Grosscup v. Pantano

• Decision Date: 22 July 2010
• Docket Number: Case No. 10-10015-CIV.
• Parties: William R. GROSSCUP, Petitioner/Plaintiff, v. Colonel Alfred A. PANTANO, Jr., District Commander for the Army Corps of Engineers, Jacksonville District, United States Army Corps of Engineers, Florida Department of Community Affairs, Florida Department of Environmental Protection, City of Key West, and United States of America, Respondents/Defendants.
• Court: U.S. District Court — Southern District of Florida

725 F.Supp.2d 1370

William R. GROSSCUP, Petitioner/Plaintiff,

v.Colonel Alfred A. PANTANO, Jr., District Commander for the Army Corps of Engineers, Jacksonville District, United States Army Corps of Engineers, Florida Department of Community Affairs, Florida Department of Environmental Protection, City of Key West, and United States of America, Respondents/Defendants.

Case No. 10-10015-CIV.

United States District Court, S.D. Florida.

July 22, 2010.

COPYRIGHT MATERIAL OMITTED.

John Marcus Siracusa, Joseph William Janssen, III, Laurel Ruthanne Wiley, Mark Gerard Keegan, Richard Chambers Valuntas, Rosenbaum Mollengarden Janssen & Siracusa PLLC, West Palm Beach, FL, for Petitioner/Plaintiff.

James Alan Weinkle, United States Attorney's Office, Miami, FL, Jonathan A. Glogau, Attorney General Office, Tallahassee, FL, Michael Thomas Burke, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Respondents/Defendants.

ORDER ON MOTIONS TO DISMISS

JOSE E. MARTINEZ, District Judge.

THIS CAUSE came before the Court upon Defendants, Department of Community Affairs and Department of Environmental Protection's Motion to Dismiss Amended Complaint (D.E. No. 22), Defendant City of Key West's Motion to Dismiss First Amended Complaint (D.E. No. 18), and Federal Respondent/Defendants' Motion to Dismiss First Amended Verified Petition for Writ of Mandamus and Complaint for Declaratory Judgment and Regulatory Taking (D.E. No. 41). This action arises from Petitioner/Plaintiff William R. Grosscup's (“Plaintiff”) attempt to rebuild his home on his property after it was accidentally destroyed by fire on June 14, 2005. (D.E. No. 15 at 3). Plaintiff has filed a Verified Petition for Writ of Mandamus against Respondent Colonel Alfred A. Pantano, Jr. (“Respondent” or “Pantano”), District Commander Commander for the Army Corps of Engineers. Plaintiff has also filed suit against Defendants United States Army Corps of Engineers (“Corps”), Florida Department of Community Affairs (“DCA”), Florida Department of Environmental Protection (“DEP”) and the City of Key West (“City”) for declaratory judgment. In addition, Plaintiff has alleged a claim for a regulatory taking against the DCA, the DEP, the City, and the United States of America (“United States”). Respondent and all Defendants have moved to dismiss the claims asserted against them. After careful consideration and for the reasons set forth below, the Court grants Defendants the DCA, the DEP, and the City's motions to dismiss and grants in part denies in part the motion to dismiss filed by the Corps, the United States, (collectively the “Federal Defendants”), and Pantano.

I. Relevant Factual and Procedural Background

Plaintiff owns property in Key West, Florida consisting of “36,366 square feet of which 2,550 square feet is upland and the balance of which (33,816 square feet) is privately owned submerged land.” (D.E. No. 15 at 3). On June 14, 2005, a fire destroyed Plaintiff's home on this property. Id.

After the fire, Plaintiff began attempting to obtain a permit to build a replacement home on his land. Id. at 4. In July or August of 2005, Plaintiff received a Letter of Permission from the DEP and a permit from the Corps allowing him to replace twenty-six of the wooden pilings, which supported his destroyed home, with concrete pilings. Id. The Corps and the DEP then required Plaintiff to modify his initial permit before he could begin construction on his new home. Id. On February 23, 2006, Plaintiff submitted his modified initial joint permit application, which included the engineering plans for a design known as Plan A, to the Corps. Id.

On May 19, 2006, the DCA objected to the Plan A design. Id. Shortly thereafter, the Corps denied Plaintiff's Plan A permit application without prejudice based on the DCA's objections. Id. at 5. Plaintiff then filed a “Request for Relief” with the DCA pursuant to section 70.51 of the Florida Statutes, arguing that the DCA's objections were without merit. Id. On September 15, 2006, the DEP also denied Plaintiff's permit based on the DCA's objections and other issues relating to water quality. Id. On November 16, 2006, Plaintiff filed a “Request for Relief” with the DEP pursuant to section 70.51 of the Florida Statutes and a “180 Notice of Claim” with the DEP and the DCA pursuant to section 70.0001 of the Florida Statutes. Id. at 6. On May 17, 2007, Plaintiff filed a “Bert Harris lawsuit” ¹ against the DCA and the DEP in Monroe County Circuit Court, arguing that “the DCA and [the] DEP's actions and omissions, including but not limited to, their application of land development regulations to ... [Plaintiff's] property caused an inordinate burden to ... [Plaintiff's] existing and vested rights within the meaning of Section 70.0001, Florida Statutes.” Id. Plaintiff, the DCA, and the DEP eventually entered into a settlement agreement relating to this lawsuit. Id. Under this agreement, Plaintiff could fill a portion of his submerged lands, giving him a place to build his new home, and in consideration of this, the DEP would receive a conservation easement over the rest of Plaintiff's submerged lands. Id.

Pursuant to this agreement, Plaintiff redesigned his plan and prepared a new joint permit application. Id. at 6-7. On June 11, 2008, Plaintiff submitted this plan, known as Plan B, ² and his new permit application to the DEP and the Corps. Id.

Next, Plaintiff attempted to negotiate a developer agreement with the Interim City Planner for Key West, Amy Kimball-Murley. Id. at 7. Plaintiff alleges, however, that she refused to negotiate in good faith and instead required that he “among other things” obtain “a number of variances before he would be entitled to rebuild his home, some of which were unobtainable.” Id. On June 6, 2008, Plaintiff appealed the City Planner's decision to the Board of Adjustment for Key West. Id. at 8.

The Key West City Attorney, however, instructed the City Clerk not to agenda Plaintiff's Notice of Appeal, and on October 24, 2008, Plaintiff served his section 70.001 “180 day Notice of Claim on Key West.” Id. On November 3, 2008, Plaintiff filed a Verified Petition for Writ of Mandamus against Key West in the Monroe County Circuit Court seeking to compel the City Attorney and the City Clerk to place his appeal on the agenda of the Board of Adjustment. Id.

On January 5, 2009, the Corps sent Plaintiff a letter stating that his application based his Plan B was deemed withdrawn ³ because Plaintiff allegedly failed to provide certain requested additional information. Id.; (D.E. No. 15, Exh. 9 at 1-2).

Plaintiff disagreed with this action taken by the Corps, and the reasons the Corps stated for the withdrawal of his application. (D.E. No. 15 at 9-10). Plaintiff filed an Administrative Request for Appeal with the South Atlantic Division of the Corps based on this letter withdrawing his application. Id. at 10. The Corps denied the appeal, stating that the withdrawal of a permit application was not an appealable action under 33 C.F.R. § 331.2. Id.; (D.E. No. 15, Exh. 12). On April 28, 2009, Plaintiff filed another new joint permit application with the DEP and the Corps based on a new design known as Plan C. ⁴ (D.E. No. 15 at 11). ⁵

Plaintiff states that on May 19, 2009 the City “issued its final ripeness decision” to Plaintiff “which informed him ... [that the City] was not willing to grant and/or waive the variances it believed were required for him to rebuild his home pursuant to the settlement offer that had been made by [the] DEP and [the] DCA.” Id. Plaintiff does not attach this decision to his complaint nor does he further explain in his complaint why this was a “final ripeness decision.”

On May 29, 2009, Plaintiff filed another “Bert Harris lawsuit” in the Monroe County Circuit Court. Id. In this lawsuit, Plaintiff named the City as a defendant, and this case was consolidated with the lawsuit filed against the DCA and the DEP. Id. ⁶ On December 16, 2009 the Monroe County Circuit Court entered a Writ of Mandamus against the City Attorney and the City Clerk, ordering them to place Plaintiff's Notice of Appeal relating to the required variances on the agenda of the Board of Adjustment. Id. at 13. The matter was placed on the agenda for the Board of Adjustment, and on February 16, 2010, Plaintiff's appeal was denied. Id. at 15 Plaintiff states without further explanation that the denial of his appeal “was final.” Id.

The DEP has not raised any objection to Plaintiff's Plan B or Plan C joint permit application and has also never issued a permit to Plaintiff. Id. at 15. The City has objected to Plaintiff's Plan B joint permit application and required a number of variances. Id. Plaintiff states that some of these variances are “not obtainable.” Id. The Corps has never approved or denied Plaintiff's permit application based on Plan B ⁷ or his permit application based on Plan C. Id. at 15-16.

On February 22, 2010, Plaintiff instituted this action by filing a Verified Petition for Writ of Mandamus and Complaint. See (D.E. No. 1). He has since filed an Amended Verified Petition for Writ of Mandamus and Complaint for Declaratory Judgment and Regulatory Taking (D.E. No. 15), which is the operative pleading. In his amended petition/complaint, Plaintiff first seeks a Writ of Mandamus to require Respondent Pantano, the district commander of the Corps, to either approve or deny Plaintiff's Plan B and Plan C joint permit applications. (D.E. No. 15 at 16).

Plaintiff also filed a two-count Complaint against the Corps, the DEP, the DCA, the City, and the United States. Plaintiff has titled Count Two ⁸ “Declaratory Judgment” and in this count Plaintiff asks the Court

to enter a declaratory judgment: (a) that the joint and/or collective actions of .. [the Corps,] [the] DCA, [the] DEP[,] and ... [the City], including but not limited to, their objections, denials, deactivations, extraordinary delays, stonewalling,...