Mojito Splash, LLC v. City of Holmes Beach

• Decision Date: 30 July 2021
• Docket Number: No. 2D20-651,2D20-651
• Citation: 326 So.3d 137
• Parties: MOJITO SPLASH, LLC, Appellant/Cross-Appellee, v. CITY OF HOLMES BEACH, Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

326 So.3d 137

MOJITO SPLASH, LLC, Appellant/Cross-Appellee,

v.CITY OF HOLMES BEACH, Florida, Appellee/Cross-Appellant.

No. 2D20-651

District Court of Appeal of Florida, Second District.

July 30, 2021

Rehearing Denied September 29, 2021

Jason M. Miller and Aaron Thomas of Najmy Thompson, P.L. Bradenton, for Appellant/Cross-Appellee.

Jay Daigneault of Trask Daigneault, LLP, Clearwater, for Appellee/Cross-Appellant.

LaROSE, Judge.

Mojito Splash, LLC, sued the City of Holmes Beach under the Bert J. Harris, Jr., Private Property Rights Protection Act, § 70.001-.80, Fla. Stat. (2018) (the "Act"). Mojito appeals the final summary judgment entered in favor of the City. The City cross-appeals, challenging the trial court's earlier orders denying the City's motions to dismiss and for judgment on the pleadings.

We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.130(g) ; e.g. , Scotts Co. v. Hacienda Loma Linda , 942 So. 2d 899, 899-900 (Fla. 3d DCA 2005) (holding that an appellate court possesses jurisdiction over a cross-appeal from a nonfinal order by virtue of its jurisdiction over the order in the main appeal).

We find merit in the City's first argument on cross-appeal. Because the density restrictions in the City's Comprehensive Plan took effect years before Mojito purchased the subject property, Mojito cannot claim that those restrictions inordinately burdened an existing use of its property. Therefore, we affirm, although on grounds different than those adopted by the trial court.¹ See Pino v. Deutsche Bank Nat'l Tr. Co. , 201 So. 3d 128, 128 n.1 (Fla. 3d DCA 2015) ("Our [affirmance of the final judgment] in this regard is not, strictly speaking, a ‘tipsy coachman’ scenario, since Appellee filed a notice of cross-appeal on this issue, contending that although the trial court was ultimately correct in denying Appellants' motion for summary judgment, it erred in determining that Appellee's default letter commenced the running of the statute of limitations.").

Background

In February 2009, the City adopted Ordinance 08-05. This ordinance amended the City's Future Land Use Element of its Comprehensive Plan. With the amendment, the ordinance allowed vacation rentals in the City's Medium Density Residential R-2 zoning district. Critically, the ordinance restricted occupancy in such rentals to the greater of six persons or two persons per bedroom.

With constructive notice² of Ordinance 08-05, Mojito, in June 2013, purchased a five-bedroom property in the Medium Density Residential R-2 zoning district. Mojito intended to create a vacation rental property "capable of hosting 12 overnight guests." Mojito committed "significant cash investment along with additional accommodations specific to vacation rentals." By December 2013, Mojito began marketing the property as a vacation rental. Apparently, the property generated significant weekly rental income. Mojito further advises that the property's value increased.

In September 2015, the City enacted Ordinance 15-12. This ordinance amended the City's Land Development Code to conform with the 2009 amendment, Ordinance 08-05, to the Comprehensive Plan.

The City, in March 2016, enacted Ordinance 16-02. This ordinance created an enforcement mechanism to ensure compliance with the previously established occupancy limits for vacation rentals. Ordinance 16-02 restated the occupancy limits contained in Ordinance 08-05 and Ordinance 15-12.

About a year later, in April 2017, Mojito presented the City with a claim under the Act. See § 70.001(4)(a). Mojito submitted an appraisal that retrospectively valued the property as of September 2015, the date the City enacted Ordinance 15-12. The appraisal concluded that the property's value had diminished $295,000 due to Ordinance 15-12.

The City denied the claim. See § 70.001(5)(a). So, Mojito sued. See generally P.I.E., LLC v. DeSoto County , 133 So. 3d 577, 578 (Fla. 2d DCA 2014) ("The ... [Act] contains some relatively complex presuit requirements. The property owner must submit a claim in writing to the head of the governmental entity. If the matter is not resolved during the presuit period, the property owner can file its lawsuit in circuit court." (citations omitted)).

After a September 2019 hearing on the parties' competing summary judgment motions, the trial court rendered its final summary judgment in favor of the City. The judgment stated that "at the time [Mojito] purchased and developed the[ ] propert[y], they did have under the Act an ‘existing’ use of vacation rentals able to be rented to an unlimited number of occupants." However, the trial court concluded that Mojito's

claims fail under the Act because they cannot demonstrate an "inordinate burden." While the limitation on permissible occupants in vacation rentals imposed by Ordinance 15-12 represented a change in the existing use ... it did not result in an inordinate burden as that term is defined by the Act. Local governments clearly have the right to add to, subtract from, and amend land development regulations, and [Mojito is] not permanently unable to obtain [its] reasonable, investment-backed expectations as the result of Ordinance l5-12's passage. To the contrary, [Mojito] still possess[es] such reasonable, investment-backed expectation despite the ordinance.

Analysis

"[W]e review the grant of summary judgment de novo." Scott v. Strategic Realty Fund , 311 So. 3d 113, 116 (Fla. 2d DCA 2020) (quoting Griffin v. ARX Holding Corp. , 208 So. 3d 164, 168 (Fla. 2d DCA 2016) ); Highlands-In-The Woods, L.L.C. v. Polk County , 217 So. 3d 1175, 1178 (Fla. 2d DCA 2017) ("We review de novo the trial court's determination that the County was entitled to–and that Highlands was not entitled to–a judgment as a matter of law."). In reviewing the summary judgment before us, we must interpret and apply the Act. "Statutory interpretation is a question of law subject to de novo review." GTC, Inc. v. Edgar , 967 So. 2d 781, 785 (Fla. 2007) ; see, e.g. , Hardee County v. FINR II, Inc. , 221 So. 3d 1162, 1165 (Fla. 2017) (employing de novo review of the Act).

Mojito maintains that "[a]s a direct and intentional result of the City's adoption of Ordinances 15-12 and 16-02" it is "permanently restricted and unable to obtain its reasonable investment-backed expectations for an existing use of the Property. ... Mojito's investment in the exercised use of its Property has been permanently restricted by the passage of the Ordinances." Mojito contends that Ordinances 15-12 and 16-02 deprived it of its "existing use" of the property, that is, Mojito had the right to rent the property to an unregulated number of guests. This argument, too, is subject to our de novo review. See Boca Ctr. at Mil., LLC v. City of Boca Raton , 312 So. 3d 920, 923 (Fla. 4th DCA 2021) ("Determinations under [the Act] that a claimant has an existing use of the real property are conclusions of law and we review such conclusions de novo." (citing City of Jacksonville v. Coffield , 18 So. 3d 589, 594 (Fla. 1st DCA 2009) )).

"The [Act] addresses circumstances when the government enacts laws, regulations or ordinances that ‘may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution.’ " Indian River County v. Ocean Concrete, Inc. , 308 So. 3d 1010, 1013 (Fla. 4th DCA 2020) (quoting § 70.001(1), Fla. Stat. (2008) ). Accordingly, the Act created "a separate and distinct cause of action from the law of takings ... when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property." § 70.001(1). We must construe the Act narrowly. See Hardee County , 221 So. 3d at 1165 ("Because the Act alters the common law and waives sovereign immunity, it must be narrowly construed.").

As relevant to this appeal, the Act provides that

[w]hen a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief [including] compensation for the actual loss to the fair market value of the real property caused by the action of government.

§ 70.001(2). The parties agree that the property owner must prove (1) a specific governmental action has (2) inordinately burdened (3) an existing use of the owner's property. See Bair v. City of Clearwater , 196 So. 3d 577, 583 (Fla. 2d DCA 2016).

Facing a claim under the Act, a trial court must first assess whether the claimed "existing use of real property" or the claimed "vested right to a specific use of real property" actually existed. § 70.001(2) ; see, e.g., Ocean Concrete, Inc. v. Indian River Cnty., Bd of Cnty. Comm'rs , 241 So. 3d 181, 186 (Fla. 4th DCA 2018) ("[W]hen a claim under the [Act] is presented for judicial review, the court must first consider whether a claimed ‘existing use of the real property’ or a claimed ‘vested right to a specific use of the real property’ actually existed. If it finds either, it must next determine whether the government action inordinately burdened the property." (quoting § 70.001(6)(a), Fla. Stat. (2008) )).

The Act defines an "existing use" as "[a]n actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use." § 70.001(3)(b)(1).³ Mojito claims that it "had an existing use for its Property for several years renting to an unregulated number of guests and reaping the benefit of its hefty reconstruction investment."

Mojito, however, skirts the obvious: years before it purchased the property, Ordinance 08-05 limited vacation rental occupancy. Although Mojito could use the property as a vacation rental, it had no right to rent to an unlimited number of guests.

When Mojito purchased the property in June 2013, the City's Comprehensive Plan prohibited use of the...