Boca Ctr. at Military, LLC v. City of Boca Raton

• Citation: 312 So.3d 920
• Decision Date: 03 February 2021
• Docket Number: No. 4D19-2736,4D19-2736
• Parties: BOCA CENTER AT MILITARY, LLC, a foreign limited liability company, CP OTC, LLC, a foreign limited liability company, and CP Boca Plaza, LLC, a foreign limited liability company, Appellants, v. CITY OF BOCA RATON, Appellee.
• Court: Florida District Court of Appeals

312 So.3d 920

BOCA CENTER AT MILITARY, LLC, a foreign limited liability company, CP OTC, LLC, a foreign limited liability company, and CP Boca Plaza, LLC, a foreign limited liability company, Appellants,

v.CITY OF BOCA RATON, Appellee.

No. 4D19-2736

District Court of Appeal of Florida, Fourth District.

[February 3, 2021]

Henry B. Handler, William J. Berger, and David K. Friedman of Weiss, Handler & Cornwell, P.A., Boca Raton, for appellants.

Laura K. Wendell and Daniel L. Abbott of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellee.

Forst, J.

Appellants Boca Center at Military, LLC, CP OTC, LLC, and CP Boca Plaza, LLC, the owners of several properties within the Midtown area of Boca Raton ("the subject properties"), appeal from the trial court's final order dismissing with prejudice their cause of action against Appellee, the City of Boca Raton ("the City"). Appellants’ complaint alleged that the City's actions inordinately burdened their existing use of the subject properties so as to require compensation under the Bert J. Harris Jr. Private Property Rights Protection Act, section 70.001, Florida Statutes (2018) ("the Bert Harris Act" or "the Act").

The City responded that: (1) Appellants had not satisfied the Act's pre-suit notice requirements because they had changed their theory of recovery and alleged new claims in their complaint as opposed to those delineated in their pre-suit "Notice of Claim"; (2) no law or regulation had been "applied" to the subject properties (because the City had failed to either provide notice of the law's enactment or formally deny a written request submitted by the property owners for development or variance); and (3) the City did not take an action that burdened an existing use of the subject properties. The trial court agreed with the City on all three grounds, and dismissed Appellants’ complaint with prejudice.

We need not address the trial court's decision to dismiss the complaint with prejudice as it relates to the failure to satisfy the pre-suit notice requirements or to the failure to establish that a law or regulation had been "applied" to the subject properties. As we conclude that dismissal of Appellants’ complaint with prejudice was appropriate with respect to their contention that the City took actions which newly burdened an existing use of the subject properties, and that an amended complaint on this point would be futile, we affirm.

Background

As noted above, the properties that are the subject of this litigation are located within the Midtown area of the City. Before 2010, Midtown was zoned for office, commercial and retail development, and had, in fact, been used only for these purposes. In 2010, the City amended its Comprehensive Plan to assign the area in which the subject properties were located a Planned Mobility ("PM") future land use designation, which "may incorporate in addition to those permitted and conditional uses authorized by the underlying zoning district regulations [already] in effect ... a range of uses such as commercial, office, financial institutions, health care, residential , hotel, recreational, educational, community and cultural facilities." (emphasis added). Despite this amendment to the City's Comprehensive Plan, no actions were taken to change the actual zoning of this area.

In 2014, four years after the City amended the comprehensive plan to include a PM designation, Appellants acquired and became the owners of the subject properties. At the time, there were no zoning regulations in place permitting residential use on the properties at any level of density.

In early 2018, the City voted to postpone indefinitely the consideration of supplemental land development regulations ("LDRs"). Such zoning regulations, if adopted, would for the first time have allowed multi-family residential development on the subject properties. This action (or inaction) led Appellants to file pre-suit Notices of Claim, pursuant to section 70.001(4)(a). These Notices alleged that the City's decision to postpone enactment of LDRs "inordinately burdened" the subject properties. In response, the City informed Appellants that, "notwithstanding that the City has taken no ‘action’ required for [Appellants] to state a claim under the Act, the City hereby offers ‘no changes to the action of the government entity.’ " Appellants then filed their original Bert Harris Act complaint against the City, in October 2018.

In January 2019, the City adopted new zoning regulations for the Midtown area (including the area encompassed by the subject properties), which reinforced its decision not to rezone for residential occupancy. These regulations maintained the same zoning as had pre-existed the Comprehensive Plan amendment. Specifically, the regulations continued to allow for commercial, office and retail use of the subject properties but did not provide for residential development.

Addressing the City's recent actions and its motion to dismiss Appellants’ original complaint, an amended complaint was filed in April 2019. After recounting the City's actions/inaction since the 2010 Comprehensive Plan amendment, the complaint alleged:

The City's actions alleged in the Amended Complaint inordinately burden an "existing use" of the Subject Properties ("existing use" defined as in § 70.001(3)(b) 2., Fla. Stat.) in that, by them, the City has directly restricted or limited the use of the Subject Properties such that Plaintiffs are permanently unable to attain the reasonable, investment-backed expectation for the existing use of the Subject Properties as a whole or that Plaintiffs are left with existing or vested uses that are unreasonable such that Plaintiffs bear permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

The City's actions prevent Plaintiffs from receiving the benefit of the more favorable residential use applicable to the PM land use designation and inordinately burden the Subject properties.

The City filed a motion to dismiss the amended complaint. The trial court, in a detailed order, granted the motion, dismissing the amended complaint with prejudice. This appeal followed.

Analysis

A trial court's ruling on a motion to dismiss is subject to de novo review. See, e.g. , Pillay v. Public Storage , 284 So. 3d 566, 568 (Fla. 4th DCA 2019) ("Orders granting motions to dismiss for failure to state a claim are reviewed de novo.") (citing Regis Ins. Co. v. Miami Mgmt., Inc. , 902 So. 2d 966, 968 (Fla. 4th DCA 2005) ); M & H Profit, Inc. v. City of Panama City , 28 So. 3d 71, 74 (Fla. 1st DCA 2009) ("We consider whether the trial court's order dismissing the case for failure to state a cause of action is correct as a matter of law.").

Determinations under the Bert Harris Act that a claimant has an existing use of the real property are conclusions of law and we review such conclusions de novo. City of Jacksonville v. Coffield , 18 So. 3d 589, 594 (Fla. 1st DCA 2009).

The Bert Harris Act "provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state ... unfairly affects real property." § 70.001(1), Fla. Stat. (2018). The Act expressly states that it is predicated on "specific action of a governmental entity [that] has inordinately burdened an existing use of a real property or a vested right to a specific use of real property ...." § 70.001(2), Fla. Stat. (2018). For purposes of the Bert Harris Act, "[t]he term ‘action of a governmental entity’ means a specific action of a governmental entity which affects real property, including action on an application or permit." § 70.001(3)(d), Fla. Stat. (2018) (emphasis added). "[I]nordinate burden" and "inordinately burdened" are defined as "an action of one or more governmental entities [that] has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property ...." § 70.001(3)(e) 1., Fla. Stat. (2018) (emphasis added).

Thus, by its express terms, the Act protects against governmental action rather than government inaction . Specifically, ...