New Port Largo, Inc. v. Monroe County

Citation873 F. Supp. 633
Decision Date21 December 1994
Docket NumberNo. 87-10043-CIV-KING.,87-10043-CIV-KING.
PartiesNEW PORT LARGO, INC., Plaintiff, v. MONROE COUNTY, Defendant.
CourtU.S. District Court — Southern District of Florida

Jeffrey B. Crockett and Michael R. Seward, for plaintiff.

Alan G. Greer, James Hendrick and Randy Ludacer, for defendants.

MEMORANDUM OPINION

JAMES LAWRENCE KING, District Judge.

New Port Largo, Inc. brought this action, alleging a temporary regulatory "taking" of its property by Monroe County, on July 7, 1987. The Plaintiff seeks compensation for an alleged regulatory taking pursuant to the Just Compensation Clause of the Fifth Amendment to the United States Constitution as made applicable to the states by the Due Process Clause of the Fourteenth Amendment. The Plaintiff asserts further claims for monetary damages for the unlawful regulatory taking under 42 U.S.C. § 1983 (1988) for violation of substantive and procedural due process rights.

New Port Largo, Inc. contends that Monroe County effected a temporary taking of its property and violated its civil rights by (1) creating a new zoning classification throughout the County of "PA-Private Airport" on June 5, 1979, and (2) rezoning Plaintiff's property from RU-2 to Private Airport Use (PA) on September 11, 1980.1

I. FINDINGS OF FACT
A. CASE HISTORY

The property in question consists of twenty-five residential oceanfront lots,2 dredged from the ocean to create a landing strip for an airport and a breakwater for an upland subdivision on Key Largo, Florida.

In August, 1968 the State of Florida sold the submerged land in question to a private trust for $4,000.

In presenting the matter to the Florida Cabinet (sitting as trustees of the Florida Internal Improvement Trust Fund), agents of the Trust, stated that the land dredged from the ocean bottom would be used to construct an airport landing strip for use by the citizens of the upper Florida Keys. The airport property, once the dredging, filling and paving of the runway were completed by the Trust developers, would be deeded to Monroe County for use as a public airport. An additional benefit to the public was the breakwater protection for the adjoining mainland property of approximately 150 property owners. The County joined the Trust developers in seeking approval from the Florida Cabinet for sale of the submerged lands. The sale was approved and a dredging permit issued by the Cabinet in August, 1968.

At that time, the Trust owned the upland property known as Port Largo, primarily consisting of platted waterfront residential lots on finger canals. The granting, by the Florida Cabinet (I.I. Board), of a dredging permit was valuable to the Trust developers for the dual purpose of obtaining the land fill necessary to construct the runway — breakwater, and to provide a deep water access canal to the finger canals of the subdivision development on the upland property. The Trust proceeded to dredge the deepwater canal which connected all the finger canals of the subdivision lots to the ocean and to create the breakwater lots. This was done at the expense of the private trust after Monroe County backed out of an oral understanding they had with the Trust developers to share in the cost of dredging the deepwater canal and construction of the airport landing strip.

The Trust developers, having obtained the land and permission to dredge the access canal that was vital to the development of the subdivision's finger canals, proceeded to dredge the canal and fill the land to create the breakwater which exists today. An airport known as the Port Largo Airport, operated on the breakwater from at least 1971 to early 1985. The airport was operated continuously throughout this period of time on lease arrangements between the airport operators and the Trust.3 Under the lease, the Trust owners of the property received rental payments from the operators of the airport.

In 1972, the breakwater property was zoned by Monroe County as RU-2 Residential.4 On January 29, 1973 the lease operator of the Port Largo Airport applied for a change in the zoning of the property from RU-2 to BU-2, permitting the operation of the property as an airport. The property owners consented to the request by their lessee to the proposed change in zoning of the breakwater property.

The Monroe County Zoning Board denied the requested zoning change on March 23, 1973, but granted a variance from the existing RU-2 zoning "to operate an airport and facilities."

On June 5, 1979, the Monroe County Board of Commissioners enacted Ordinance 14-1979, which created a new zoning classification within the County of PA, or Private Airport.5 Prior to this, there was no zoning classification in the Monroe County zoning classifications specifically pertaining to airports.

On January 30, 1979, New Port Largo, Inc. ("NPL"), the Plaintiff in this litigation, entered into a purchase and sale agreement to buy the Fourth and Fifth Additions of the Port Largo subdivision in Key Largo, Florida for $3,200,000. The entire property consisted of sixty-three acres, which included approximately 9.65 acres that encompassed Lots # 535-560. The Court will refer to Lots # 536-560 as the "breakwater property" or the "breakwater lots."

On September 1, 1979, NPL purchased the Fourth and Fifth Additions, including the breakwater lots from the private Trust. NPL bought the breakwater property subject to an airport lease that was to expire on July 14, 1982. At the time of the purchase, the breakwater property was zoned RU-2 with a variance for airport use and had been used as an airport since at least 1971.

In November 1979, Monroe County (the County) filed an application with the Zoning Department to rezone the property from RU-2 to private airport use (PA). On January 24, 1980, the Zoning Department held a hearing on the proposed rezoning and subsequently approved the County's application.6 NPL appealed the Zoning Department's decision to the Monroe County Board of Commissioners (the Commission). On September 11, 1980, the Commission affirmed the Zoning Department's decision.

B. LITIGATION HISTORY

On October 10, 1980, NPL filed a petition for a writ of certiorari in state circuit court alleging that the rezoning violated Florida law. NPL claimed that the County had not complied with the procedural requirements of its Major Development Project Ordinance, an ordinance that applies to rezonings which, as here, concern parcels of land greater than five acres. On September 9, 1982, during the pendency of its certiorari petition in the state court, the Plaintiff NPL sold the property in question for a profit, conveying one-half undivided interests in fee simple both to TFW, Inc., a Florida corporation, and to a land trust administered by the First National Bank of South Miami. Neither of these purchasers intervened in the certiorari proceeding brought by NPL and Plaintiff did not apprise the state court of the fact that it had sold the property.

In August 1985, NPL amended its petition to include a claim that the County had deprived NPL of its property "without offering compensation ... in violation of the constitutions and laws of the United States and of the State of Florida". NPL also claimed that the rezoning did not comply with the dimensional requirements and safety regulations for a private airport. NPL asked the court to declare the rezoning invalid, to return the property to its RU-2 zone classification, and to provide any further relief the court deemed appropriate.

The state certiorari proceeding was stayed pending the final resolution of a second lawsuit. This lawsuit, instituted by Monroe County in early 1982, sought the imposition of a constructive trust on the breakwater property for the benefit of Monroe County on the strength of Darryl Sheley's representations years earlier. On March 27, 1984, the Florida Circuit Court entered judgment in favor of Plaintiff and against Defendant Monroe County in the constructive trust lawsuit. That judgment was affirmed on appeal. Monroe County v. New Port Largo, Inc., 467 So.2d 757 (Fl.Dist.Ct.App.1985).

On January 2, 1986, the state court granted NPL's petition to invalidate the rezoning ordinance.7 The Court found that the County's rezoning of the property to PA violated the dimensional requirements of a private airport zone and that the County had not complied with the procedures of its Major Development Project Ordinance. Accordingly, the court declared invalid and quashed the County's rezoning of the subject property. Because the court found that the County had acted in good faith in pursuing the rezoning, however, it did not award damages to NPL. Neither party sought appellate review of the court's decision.

After the successful zoning challenge, NPL filed the instant suit in United States District Court in 1987, raising Fifth Amendment and 42 U.S.C. § 1983 claims. On November 21, 1988, this Court found that NPL's claims were barred by a four year statute of limitations. New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507 (S.D.Fla.1988). Five years later, in 1993, the Eleventh Circuit Court of Appeals reversed, holding that NPL's regulatory takings claims were not time-barred. New Port Largo, Inc. v. Monroe County, 985 F.2d 1488 (11th Cir.1993) ("New Port Largo I").

Upon remand this Court bifurcated the issues of liability (takings issue) and damages. A bench trial on the alleged temporary takings issue was held first, to be followed by a jury trial on damages. NPL appealed the Order of Bifurcation by filing a Petition for Writ of Mandamus on October 4, 1994. The Eleventh Circuit denied NPL's application for Writ of Mandamus on October 7, 1994. New Port Largo, Inc. v. Monroe County, Petition for Writ of Mandamus denied, (11th Cir. Oct. 7, 1994) (No. 94-5031). Following denial of mandamus, this court conducted an eight day non-jury trial on the takings issue.

II. CONCLUSIONS OF LAW
A. RIPENESS

"Ripeness is a question of subject matter...

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