McNulty v. Town of Indialantic

• Decision Date: 08 December 1989
• Docket Number: No. 83-545-Civ-Orl-11.,83-545-Civ-Orl-11.
• Citation: 727 F. Supp. 604
• Parties: Clifford A. McNULTY, Plaintiff, v. TOWN OF INDIALANTIC, Defendant.
• Court: U.S. District Court — Middle District of Florida

727 F. Supp. 604

Clifford A. McNULTY, Plaintiff, v. TOWN OF INDIALANTIC, Defendant.

No. 83-545-Civ-Orl-11.

United States District Court, M.D. Florida, Orlando Division.

December 8, 1989.

Stewart B. Capps, Melbourne, Fla., for plaintiff.

F. Scott Pendley, Orlando, Fla., Edward J. Silberhorn, Melbourne, Fla., for defendant.

OPINION

WALTER E. HOFFMAN, Senior District Judge, sitting by designation.

On July 27, 1983, Clifford A. McNulty filed this action alleging a taking of his property by the Town of Indialantic, without just compensation and without due process in violation of his Fifth and Fourteenth Amendment rights. On April 18, 1986, the court granted summary judgment for the defendant. On November 14, 1987, 832 F.2d 1265, the United States Court of Appeals for the Eleventh Circuit reversed and remanded the case for further proceedings. The trial of this matter was on January 27 and 30, 1989, in the United States District Court for the Middle District of Florida, following which the transcript was prepared and the matter was briefed by counsel. The case is now ready for final decision.

FACTS

In November 1963, McNulty purchased four oceanfront lots in the Town of Indialantic, paying $25 for each foot of ocean frontage. TR at 89 and 90, P.E. 1. The property is 135 feet wide extending from the Atlantic Ocean on the east to a public street, Wavecrest Avenue, on the west. TR at 91. Only 20 feet of its width lies landward of the bluff of a sand dune. TR at 96. The property is 200 feet in length, abutting a public beach to the north (TR at 86 and 99) and twenty 50-foot privately owned beachfront lots to the south. The privately owned lots are used in conjunction with homes across Wavecrest Avenue. TR at 201-02, 205-06. McNulty's property is comprised primarily of sandy beach and dune vegetation. TR at 169-70.

When purchased, McNulty's lots were not represented on the town's zoning maps. TR at 360-63; D.E. 29, 30. For this reason, permission of the town was required before any structure could be built on the lots. TR at 366. The lots first appeared on the zoning maps in 1967. TR at 363; D.E. 31. Since that time, the lots have been zoned Tourist, a classification which allows the following uses: residential, multiple living units, professional, hotel, motel, clubs and lodges. TR at 93-94; P.E. 25. No habitable structures have ever existed on McNulty's property or north or south along the beach. TR at 172.

In 1971, the town inquired of McNulty about acquiring his property to expand its municipal beach. TR at 100; P.E. 2. The contemplated expansion included other parcels as well. The matter was dropped after the town's offer of $77 per front foot fell short of McNulty's demand for $110 per front foot. TR at 100-103; P.E. 2.

In March 1973, the town adopted ordinance 149, requiring beachfront structures to be set back 50 feet from the mean high water line, or 25 feet from the bluff line of the dunes, whichever distance was greater. TR at 107, 355; P.E. 19. It acted pursuant to Fla.Stat. § 161.052 (1970), which prohibits construction of dwellings within 50 feet of the mean high water line.

In 1978, the town adopted ordinance 10-781, establishing front setbacks for coastal construction. It used the same coastal construction setback line established by the state legislature in 1971. TR at 354-56. Fla.Stat. § 161.053 (1971) prohibited construction seaward of the established line without prior permission, waiver, or variance from the Department of Natural Resources. D.E. 2. All of McNulty's property lies seaward of this line, which runs down Wavecrest Avenue about four feet west of its center. TR at 129.

Variances to the various town zoning ordinances may be granted by the Board of Adjustment with right of appeal to the Town Council.

In 1978, McNulty applied for a variance to allow construction of a single family dwelling on his property. TR at 121; D.E. 32, 33. The Board of Adjustment denied his application. On appeal, the Town Council upheld the denial. TR at 121-22. On appeal of the Town Council's decision, the state Circuit Court struck down ordinance 149 as facially unconstitutional. TR at 122; D.E. 30 and 37. The Florida District Court of Appeal reversed that judgment in 1981, resolving the issue of facial validity in favor of the town. It also held that McNulty's evidence did not make a prima facie showing that his property was taken by unconstitutional application of the ordinance to his particular property. TR at 122; D.E. 37.

In 1981, McNulty reapplied for a variance to construct a single family dwelling. TR at 134-35; D.E. 39 and 39A. Before the Board of Adjustment took action on the request, he withdrew the application. TR at 367. He resubmitted an application to build a two-story 12-unit condominium complex on the property. TR at 191-92. On this application, McNulty raised the estimated value of the property with the proposed construction from $80,000 to $600,000. TR at 148, 368-69; D.E. 38, 39. The Board of Adjustment denied the variance, and the Town Council upheld the denial. P.E. 27, 29, and 30.

In this action, McNulty contends that his property has been taken by the town without due process or just compensation in violation of his Fifth and Fourteenth Amendment rights. He alleges that the taking is effected both by the zoning ordinances prohibiting construction on his property and by actions of the town which he says make his property indistinguishable from the adjacent public beach.

In 1974, the town widened Wavecrest Avenue with parking on both sides of the street in front of McNulty's property and south in front of other privately-owned lots. TR at 68-69 and 109. In 1982, the town placed parking meters at the spaces in front of McNulty's property. TR at 71; P.E. 24. In 1984, the town responded to McNulty's complaints about trespassers by erecting a fence in front of his property. TR at 65-66.

McNulty contends that, as a result of the town's actions, his property has no economic value.

ISSUE

The issue in this case is whether McNulty's property has been taken without due process and without just compensation by virtue of the town's ordinances and actions affecting the property. Resolution of this issue depends on whether the town's actions bear a substantial relationship to a valid public purpose. Even so, its actions could go too far. To make that determination, the court will consider the character of the government action, its economic impact, and its interference with reasonable investment-backed expectations.

DISCUSSION

The Florida Court of Appeals has held that Indialantic's zoning ordinance imposing setbacks is not facially unconstitutional. Town of Indialantic v. McNulty, 400 So.2d 1227 (1981). That decision is res judicata in this action. The question remains, however, whether the zoning is unconstitutional as applied to McNulty's property.

Sufficient Nexus

In Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the United States Supreme Court began its analysis of a taking allegation by examining whether a use restriction was "reasonably necessary to the effectuation of a substantial government purpose." 438 U.S. at 127, 98 S.Ct. at 2660.

In Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), however, the Court used strict scrutiny to examine the fit between the challenged regulation and the claimed state interest. It required that the regulation "substantially advance a legitimate state interest." Nollan, 483 U.S. at 834, 107 S.Ct. at 3146.

In its discussion of the necessary nexus between the regulation and state interest, the Court recognized that a "broad range of governmental purposes and regulations satisfies these requirements." Id. at 835, 107 S.Ct. at 3147. These include open spaces, scenic zoning, landmark preservation, and residential zoning. The Court assumed, without deciding, that preventing congestion on public beaches and protecting the public's ability to see the beach are permissible police power purposes. A restriction or condition on development that furthered those ends, therefore, would be constitutional, even if it required a concession of property rights by the landowner. Id. at 835-37, 107 S.Ct. at 3147-48.

In Nollan, the Commission conditioned the plaintiffs' building permit on the granting of a public easement across their beach-front property. The Court found that the necessary connection between the regulation and claimed state interest was missing. The easement along the oceanfront neither prevented congestion nor protected against visual barriers. The building restriction was "not a valid regulation of land use but `an out-and-out plan of extortion'" to obtain an easement. Id. at 837, 107 S.Ct. at 3148 (citation omitted).

The present case presents a different situation. The challenged regulation does not attach conditions to building permits but rather prohibits habitable structures within 25 feet of the top of the dune. The town premises this exercise of police power on public safety and general welfare grounds, citing as its goal the preservation of the dune system.

The regulation seeks to avoid the measurable probability that the proposed construction would impair the use of adjacent property and damage the dune line. Experts offered uncontradicted testimony that a project like that proposed by McNulty would deplete and eradicate dune vegetation and cause erosion of the dune and sand on adjacent property. TR at 311-21, 398, 411-52.

The town relies on the legislative intent advanced by the state legislature when adopting the underlying Beach and Shore Preservation Act, Fla.Stat. § 161.053(1) (1979): "it is in the public interest to preserve and protect the beaches of the state from imprudent construction which can jeopardize the stability of the beach dune system, accelerate erosion, provide inadequate protection of upland structure and...