Collins v. Monroe County, 3D07-1603.

• Decision Date: 31 December 2008
• Docket Number: No. 3D07-1603.,3D07-1603.
• Citation: 999 So.2d 709
• Parties: Thomas F. COLLINS and Patricia Collins, Donald Davis; Aurelia Del Valle and Maria Del Valle, Hill Family Investments, Inc.; Richard J. Johnson and Joann C. Johnson; Robert A. Lomrance; Joseph Magrini and Elda S. Magrini; Keith P. Radenhausen; Frank J. Schneider; Mary Ann Ricklin; Rosemary Riordan; Hubert Tost and Marilyn Tost, and Samuel I. Burstyn, P.A., Appellants v. MONROE COUNTY, a political subdivision of The State of Florida, and The State of Florida, Appellees.
• Court: Florida District Court of Appeals

999 So.2d 709

Thomas F. COLLINS and Patricia Collins, Donald Davis; Aurelia Del Valle and Maria Del Valle, Hill Family Investments, Inc.; Richard J. Johnson and Joann C. Johnson; Robert A. Lomrance; Joseph Magrini and Elda S. Magrini; Keith P. Radenhausen; Frank J. Schneider; Mary Ann Ricklin; Rosemary Riordan; Hubert Tost and Marilyn Tost, and Samuel I. Burstyn, P.A., Appellants v. MONROE COUNTY, a political subdivision of The State of Florida, and The State of Florida, Appellees.

No. 3D07-1603.

District Court of Appeal of Florida, Third District.

December 31, 2008.

James S. Mattson, Key Largo; Andrew M. Tobin, Tavernier, for appellants.

Stephen J. Moore and Elizabeth A. Moran, Kansas; Suzanne Hutton, Monroe County Attorney, and Derek V. Howard, Assistant County Attorney; Bill McCollum, Attorney General, and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for appellees.

Before GERSTEN, C.J., and SUAREZ and CORTIÑAS, JJ.

SUAREZ, J.

Thomas F. Collins and Patricia Collins, Donald Davis, Aurelia Del Valle and Maria Del Valle, Hill Family Investments, Inc., Richard J. Johnson and Joann C. Johnson, Robert A. Lomrance, Joseph Magrini and Elda S. Magrini, Keith P. Radenhausen, Frank J. Schneider, Mary Ann Ricklin, Rosemary Riordan, Hubert Tost and Marilyn Tost, and Samuel I. Burstyn, P.A., [collectively, "the Landowners"] appeal from a final order granting summary judgment for the Defendants, Monroe County and the State of Florida, in an inverse condemnation case. The trial court found that there was a facial taking of the properties in question and, as such, each landowner's cause of action was barred by the four-year statute of limitations. We reverse and remand as we find the taking to be an "as-applied" taking and, as such, the statute of limitations had not run.¹

The Landowners own real property in Monroe County. In 1997, the Landowners filed Beneficial Use Determination (BUD) petitions² pursuant to the Monroe County Year 2010 Comprehensive Plan.³ A BUD petition requires an applicant to demonstrate that the comprehensive plan and land development regulations in effect at the time of the BUD application deprive the applicant of all reasonable economic use of the property.⁴ In 2000, the BUD petitions were heard by a Special Master. The record indicates that the County Planning Director recommended that the Special Master find that the properties were rendered unbuildable under the County's Comprehensive Plan and other regulatory considerations, and that the County purchase the properties. The Landowners did not contest that recommendation; the record indicates that they agreed that purchase was the preferred relief. Between 2001 and 2003, the Special Master in each case determined that the Landowners' properties had been deprived of all use and value and, following the County Planning Director's advice, recommended that the County purchase the properties. The Monroe County Board of County Commissioners ("BOCC") reviewed the BUD recommendations, found that each Landowner had been deprived of "all economic use" of his property, and approved the Special Master's recommendations that the County purchase the properties.

Between 2002 and 2004, the BOCC rendered final BUD resolutions for the Landowners.⁵ In 2004, the Landowners filed a complaint against Monroe County for inverse condemnation⁶ seeking just compensation for the alleged permanent constitutional taking of their property.

The County filed a third-party complaint against the State. The Landowners filed a motion for summary judgment as to liability and the County and State filed cross-motions for summary judgment arguing, in part, that the four-year statute of limitations on the Landowners' claims to compensation for regulatory takings began in 1997, on the date they filed their BUD Petitions.⁷ Thus, they argued the limitations period had since expired and the Landowners were barred. Prior to any ruling, the Landowners amended their complaint to seek compensation for both a temporary and permanent taking, and abandoned their motion for summary judgment.

At the initial hearing, the court determined that an "as-applied" taking rather than a "facial" taking had occurred. It then held, however, that the Landowners' claims were not ripe for judicial determination as the Landowners had not applied for and received a final determination from the local government permitting authority as to permissible uses, if any, of their property. The trial court concluded that the Landowners' BUD applications did not constitute the final determination from the local government required to ripen their "as-applied" takings claims. The trial court found that the BUD resolutions were not final determinations of whether or how the properties could be developed.

The successor trial judge set the case for bench trial. After hearing arguments the trial court entered the amended order granting summary judgment in favor of the County and the State, which is the subject of this appeal. The trial court determined that the "BUD petitions do not constitute the meaningful applications necessary to ripen an as-applied taking claim," and that, "the claims must be treated in this case as facial takings claims." The trial court order concluded that, as the taking was a facial taking and, as the Landowners did not file their facial takings claims within four years of the adoption of the complained-of 1996 Monroe County Year 2010 Comprehensive Plan, their inverse condemnation suit filed in 2004 was barred by the statute of limitations.

Our review must necessarily begin with determining whether there has been a facial taking as found by the trial court or an as-applied taking because the dates of those events will fix the start of the limitations period in relation to the date of the Landowners' filing suit. There is an important distinction between the two types of claims and each raises different ripeness and statute of limitations issues.

A facial taking, also known as a per se or categorical taking, occurs when the mere enactment of a regulation precludes all development of the property, and deprives the property owner of all reasonable economic use of the property. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (holding that the deprivation of economic value required for a facial takings claim is limited to the extraordinary circumstance when no productive or economically beneficial use of the land is permitted). Anything less than a complete elimination of economically beneficial use or value of the land is not a facial taking. Lucas, 505 U.S. at 1019-20 n. 8, 112 S.Ct. 2886; Taylor v. Village of North Palm Beach, 659 So.2d 1167, 1170-71 (Fla. 4th DCA 1995) (holding that the standard of proof for a facial taking is whether the regulation at issue has resulted in deprivation of all economic use); Golf Club of Plantation, Inc. v. City of Plantation, 717 So.2d 166, 170 (Fla. 4th DCA 1998) (overview of federal takings analysis). The Supreme Court has recognized that "facial takings challenges face an uphill battle since it is difficult to demonstrate that mere enactment of a piece of legislation deprived the owner of all `economically viable use of [his] property.'" Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997).

In an as-applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of property. Taylor, 659 So.2d at 1167. The standard of proof for an as-applied taking is whether there has been a substantial deprivation of economic use or reasonable investment-backed expectations. See generally Penn Central Transp. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (considering the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action; diminution in the property value alone cannot establish a taking); Taylor, 659 So.2d at 1167. The question presented is whether the record shows that the Landowners were deprived by the enactment of the 2010 Comprehensive Plan of all economic use of their property, which amounts to a facial taking, or were deprived of substantial use of their property, but left with some economic value, which is an as-applied taking.

The record shows that the enactment of the regulation did not deprive the Landowners of all reasonable economic use of their property.⁸ There is evidence in the record that a subset of the Landowners received post-BUD building permits, or even sold their property.⁹ This is strong evidence that those particular properties did, in fact, have development value, that the value of those properties was not completely eliminated by application of the 2010 Comprehensive Plan, and contradicts the findings of the Special Master and the BOCC that a facial taking occurred.

The Landowners who have sold their property since the BOCC BUD resolutions have chosen to recoup their investment privately; again showing that the value of the property was not totally eliminated by enactment of the 2010 Comprehensive Plan. These Landowners have received compensation and their individual causes of action for a constitutional taking may be moot. See, City of Winter Park v. Rich, 692 So.2d 986 (Fla. 5th DCA 1997) (holding that plaintiff who sold property at issue lacked standing to challenge city's denial of variance to build on lot, absent allegation that he sold lot for less than fair value due to denial of variance, rendering his claim moot). To receive additional compensation from the County as part of the current takings action would be a...