Lost Tree Village Corp. v. City of Vero Beach

• Citation: 838 So.2d 561
• Decision Date: 13 November 2002
• Docket Number: No. 4D01-3954.,4D01-3954.
• Parties: LOST TREE VILLAGE CORPORATION, Appellant, v. CITY OF VERO BEACH and the Town of Indian River Shores, Appellees.
• Court: Court of Appeal of Florida (US)

838 So.2d 561

LOST TREE VILLAGE CORPORATION, Appellant, v. CITY OF VERO BEACH and the Town of Indian River Shores, Appellees.

No. 4D01-3954.

District Court of Appeal of Florida, Fourth District.

November 13, 2002.

Rehearing Denied December 23, 2002.

Jack J. Aiello and Ernest A. Cox, III of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.

John K. Shubin and Jeffrey S. Bass of Shubin & Bass, P.A., Miami, and Julie B. Schutta, Vero Beach, for appellee City of Vero Beach.

Kenneth G. Oertel and Jeffrey Brown of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for appellee Town of Indian River Shores.

WARNER, J.

Lost Tree Village Corporation appeals a final judgment dismissing its eleven count complaint alleging inverse condemnation of its property by the City of Vero Beach and The Town of Indian River Shores. Lost Tree's property consists of two groups of islands in the Indian River Lagoon. The trial court concluded that none of the claims were ripe for adjudication because Lost Tree had not obtained a final determination of the uses that would be permitted on the islands. While Lost Tree's claims alleging a facial taking of its property were properly dismissed, albeit not on ripeness grounds, we hold that its claims alleging an "as-applied" taking of its Inner Islands were ripe for adjudication, although those claims alleging a taking of its Outer Islands are not ripe. We therefore hold that the trial court erred in dismissing the claims related to the Inner Islands.

The Lost Tree Islands consist of "islands and submerged lands in the Indian River Lagoon ... located partially within the Town and partially within the City." The islands are divided into two groups: the Inner Islands are located entirely within the Town, while the Outer Islands are located partially within the Town and partially within the City. Lost Tree owns the submerged land between and among the Inner Islands and between and among the Outer Islands, but the Trustees of the Internal Improvement Trust Fund ("IITF") own the submerged land between the Inner and Outer Islands, called Gifford Cut.¹ Presently, the Lost Tree Islands are undeveloped and have no bridge access. A basic map of the islands and surrounding area is attached hereto as an appendix.

Lost Tree claims the City and Town have, through the combined force of their individual respective regulations, precluded any economically viable use of the Lost Tree Islands. Lost Tree sought to develop single family homes on the Inner Islands within the Town. To access those homes, it applied to build a bridge from a road located within the City to the islands. However, when the City denied Lost Tree's application, and the Town would not allow the homes to be built without bridge access, Lost Tree brought the instant takings claims against both municipalities.

The City Regulations

In the late 1980s, Lost Tree met with the City to discuss its plans to develop the Islands. The City's existing zoning regulations permitted Lost Tree to build five units per acre. Around that same time, the City had approved an application to develop Prang Island, another undeveloped and unbridged island in the Indian River Lagoon. Unfortunately for Lost Tree, the Prang Island approval prompted the City's Mayor to announce the City's intention to purchase and prohibit further development of any undeveloped islands, especially the Lost Tree Islands.

Consistent with that announcement, in December 1989, the City established a new zoning district, R-1AAA. R-1AAA restricted density to one unit per two acres, made single family residential use a conditional use, severely restricted fill or regrading of property, required an environmental assessment, and required at least 80% of each site to be open space. In July 1990, the City rezoned the portion of the Lost Tree Islands within the City to R-1AAA. Also in early 1990, the City enacted the following "no bridgehead" ordinance:

No property shall be used as a bridgehead property for an island that is undeveloped as of the date of this ordinance when said use shall have its public purpose the connection with any public right-of-way in the city of Vero Beach. Further, if said property is not within the City's jurisdiction but is immediately contiguous thereto, the city shall prohibit, by erection of barriers, any connection with the city right-of-way.

This ordinance effectively precludes bridge access from the City's main barrier island to the Inner Islands located within the Town.

Around that same time, the City decided to adopt a new Comprehensive Plan. The Department of Community Affairs ("DCA") petitioned the Division of Administrative Hearings ("DOAH") to determine whether this new Plan complied with chapter 163, Florida Statutes and the Florida Administrative Code. Lost Tree intervened. The DCA and the City eventually settled in July 1992 after the City agreed to certain remedial amendments. As amended, the City's new Plan included, inter alia, a provision similar to the "no bridgehead" ordinance and another provision restricting density on the islands even further than R-1AAA zoning to one unit every five acres. Lost Tree challenged the DCA's determination that the amended Plan complied with applicable law. In May 2001, the DCA entered its final order, finding the Plan in compliance. According to Lost Tree, the rezoning, no bridgehead ordinance, and the new Plan were all specifically designed to preclude development of the Lost Tree Islands. The City Mayor allegedly made the following statements regarding development of the islands:

I'll stop it, I hope. We're playing hardball, because we don't want those islands developed. What I'm hoping to do is stall development of them until we can find some mechanism to purchase them.

I'm not denying this bridgehead ordinance is forestalling action until we can find a way to purchase these undeveloped islands.

Other members of the City government made similar statements in public and to the Governor and Cabinet.

The Town's Regulations

In December 1989, Lost Tree submitted a preliminary application to the Town, seeking approval to develop the Inner Islands under the existing regulations allowing one unit per acre. Due in part to organized citizen opposition to developing the Lost Tree Islands, the Town, similar to the City, set out to purchase the islands or otherwise minimize development. Town officials had allegedly stated the Town's intention to purchase the Lost Tree Islands to prevent their development. As a result, the Town denied Lost Tree's application. The Town then adopted a new zoning law, allowing one unit per five acres.

In May 1990, the Town adopted a new Comprehensive Plan. The new Plan limited development of "environmentally sensitive islands," such as the Lost Tree Islands, to one unit per five acres and prohibited development on unbridged islands within the Indian River Lagoon unless road and bridge permits were approved by the appropriate agencies. Lost Tree petitioned the DCA, challenging the Plan's compliance with applicable law. The Administrative Law Judge ("ALJ") who heard the case recommended that the Town's Plan was not in compliance with the state's Comprehensive Plan, because its prohibition on developing unbridged islands was "in effect, an absolute bar to development." The DCA rejected the ALJ's recommendation and found the Town's Plan in compliance.

Lost Tree's Applications to Develop

Despite the City's "no bridgehead" ordinance, Lost Tree contended, "the only route to bridge the Inner Islands [in Town] is to connect them to the mainland via Silver Shores Road, which is located in the City." Accordingly, it submitted an application to the City to build a bridge to the Inner Islands from its property at the end of Silver Shores Road. The City granted the application, provided it rescinded the "no bridgehead" ordinance and other related provisions in the City's Comprehensive Plan. That recision has not occurred.

In November 1998, Lost Tree submitted a separate application to the Town for preliminary plat approval of a fifty-seven unit development on ninety acres of the Inner Islands. However, without the needed bridge, the Town rejected the application in January 1999. According to Lost Tree, the Town's "no development without bridges" provision combined with the City's "no bridgehead" provision, precludes any uses of the Lost Tree Islands within the Town.

Court Action

In May 1998, Lost Tree filed suit against the City. The suit was abated, pending the DCA proceedings wherein Lost Tree was challenging many of the provisions at issue in the complaint. After the DCA entered its final order in May 2001, finding the City's Comprehensive Plan in compliance (the DCA also found the Town's Plan in compliance), the court lifted the abatement. Lost Tree stated that it did not intend to appeal the DCA's compliance determination.

In June 2001, Lost Tree filed an amended complaint, adding the Town as a defendant. The complaint alleges that Lost Tree's claims are ripe for review and, based on statements by City and Town officials, any further attempts to apply for development approval would be futile.

Counts I-III are titled "per se" claims. As to the Inner Islands, Count I claims the combined effect of the City and Town regulations preclude all economically viable use. Specifically, the City prohibits building a bridge at the only possible location, Silver Shores Road, and the Town prohibits any development without bridge access. As to the Outer Islands within the Town, because Lost Tree owns neither the submerged land between the Outer Islands and the mainland nor the submerged land between the Outer and Inner Islands, Count II claims that the Town's "no development without bridges" provision precludes all development of the Outer Islands within the Town. As to the Outer Islands within the City, Count III claims that the City's R-1AAA zoning provision, with its...