Bensch v. Metropolitan Dade County, No. 88-1073

CourtFlorida District Court of Appeals
Writing for the CourtBefore SCHWARTZ, C.J., BARKDULL, J., and JAMES C. DAUKSCH, Jr.; SCHWARTZ
Citation14 Fla. L. Weekly 993,541 So.2d 1329
Parties14 Fla. L. Weekly 993 Fred and Bonita BENSCH, et al., Appellants, v. METROPOLITAN DADE COUNTY, Ronald Leins, South Florida Water Management District, Appellees.
Decision Date18 April 1989
Docket NumberNo. 88-1073

Page 1329

541 So.2d 1329
14 Fla. L. Weekly 993
Fred and Bonita BENSCH, et al., Appellants,
v.
METROPOLITAN DADE COUNTY, Ronald Leins, South Florida Water Management District, Appellees.
No. 88-1073.
District Court of Appeal of Florida,
Third District.
April 18, 1989.

Mark V. Silverio, Miami, for appellants.

Robert A. Butterworth, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., Stanley J. Niego, Atty., for South Florida Water Management Dist., West Palm Beach, for appellees.

Before SCHWARTZ, C.J., BARKDULL, J., and JAMES C. DAUKSCH, Jr., Associate Judge.

SCHWARTZ, Chief Judge.

The plaintiffs are landowners in an area of the east Everglades. They sued Dade County, the South Florida Water Management District and several governmental employees and officeholders on the ground that various Dade County zoning enactments and flooding instituted by the South Florida Water Management District had together

Page 1330

severely reduced the value of their property. They now appeal from the dismissal of their amended complaint with prejudice. We affirm.

As the plaintiffs acknowledge, the entire basis of their action as against Dade County for both money damages 1 and injunctive relief because of the zoning restrictions is based upon the proposition that a constitutional "taking" of their property has occurred. See Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); Moviematic Indus. v. Board of County Comm'rs, 349 So.2d 667 (Fla. 3d DCA 1977). Fatally to their claim, however, no such taking was properly alleged. This is true for two reasons:

(a) The amended complaint does not assert, 2 as is required to make out such a conclusion, that the zoning regulations deprived the plaintiffs of all beneficial uses, including agricultural ones, of their property. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 129, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631, 652 (1978) ( ["T]he submission that appellants may establish a 'taking' simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable."); Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1031 (3d Cir.1987) (allegation of denial of "economically viable use of ... property" does not demonstrate that a taking occurred), cert. denied, U.S. , 107 S.Ct. 2482, 96 L.Ed.2d 375 (1987); Florida Audubon Soc'y v. Ratner, 497 So.2d 672, 675 (Fla. 3d DCA 1986) ("A taking occurs only where an owner is deprived of all reasonable and beneficial use of the property involved."), review denied, 508 So.2d 15 (Fla.1987); Garden State Properties, Inc. v. Dade County, 410 So.2d 655 (Fla. 3d DCA 1982); City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 554 (Fla.1967)...

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7 practice notes
  • Treister v. City of Miami, No. 86-1117-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 13, 1992
    ...is constitutionally required. The Third District noted that in the footnote in the Bensch case Bensch v. Metropolitan Dade County, 541 So.2d 1329, 1330 n. 1 (Fla. 3d DCA), review denied, 549 So.2d 1013 (1989) at 1330 of the opinion. They said that the apparent holding of the United States S......
  • Bensch v. Metropolitan Dade County, No. 90-0252-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 16, 1996
    ...1986 for ripeness problems. The parties have been involved in state litigation for several years, see Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), review denied, 549 So.2d 1013 6. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh ......
  • VLX Properties, Inc. v. Southern States Utilities, Inc., No. 96-1026
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 1997
    ...County, 343 So.2d 965 (Fla. 1st DCA 1977); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Bensch v. Metropolitan Dade Co., 541 So.2d 1329 (Fla. 3d DCA 1989), rev. denied, 549 So.2d 1013 (Fla.1989); Dudley v. Orange County, 137 So.2d 859 (Fla. 2d DCA 1962), appeal dis'd, 146 S......
  • SOUTH FLORIDA WATER v. Basore of Florida, No. 97-3941.
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1998
    ...v. Steadman Stahl P.A., Pension Fund, 558 So.2d 1087 (Fla. 4th DCA), rev. denied, 574 So.2d 143 (Fla.1990); Bensch v. Metro. Dade County, 541 So.2d 1329, 1330 (Fla. 3d DCA The parties in this case agreed in the trial court that this line of cases should not be applied. Nevertheless, it appe......
  • Request a trial to view additional results
7 cases
  • Treister v. City of Miami, No. 86-1117-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 13, 1992
    ...is constitutionally required. The Third District noted that in the footnote in the Bensch case Bensch v. Metropolitan Dade County, 541 So.2d 1329, 1330 n. 1 (Fla. 3d DCA), review denied, 549 So.2d 1013 (1989) at 1330 of the opinion. They said that the apparent holding of the United States S......
  • Bensch v. Metropolitan Dade County, No. 90-0252-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 16, 1996
    ...1986 for ripeness problems. The parties have been involved in state litigation for several years, see Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), review denied, 549 So.2d 1013 6. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh ......
  • VLX Properties, Inc. v. Southern States Utilities, Inc., No. 96-1026
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 1997
    ...County, 343 So.2d 965 (Fla. 1st DCA 1977); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Bensch v. Metropolitan Dade Co., 541 So.2d 1329 (Fla. 3d DCA 1989), rev. denied, 549 So.2d 1013 (Fla.1989); Dudley v. Orange County, 137 So.2d 859 (Fla. 2d DCA 1962), appeal dis'd, 146 S......
  • SOUTH FLORIDA WATER v. Basore of Florida, No. 97-3941.
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1998
    ...v. Steadman Stahl P.A., Pension Fund, 558 So.2d 1087 (Fla. 4th DCA), rev. denied, 574 So.2d 143 (Fla.1990); Bensch v. Metro. Dade County, 541 So.2d 1329, 1330 (Fla. 3d DCA The parties in this case agreed in the trial court that this line of cases should not be applied. Nevertheless, it appe......
  • Request a trial to view additional results

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