City of Riviera Beach v. Shillingburg
| Decision Date | 16 August 1995 |
| Docket Number | No. 93-1981,93-1981 |
| Citation | 659 So.2d 1174 |
| Parties | 20 Fla. L. Weekly D1834 CITY OF RIVIERA BEACH, a Florida municipal corporation, incorporated under the laws of the State of Florida, Appellant, v. John T. SHILLINGBURG and Joan B. Taylor, Appellees. |
| Court | Florida District Court of Appeals |
Andrew DeGraffenreidt, III, Riviera Beach, for appellant.
Luther M. Taylor, Palm Beach Gardens, and Michael J. Ryan, Minneapolis, MN, for appellees.
Nancie G. Marzulla and Leonard A. Leo, Washington, DC, for amicus curiae-defenders of Property Rights.
David J. Russ, Tallahassee, for amicus curiae-Department of Community Affairs.
The City of Riviera Beach (Riviera Beach) appeals the trial court's determination of a regulatory taking of landowners' submerged lands. We reverse because the enactment of the comprehensive land use plan did not per se deprive landowners of their property without just compensation and landowners' as-applied challenges are not ripe for review.
The subject of the claimed regulatory takings are two strips of submerged land running from Singer Island and extending into the Intracoastal waterway separately owned by appellees John Shillingburg and Joan Taylor and located within the corporate limits of the City of Riviera Beach. Although the trial court's order deals solely with the submerged lands, for each property owner, the submerged land is part of a larger parcel of property.
John Shillingburg (Shillingburg) initially purchased his property in 1977. The first parcel consists of: 1) uplands east of A1A where he has his residence; 2) another area of uplands between A1A and Lake Worth (the Intracoastal waterway); and 3) the submerged land which extends out into the intracoastal in a strip 50 feet wide by 3,000 feet long. In 1987, Shillingburg purchased an adjacent 50 foot wide parcel of submerged land, also 3,000 feet long, so that the submerged land portion of his property comprises a strip measuring 100 feet by 3,000 feet.
The other property owner, Joan Taylor (Taylor), acquired legal title to her property in 1985 and holds title for herself (50%) and for Francis T. Ryan and Virginia L. Ryan (50%). The trial court found that from 1971 to the present, Taylor has had an equitable interest in the property presumably because a portion of the property was previously owned by her husband, Luther M. Taylor. As in the case of Shillingburg, the Taylor submerged land is part of a larger parcel comprised of two upland parcels separated by a strip of submerged land 100 feet wide by 3,000 feet long, running east to west at the bottom of Lake Worth. One part of the larger parcel known as Little Munyon Island is within the jurisdiction of North Palm Beach and is the subject of our opinion in Taylor v. North Palm Beach, 659 So.2d 1167 (Fla. 4th DCA 1995).
The trial court found that both the Taylor and Shillingburg submerged lands are of the same general nature in that they are part of a series of subdivided strips of land of various widths running parallel to each other and perpendicular to Singer Island west of A1A extending out to the bulkhead line originally established by Riviera Beach prior to 1967. To the south is single-family residential development built on fill over submerged lands. Just past the submerged lands to the east, across A1A on Singer Island, is some of the most intense high-rise residential real estate development in Palm Beach County. To the north is MacArthur State Park, purchased by the State of Florida for a substantial sum of money consisting of a beach and wetlands east of A1A and wetlands and mudflats west of A1A extending out to Big Munyon Island which is also part of the state-purchased property.
Riviera Beach, as mandated by the Local Government Comprehensive Planning & Land Development Regulation Act, chapter 163, Florida Statutes (1989), adopted a comprehensive land use plan (plan) on December 12, 1989. At the time of the initial submission of the plan by Riviera Beach, the properties owned by landowners within Riviera Beach were zoned as RS-5, which is a single-family residential zoning designation. However, since 1981, the submerged portions of the properties had been the subject of Riviera Beach's comprehensive planning efforts and carried a land use designation of "special preservation." Because the portions of the properties in question are submerged lands, their natural character could not be altered without applying for and receiving permit approval from various state agencies. This has been the case during the entire time Shillingburg and Taylor have owned the submerged lands.
The plan submitted by Riviera Beach indicated that landowners' properties were prospectively intended for residential uses in accordance with the existing zoning. On February 9, 1990, the Department of Community Affairs issued a "Statement of Intent and Notice of Intent" to find the plan not in compliance with the dictates of the Local Comprehensive Planning Act. 1 The Department of Community Affairs expressly advised Riviera Beach to take remedial action to revise the plan "to establish a lower density for areas designated as preservation or utilize other land use strategies or mechanisms that will insure the protection of the referenced environmentally sensitive lands."
In response to these directives, Riviera Beach amended the plan to provide the following:
Special Preservation--mangroves, wetlands, and special estuarine bottom lands. These mangroves and special estuarine bottom lands are protected by federal, State and local agencies involved in the wetlands preservation, dredge and fill permitting, and other hydrological modifications. It is the expressed policy objective of the City to preclude any development of submerged lands, including but not limited to mangroves, wetlands, and estuarine bottom lands, to the maximum extent permissible by law. It is further the policy of the City to oppose any applications for dredge or fill permits pending before applicable State or Federal agencies. This policy objective shall not be construed, nor implemented to impair or preclude judicially determined vested rights to develop or alter submerged lands.
The city shall, upon enactment of this plan, prepare a study of the specific planning and legal issues pertinent to the bottomlands. The research will be designed to determine uses that would be compatible with the city's preservation policies contained in the Coastal Management Element including Objective 1.1 which mandates no loss of the natural shoreline bordering the estuary.
(Emphasis added). With the amended language and other changes, the plan was finally approved by the Department of Community Affairs on December 19, 1991.
As a result of the amendment to the land use plan, both Shillingburg and Taylor brought separate actions against Riviera Beach claiming a regulatory taking of their property. These actions were ultimately consolidated. Shillingburg's four-count complaint alleged that he made an application to construct a viewing dock on his submerged land and Riviera Beach had denied his request for a permit. He therefore sought a writ of mandamus directing Riviera Beach to approve his permit for a dock; a declaratory judgment that there had been a taking of his property; and monetary damages for a regulatory taking.
After the complaint was filed and before trial, based on Shillingburg's request for a dock, Riviera Beach proposed an amendment to the plan which allowed "private residential fishing or viewing platforms and docks for nonmotorized boats." Despite the pending proposed amendment which would permit his requested use, Shillingburg maintained at trial that there still had been a taking of his property on grounds that he had planned to put a guest house on the property, but Riviera Beach had orally advised against it which was why he decided to construct a dock.
Taylor's original complaint alleged that she was prohibited from building a dock, a viewing platform or a single family residence as she had been informed that "no docks would be allowed and that no construction of any type would be allowed." At trial her testimony revealed that no application for a permit, development order or for an amendment to the plan had ever been submitted to Riviera Beach for any use, although she contended that her plan was to build a house on stilts over her submerged land. In fact, the architect hired by Taylor to develop architectural plans admitted that no plans had ever been offered Riviera Beach for its review.
Following the non-jury trial, the trial court issued a final judgment finding that neither landowner's complaints were ripe for review. As to the Shillingburg property, the trial court found that Riviera Beach had initiated an amendment to its land use plan to allow the construction of the viewing dock and that the amendment had been approved by Riviera Beach and had been forwarded to the Department of Community Affairs. The trial court then declared that:
[B]ased on the undisputed fact that the Defendant has made no final decision relating to the nature and extent of development that would be permitted on the Plaintiff's property, it cannot be determined by this Court that the regulations of the Defendant as applied to Plaintiff's property are so restrictive as to constitute a taking of Plaintiff's property by the Defendant City of Riviera Beach.
The trial court granted a stay pending a response from the Department of Community Affairs and Riviera Beach's actions in response to the Department of Community Affairs's decision. The parties were instructed to notify the trial court within four months or sooner "if the Department of Community Affairs and the City of Riviera Beach have taken final definitive action with regard to the Plaintiff's application for a viewing dock."
Regarding landowner Taylor's property, the trial court...
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