Bochese v. Town of Ponce Inlet

Decision Date07 April 2005
Docket NumberNo. 04-11542.,04-11542.
Citation405 F.3d 964
PartiesAlfred L. BOCHESE, Plaintiff-Appellant, v. TOWN OF PONCE INLET, a municipal corporation organized under the laws of the State of Florida, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Paul Michael Meredith, Paul M. Meredith, P.A., St. Augustine, FL, for Plaintiff-Appellant.

Ernest H. Kohlmyer, III, Michael J. Roper, Bell, Leeper & Roper, P.A., Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Appellant Alfred L. Bochese brought this suit against the Town of Ponce Inlet ("the Town" or "Ponce Inlet") challenging, under 42 U.S.C. § 1983, the Town's rescission of a contract it had entered into with a private developer for the construction of an oceanfront condominium complex. In essence, Mr. Bochese claimed that rescinding the contract violated his First Amendment free speech, Fourteenth Amendment due process, Fourteenth Amendment equal protection, and Article I, § 10 contract rights. The district court granted summary judgment for the Town. It is from this judgment that Mr. Bochese now appeals. Although the parties have not raised the issue here, we are obliged to consider, sua sponte, the question of our subject matter jurisdiction to hear the case before us. After thorough review, we conclude that Mr. Bochese lacks constitutional standing to challenge the rescission of the contract between the Town and the developer, since he was neither a party to nor an intended beneficiary of that agreement, and therefore lacks a legally enforceable interest in that contract. In short, we do not have the power to entertain the appeal.


The essential facts are these. Appellant Bochese has owned a single-family residence on an oceanfront lot in the Town of Ponce Inlet since at least November 8, 1983. Ponce Inlet, an incorporated municipality, was originally chartered in 1963, at which time its charter contained no zoning provisions. Over time, the Town enacted various zoning regulations; the following chronology highlights those salient to this case.

In 1983, the Town Council, Ponce Inlet's governing body, proposed an amendment to the Town Charter to establish a maximum height of 35 feet for all buildings. The amendment was approved by referendum in the Town's November election, and the Town Charter was amended to contain the provision: "Buildings within the Town of Ponce Inlet shall be limited to a maximum height of thirty-five (35) feet." This amendment contained no exemptions to or exclusions from the 35-foot height limit. R. 93, Ex. 58.1

In May 1984, the Town Council adopted Ordinance 84-11, creating certain exceptions to the charter amendment's 35-foot height limit. Ordinance 84-11 stated that the limitation would not apply to properties zoned "T-1" ("Tourist Accommodation") or "PUD" ("Planned Unit Development") as of November 8, 1983. The ordinance further provided that PUD-zoned property "may be developed under the terms and provisions of applicable P.U.D. agreements between the Town and property owner, or developer of property classified P.U.D. as of November 8, 1983." The ordinance explained that it was the "interpretation of the Town Council that the charter amendment adopted by the electors does not require that all property presently zoned to permit buildings of a height in excess of thirty-five (35') shall be restricted in the future to prohibit buildings of a height no greater than thirty-five (35') feet." R. 93, Ex. 17. Subsequently, in November, 1985, the Town enacted Ordinance 85-27, which left Ordinance 84-11 intact, but established a maximum building height of 70 feet for all properties exempt from the 35-foot building height limit. R.93, Ex. 83, 7.

In July 1986, the Town adopted the third relevant Ordinance, 86-12, approving a Development Agreement with the predecessors of Ponce Lighthouse Properties, Inc. ("PLPI"). R. 93, Ex. 83, 8. The Development Agreement, signed by the mayor, all members of the Town Council, and the developer, laid out the rules, criteria, and details for a Planned Unit Development (PUD) project. The agreement stated that the Town Charter provision restricting building height to 35 feet did not apply to the PUD. The agreement further specified that the oceanfront section of the PUD would have a maximum building height of 35 feet, while the rest of the property would have a maximum building height of 85 feet. R. 93, Ex. 19.

In 1990, the Town amended and readopted its charter. The new charter set forth the same 35-foot building height limitation, with no exemptions or exceptions. R. 93, Ex. 83, 10.

In February 2001, Ponce Lighthouse Properties, Inc. submitted a Development Review Application to the Town, seeking to include four contiguous 100-foot oceanfront lots in the existing PUD by changing their zoning from T-1 to PUD. Two of the four lots were vacant lots owned by PLPI; one was a residential lot owned by Michael DiFranco; one was a residential lot owned by Appellant Bochese. R. 93, Ex. 34. The Town's Land Development Code requires that at the time of submission of a PUD-related application, the applicant have unified ownership over the entire area within the PUD, which ownership must be maintained until after the recording of the overall development plan. Unified ownership means "under the ownership of one person, whether by deed, agreement for deed or contract for purchase." In its application to the Town, PLPI represented that all four lots "have either been purchased or [are] under contract to be purchased by [PLPI]." R. 93, Ex. 22. In fact, when PLPI submitted its application, PLPI and landowners Bochese and DiFranco had only signed letters titled "Proposal for Acquisition,"each of which stated that it was "not a commitment to purchase or an offer to purchase on the part of PLPI." R. 112, Ex. 1.

Two months later, on April 18, 2001, the Town Council adopted Ordinance 2001-08, which repealed Ordinance 84-11(exempting T-1 and PUD properties from the 35-foot rule) in its entirety and amended the Town's Land Use and Development Code to eliminate all exceptions to the 35-foot building height restriction. R. 93, Ex. 38.

The following month, on May 21, 2001, the Town Council executed the Fourth Amendment to the Development Agreement ("Fourth Contract Amendment"), approving PLPI's request for inclusion of the four additional properties in its PUD. The Fourth Contract Amendment specified that up to 400 feet of PLPI's now-700-foot stretch of oceanfront PUD property (100 feet of which was Mr. Bochese's lot) could be developed with buildings up to 70 feet in height, but limited building height on the remaining 300 feet of the oceanfront property to 35 feet. R. 93, Ex. 37.

Several months later, on August 3, 2001, PLPI executed Purchase and Sale Agreements for both the Bochese and the DiFranco properties. R. 93, Exs. 43 & 44. The Bochese agreement, in substance, gave PLPI an option to purchase the Bochese lot. The agreement included an addendum providing: "The contract is subject to [PLPI] obtaining the necessary approvals from the Town of Ponce Inlet, Florida for the construction of a 70 foot high condominium in a manner and design acceptable to [PLPI] at [PLPI's] sole discretion. In the event [PLPI] has not received said approvals by the closing date, [PLPI] shall have the option to close pursuant to the terms of the contract or terminate this Contract at its sole discretion." The addendum further provided: "As a condition precedent to [PLPI]'s obligation to close, is [PLPI]'s closing with Michael DiFranco ..., either simultaneously with or prior to the closing of this transaction." As consideration for this option to purchase, PLPI placed in escrow a deposit of $25,000, $10,000 of which Mr. Bochese was entitled to retain if PLPI elected not to exercise the option. The contract set a closing date of December 1, 2001. R. 93, Ex. 43.

Apparently believing that PLPI would eventually purchase his property, Mr. Bochese decided to relocate. Within six months of executing the Purchase and Sale Agreement with PLPI, Mr. Bochese purchased real estate, developed building plans, and hired a builder to construct a home on his new lot. R. 44, 11.

In early November 2001, approximately a month prior to the original closing date, PLPI asked Mr. Bochese and Mr. DiFranco for extensions to their purchase agreements. Mr. Bochese agreed, and he and PLPI executed a second addendum to the agreement, extending the closing date to March 1, 2002. This second addendum provided that PLPI would make nonrefundable monthly payments of $1200 to the Bocheses "[a]s consideration for the extension of the closing date." The second addendum also echoed the language of the first, making the Town's approval of a 70-foot condominium in a manner acceptable to PLPI a condition precedent to PLPI's purchase of Mr. Bochese's land. R. 93, Ex. 43.

Mr. DiFranco refused the extension, and his purchase agreement expired as scheduled on December 1, 2001. The expiration of the DiFranco agreement had the effect of destroying PLPI's unified ownership of the PUD property. Shortly thereafter, on December 31, 2001, Mr. DiFranco informed the Town that PLPI no longer had a contract to purchase his property, and requested removal of his property from the PUD by repeal of the Fourth Contract Amendment. R. 93, Ex. 61.

Meanwhile, on December 1, 2001, an amended Town Charter took effect, providing, without exception, that "[b]uilding within the Town of Ponce Inlet shall be limited to a maximum height of thirty-five (35) feet." R. 93, Ex. 83, 14.

Several months after Mr. DiFranco requested removal of his property from the PUD, the Town Council held a public meeting on the subject. PLPI and Mr. Bochese both addressed the...

To continue reading

Request your trial
536 cases
  • Tokyo Gwinnett, LLC v. Gwinnett County, Georgia
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 11, 2019
    ...we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none.’ " Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 200......
  • Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd.
    • United States
    • U.S. District Court — Southern District of Florida
    • August 31, 2020 the outset of any case." Corbett v. Transp. Sec. Admin. , 930 F.3d 1225, 1232 (11th Cir. 2019) (citing Bochese v. Town of Ponce Inlet , 405 F.3d 964, 974 (11th Cir. 2005) ), cert. denied , ––– U.S. ––––, 140 S. Ct. 900, 205 L.Ed.2d 467 (2020). "In its absence, ‘a court is not free to opi......
  • D.C. Appleseed Ctr. for Law & Justice, Inc. v. Dist. of Columbia Dep't of Ins.
    • United States
    • D.C. Court of Appeals
    • September 13, 2012
    ...question which must be addressed prior to and independent of the merits of a party's claims' ” (quoting Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.2005))). Appleseed argues that it has standing to petition for review of the Commissioner's order because it has suffered an in......
  • Sierra Club v. Tennessee Valley Authority, 04-15324.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 22, 2005
    ...because "we are obliged to consider questions of standing regardless of whether the parties have raised them." Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.2005). We decide standing issues de novo. Id. The basics are familiar. An individual plaintiff has standing under the Co......
  • Request a trial to view additional results
1 firm's commentaries
  • Fifth Circuit Antitrust Ruling Misinterprets FRAND's Purpose
    • United States
    • JD Supra United States
    • May 5, 2022
    ...Third-party beneficiary analysis implicates standing in identifying a "legally cognizable interest." Bochese v. Town of Ponce Inlet , 405 F.3d 964, 984 (11th Cir. 2005). Continental's complaint was premised on Sherman Act violations as well breach of contracts, each of which would constitut......
1 books & journal articles
  • Appellate Practice and Procedure
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 57-4, June 2006
    • Invalid date
    ...(11th Cir. 2005). 66. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1351 (11th Cir. 2005); Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). rulings on personal jurisdiction;67 rulings regarding Eleventh Amendment immunity;68 the immunity of a foreign soverei......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT