of the
Key Haven Tenth Addition. It mandated "0" residential density and 100
percent open space for mangroves, open waters and mangrove and
freshwater wetlands. The 1986 Comprehensive Plan forbade disturbance
of "ground cover, understory, midstory and canopy vegetation. All such
required areas shall be maintained in their natural condition." There is no
exception allow Key Haven to remove the mangrove fringe and fill the open
water portions of the remaining lots of the Tenth Addition.
Subsequent editions of the Monroe County Comprehensive Plan have
maintained the prohibitions against removing mangroves, filling open
waters, and the requirements that mangrove habitats and open waters be
maintained as 100 percent open spaces.
In general, a statute of limitations "runs from the time the cause of action
accrues." § 95.031, Fla. Stat. Inverse condemnation cases are governed by
the catch-all four-year statute of limitations set forth in section 95.11(3)(o),
Florida Statutes. Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.
2d 171, 172 (Fla. 2d DCA 1995). The four-year statute of limitations in an
inverse condemnation case begins to run when the claim becomes ripe.
Hussey v. Collier Cnty, 158 So. 3d 661, 667 (Fla. 2d DCA 2014); Lost Tree
4
3802
Village Corp. v. City of Vero Beach, 838 So. 2d 561, 570 (Fla. 4th DCA
2002). A regulatory takings claim is ripe when it becomes clear that the
agency lacks the discretion to permit any development, or the permissible
uses of the property are known to a reasonable degree of certainty.
Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001).
A facial, per se or categorical taking occurs if the mere enactment of a
regulation precludes all development of the property, and deprives the
property owner of all reasonable use of the property. Collins v. Monroe
Cnty, 999 So. 2d 709, 713 (Fla. 3d DCA 2008), citing to Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1017 (1992).
In Lucas, the challenged regulation deprived the owner "of any reasonable
economic use of the lots" and "provided no exceptions." Id. at 1009. Justice
Scalia's majority opinion rejected the argument advanced in Justice
Blackmun's dissent that Lucas's claim was not ripe because he had not
applied to develop his property. Justice Scalia reasoned that application to
develop would have been pointless because no building permit would have
been issued under the subject enactment. Id. at 1012 n. 3; see also Kuhnle
Bros., Inc. v. Geauga, 103 F. 3d 516, 521 (6th Cir. 1997) ("Any deprivation
of property that Kuhnle suffered was fully effectuated when Resolution 91-
87 was enacted, and the statute of limitations began to run at that time.");
Hillcrest Property, LLC v. Pasco Cnty, 754 F.3d 1279, 1282 (11th Cir.
2014) (facial takings claim accrues upon enactment of statute resulting in
the taking).
"Ripeness doctrine does not require a landowner to submit applications for
their own sake. Petitioner is required to explore development opportunities
on his [property] only if there is uncertainty as to the land's permitted use."
Palazzolo, 533 U.S. at 622. If an agency lacks discretion over an owner's
right to use its land "no occasion exists for applying Williamson County's
requirement that a landowner take steps to obtain a final decision about the
use that will be permitted on a particular parcel." Suitum v. Tahoe Reg.
Planning Agency, 520 U.S. 725, 739 (1997); see also Whitney Benefits,
Inc. v. U.S., 926 F.2d 1169, 1171-72 (Fed. Cir. 1991).
Key Haven claims a "regulatory total taking" of The Five Lots which has
deprived it of "any economic beneficial use or value." Second Amended
Complaint at ¶¶ 58, 62. The only factors contributing to the alleged total
taking are the environmental and growth management statutes enacted by
5
3803
the State of Florida between 1972 and 1979 and the 1986 Comprehensive
Plan which those statutes required Monroe County to adopt.
Any attempt by Key Haven to seek relief from the application of Florida's
1970s environmental laws and Monroe County's resulting 1986
Comprehensive Plan to the five lots would have been futile. Those statutes
and resulting Comprehensive Plans provided no exceptions to the
complete prohibition of the removal of mangroves and the filling of
submerged lands, and DEO, DEP, and their predecessor agencies had no
discretion to allow the development of the five lots at issue in this litigation.
The statute of limitations on Key Haven's "total taking" therefore began to
run as early as 1972 upon enactment of the Florida Water Resources Act
of 1972 and the Florida Environmental Land and Water Management Act of
1972. Those statutes were applied by the State of Florida to halt dredging
and filling of the Tenth Addition effective January 1, 1973. At the latest, the
statute of limitations began to run upon the designation of the Florida Keys
as an Area of Critical State Concern in 1979 and the subsequent State
approval of the 1986 Comprehensive Plan adopted by Monroe County to
implement the principles for guiding development set forth in section
380.0522(7), Florida Statutes. Consequently, Key Haven's claim alleging a
total regulatory taking became time barred no later than July 30, 1990.
For all these reasons it is ORDERED AND ADJUDGED as follows:
1. DEO's Motion for Final Summary Judgment is granted.
2. Final Judgment is entered in favor of Defendants DEO and
DEP and against Key Haven, and DEO and DEP shall go hence without
day.
3. The Court reserves jurisdiction to award costs as may be
allowed under Florida law.
4. Key Haven's Motion for Reconsideration is denied.
It is SO ORDERED AND ADJUDGED in chambers at Tallahassee, Leon
County, Florida this Sunday, February 16, 2025.
6
3804
37-202'111011-C�A-aw0l0 1�� : 33:33
AM
S WILLIAM MOORE
bmoore@mbrfirm.com
ksasse@mbrfirm.com
ksewell@mbrfirm.com
JACKSON H BOWMAN
jbowman@mbrfirm.com
kfernandez@mbrfirm.com
JEFFREY BROWN
jeffrey.brown@floridadep.gov
syndie.l.kinsey@dep.state.fl.us
dep.defense@dep.state.fl.us
TIMOTHY L NEWHALL
timothy.newhall@myfloridalegal.com
complexlitigation.eservice@myfloridalegal.com
NOAH TEMPLE SJOSTROM
nsjostro@live.com
Derek V Howard
Howard-Derek@MonroeCounty-Fl.gov
Proffitt-Maureen@MonroeCounty-Fl.gov
Ody's Professional Process
ody@odyprocess.com
Peter H. Morris
Morris-Peter@ MonroeC ounty-FL.Gov
Prof fitt-Maureen@MonroeCounty-Fl.Gov
Robert Blake Shillinger Jr.
Shillinger-Bob@monroecounty-fl.gov
William David Chappell
william.chappell@myfloridalegal.com
complexlitigation.eservice@myfloridalegal.com
7
3805