Dean Wish, LLC v. Lee Cnty.
| Decision Date | 06 October 2021 |
| Docket Number | No. 2D19-4843,2D19-4843 |
| Citation | 326 So.3d 840 |
| Parties | DEAN WISH, LLC, Appellant, v. LEE COUNTY, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Chance Lyman and Hala A. Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for Appellant.
Jay J. Bartlett and Jeffrey L. Hinds of Bartlett Loeb Hinds & Thompson, P.A., Tampa; and Richard Wm. Wesch, Lee County Attorney, Fort Myers, for Appellee.
BY ORDER OF THE COURT:
Upon consideration of appellant's motion for clarification, appellee's response, and the parties’ supplemental briefing:
IT IS ORDERED that the motion for clarification is granted to the extent that the opinion dated April 7, 2021, is withdrawn and the attached opinion is substituted therefor.
No further motions will be entertained.
"Many high-stakes cases turn on ... narrow linguistic questions." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 141 (1st ed. 2012). This is such a case.
Dean Wish, LLC, challenges the final summary judgment rejecting its claim under the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (2016) (the Act). See Fla. R. App. P. 9.030(b)(1)(A) (). The claimant must be the legal title holder to be entitled to relief under the Act. Because Dean Wish no longer holds legal title to the property at issue, we affirm.1
Starting some forty years ago, Edward Dean and others began buying contiguous2 parcels of land on Pine Island in Lee County, Florida, "for farming and eventual sale for residences." Much of the land was zoned for agricultural use and included a "Rural" future land use designation that allowed a residential density of one dwelling unit per acre (1 du/1 acre) under the Lee County Comprehensive Plan. The remaining land was designated as either "Outlying Suburban" or "Wetlands" future use.
In 2003, Lee County changed the "Rural" designation to "Coastal Rural," a designation that decreased density to one dwelling unit per every ten acres (1 du/10 acres). At the time, Mr. Dean, along with other individuals and entities, had accumulated about fifty-five parcels, comprised of about 640 acres. Mr. Dean and another entity sued Lee County in November 2006 under the Act, based upon the alleged inordinate burden the "Coastal Rural" designation imposed upon the land. See § 70.001. The trial court dismissed the lawsuit because the claim was not ripe; the density reduction had not yet been applied to the allegedly affected landowners.
The land changed hands many times over the years. Ultimately, in 2010, Mr. Dean and Gary Wishnatzki formed Dean Wish. The company bought the fifty-five parcels. Then on May 18, 2015, Dean Wish submitted a development application to Lee County. Dean Wish sought an administrative increase in the standard maximum density for the "Coastal Rural" lands and for a permit for 336 dwelling units over its 640 acres (about 1 du/1.9 acres). See Lee County, Fla., Land Dev. Code ch. 33, art. III, div. 5, §§ 33-1051, 33-1052 (2015). Dean Wish included all of its parcels in its application, although the requested density increase was for the "Coastal Rural" lands.
In November 2015, Lee County's Zoning Division responded that it was not authorized to administratively approve the application. It suggested that Dean Wish "submit an application for a planned development consistent with the Land Development Code or an appropriate amendment to the Lee Plan." Then, in 2016, Lee County amended the Plan, setting the density of the "Coastal Rural" lands to one dwelling unit per 2.7 acres (1 du/2.7 acres).
Dean Wish presented Lee County with its notice of claim under the Act in August 2016. It also submitted an appraisal asserting a monetary loss exceeding $9 million. Dean Wish rejected a settlement offer from Lee County. It sued Lee County the following January.
Lee County moved to dismiss the lawsuit. Dean Wish filed an amended complaint. Lee County, again, moved to dismiss. It argued that Dean Wish failed to provide a valid presuit appraisal because the appraisal included parcels not subject to the "Coastal Rural" density reduction and not directly impacted by government action. Lee County relied on Turkali v. City of Safety Harbor , 93 So. 3d 493 (Fla. 2d DCA 2012). Dean Wish responded that Lee County and the Act required it to include all fifty-five parcels because it owned all of the contiguous property and all the parcels were part of the single 336-unit development plan. See § 70.001(3)(g) ( ).
The trial court rejected Lee County's position, finding Turkali inapposite because it "dealt with an owner ‘bundling’ his property with those of other owners in order to present a claim." See Turkali , 93 So. 3d at 495. The trial court found the appraisal valid because it included only property that Dean Wish owned, and Dean Wish only alleged damages stemming from "the loss in residential density of [its] Rural/Coastal Rural property." The trial court denied Lee County's motion without prejudice "to raise the issue upon presentation of additional countervailing evidence by subsequent motion for summary judgment, or at trial."
Lee County raised the appraisal issue in a subsequent summary judgment motion. Dean Wish—citing section 70.001(3) —countered that, as the trial court had previously ruled, it owns all the parcels and was not seeking damages for non-Coastal Rural parcels. Dean Wish maintained that the issue remained a fact question inappropriate for summary judgment.
(Emphasis added.)
Following the sale, Lee County filed another summary judgment motion, arguing that Dean Wish could not maintain the lawsuit because the Act required Dean Wish to maintain ownership of the property "until conclusion of the case." Dean Wish responded that the operative time for measuring ownership was when Lee County imposed the inordinate burden on its property.
The trial court granted Lee County's motion. The trial court agreed that Dean Wish was no longer the "property owner" as defined under section 70.001(3)(f) of the Act, as "the person who holds legal title to the real property."3 The trial court observed:
The [Act] utilizes the present indefinite tense ("holds legal title") in demarcating who is a proper [claimant]. It does not use the past tense ("held legal title") or the past perfect tense ("had held legal title"). As a result, the plain language of the [Act] requires a [claimant] to be the current legal title holder of the property that is the subject of a Bert Harris claim in order to avail itself of the remedies offered by the [Act].
The trial court also relied on Turkali , finding that Dean Wish's inclusion of nonimpacted parcels in its appraisal invalidated its claim. The trial court subsequently entered its final judgment, from which Dean Wish appeals.
We limit our discussion to the first issue framed by Dean Wish: "[M]ay a [claimant] maintain an action under [the Act] where the [claimant] owned the property when it commenced the action but was forced to sell the property prior to trial while reserving the right to collect compensation?" This is an issue of first impression. Dean Wish argues that the Act's plain language requires that a claimant "need only own the property when the government imposes the burden" and that, therefore, the trial court violated the plain language and improperly relied on the rules of statutory construction to frustrate legislative intent. Dean Wish asserts that the trial court's interpretation creates an unreasonable restraint on alienation and amounts to a judicial taking. Dean Wish further asserts that even if the trial court's interpretation were correct, there is still a disputed fact question of whether it remains the "property owner" with legal title based on the corrected warranty deed.
Lee County contends that the trial court was correct: the Act's plain language "affords recovery only to the ‘property owner’ as defined in the Act, which requires the claimant to retain legal title to the subject property until the case is concluded." Lee County also argues that Dean Wish's post hoc retention of rights to money does not amount to an equitable or legal title for it to be a "property owner" under the Act.
We review the order granting summary judgment and issues involving statutory interpretation de novo. Bair v. City of Clearwater , 196 So. 3d 577, 581 (Fla. 2d DCA 2016). "Summary judgment is properly entered only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. (citing Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) ). "[O]nce the...
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