Palm Beach Polo v. Village of Wellington

• Decision Date: 18 January 2006
• Docket Number: No. 4D04-2839.,4D04-2839.
• Citation: 918 So.2d 988
• Parties: PALM BEACH POLO, INC., Appellant, v. The VILLAGE OF WELLINGTON, Appellee.
• Court: Florida District Court of Appeals

918 So.2d 988

PALM BEACH POLO, INC., Appellant, v. The VILLAGE OF WELLINGTON, Appellee.

No. 4D04-2839.

District Court of Appeal of Florida, Fourth District.

January 18, 2006.

COPYRIGHT MATERIAL OMITTED

Larry A. Zink of Zink, Zink & Zink Co., L.P.A., for appellant.

Claudio Riedi and Anthony J. O'Donnel, Jr. of Lehtinen, Vargas & Riedi, P.A., Miami, for appellee.

On Motion for Clarification

WARNER, J.

We grant appellee's motion for clarification, withdraw our previously issued opinion and substitute the following in its place.

The Village of Wellington filed a declaratory action and also requested injunctive relief against appellant Palm Beach Polo, Inc. in connection with the 1972 Wellington Planned Unit Development. Pursuant to the PUD, Wellington sought to have Polo restore, enhance, and preserve an area known as Big Blue Reserve. Polo counterclaimed for inverse condemnation and violation of the Bert J. Harris, Jr., Private Property Rights Protection Act, claiming that the "Conservation" designation of Big Blue in Wellington's Code, as well as Wellington's insistence that Polo "preserve" and "restore" the area, constituted an "as applied" taking. Because the PUD agreement with Polo's predecessor-in-title contemplated the preservation of Big Blue and made specific provisions therefore, and because the developmental densities were transferred from the area in exchange for higher densities elsewhere, we conclude that no taking has occurred. We affirm the trial court's final judgment.

Big Blue Reserve or Forest is an undeveloped tract of land, approximately ninety-two acres in size, in the Village of Wellington. It contains wetlands and many old-growth cypress trees, some more than 300 years old. Big Blue is the focus of this appeal.

In 1971 most of the Village of Wellington was owned by AlphaBeta, Inc. and Breakwater Housing Corp. Desiring to develop Wellington, they entered into a Planned Unit Development with Palm Beach County. The result became the Wellington PUD.

A Planned Unit Development is a zoning device used to permit flexibility in design and use of property. See Frankland v. City of Lake Oswego, 267 Or. 452, 517 P.2d 1042 (1973). It is an agreement between the land owner and the zoning authority, and the terms of development are negotiated between the parties in accordance with the conditions set forth in the governing ordinances. A PUD plan, in compliance with zoning regulations, is submitted to the county for approval.

In 1972, the Zoning Resolution for Palm Beach County provided that, with respect to the Wellington PUD, "The intent and purpose of this section is to provide an alternative means of land development and to provide design latitude for the site planner." That year, the county approved the Wellington PUD submitted by AlphaBeta and Breakwater. It covered the development plan for 7400 acres. At the hearing approving the plan, several conditions were placed upon the approval. These included:

Developer proposes an overall average of 2 dwelling units per acre with public open space of over 25%. Development expected to take at least until year 2000 Will enhance and preserve big blue areas and pine tree forests. Will develop a ring of water around it for protection. Will increase water level 1 foot (back to its original condition) and animal life can be restored to its original condition.

Will preserve natural vegetation.

A planned community of open spaces, bicycle paths, golf course and recreation areas, with restoration and preservation of big blue pristine forest areas.

The notes of the commission meeting reflect that as a reason for approval, the property, as zoned, could be developed with single-family dwellings with a density of four units per acre. However, the developer committed to an overall density of two units per acre, which was made one of the conditions of the plan. Big Blue was given an OS-R designation, meaning Open Space-Reserve, in an Agricultural/Residential zoning district.

A year later, in connection with an application for a binding letter of interpretation, the developer submitted an informational package to the State Department of Administration. In that package the developer stated the following regarding Big Blue:

This 120-acre pristine forest containing some yet unnamed fern specimens, has been explored recently by a team of hardy souls who have ventured into this area to determine how best this untouched area can be preserved in its natural state.

There have been claims of ferns 15 feet and higher as well as cypress trees reaching 85 to 100 feet in height flourishing in this wilderness area, along with abundant animal life. There is a definite contrast between the deafing [sic] quietness within the forest and the pure shrill sounds of literally dozens of species of birds.

You can now walk into the Big Blue, very carefully, with proper guides; no vehicles will be allowed on the path. The Big Blue is a "must" evidencing an appreciation of the conservation, preservation and environmental attitude that is typical of the Wellington project.

In addition, the application by the Acme Improvement District for surface water management for the Wellington area noted that the environmental considerations upon most of the Wellington PUD property were not significant because it was abandoned agricultural land, except for Big Blue. In its application the District noted that Big Blue "will be preserved in its existing state. . . ."

In 1987 the surface water permit plan was modified with a particular emphasis on the Big Blue. This was done based upon application of the Landmark Land Company of Florida, Inc. The South Florida Water Management analysis refers to the proposed modification as completing the berm around Big Blue. The review stated, "The restoration of the Big Blue is dependent upon the perimeter berm being completed and constant inundation being maintained. . . . Constant inundation will kill most of the Brazillian Pepper [exotic vegetation present] and prevent further invasion."

The county adopted its Comprehensive Plan in 1988. The next year, the developer asked for another modification of the Wellington PUD. In the ordinance approving the modification, the county made it conditional upon the amending of the tabular data of the plan to reflect the "acreage of the OS-R natural reserve known as Big Blue reserve."

Landmark experienced financial difficulties and went into bankruptcy. In 1993, Palm Beach Polo's sister company purchased Landmark's interest in Wellington, including the Big Blue Reserve at a bankruptcy auction. Prior to the purchase, it received and reviewed a five volume Due Diligence Report regarding the entire property. Prepared by the bankruptcy trustee, the report conceded that it had not exhausted all information available about the property, but it included the Wellington Master Plan which designated the Big Blue Reserve as OS-R. The Surface Water Management Permits were also referenced in the report. However, no one on behalf of Polo contacted Palm Beach County Planning and Zoning Department or the county records to check the local land use regulations and other resolutions or permits. The sister company purchased the property essentially "as is." It then transferred the property to Polo in November 1993.

Prior to trial, Wellington and Polo submitted a joint pretrial stipulation, in which they stated:

As of 1993, the zoning designation of the land in the Wellington PUD as a whole, which included Big Blue, was and is AR-SE (PUD), which stands for Agricultural/Residential subject to a Special Exception for a Planned Unit Development. The Wellington PUD Master Plan in 1993, and still today, designated Big Blue as "OS-R," which means Open Space-Recreation. Big Blue has remained undeveloped until today.

Wellington became incorporated after the purchase by Polo. In 1999, it adopted its own comprehensive plan which essentially followed the Palm Beach County Comprehensive Plan. The 1999 Wellington plan included a "conservation" designation for Big Blue. According to its officials, this was merely a restatement of the property's longstanding OS-R designation under the PUD. It imposed no duties that were not in existence prior to its designation as conservation.

Polo protested the conservation designation in the plan, making a claim under the Bert J. Harris Act, and Wellington responded with a letter reciting its position that no change would be made to the comprehensive plan designation for Big Blue. Polo then invited the council members to visit the site. At a subsequent meeting, the Polo president offered to give Wellington fifty acres of the site, but based on the council members' responses at the meeting, he believed that the proposed plan had no chance of approval.

Wellington then filed its own suit for declaratory judgment seeking to enforce the requirements of the 1972 PUD regarding Big Blue for flooding of the property and removal of exotic vegetation. Polo answered, contending that it had no legal obligation to preserve Big Blue. It asserted that the preservation boundaries were not legally described and that the restorative measures were too general in the original 1972 PUD to be enforced, nor were they properly implemented prior to Polo's acquisition in 1993. It counterclaimed for inverse condemnation, contending that the requirements for preserving Big Blue constituted an unlawful taking and a violation of the Bert J. Harris Act.

After a lengthy trial with voluminous exhibits, the court found in favor of Wellington. Specifically, the court determined, in part:

4. Florida law has no requirement that zoning regulations be recorded in the chain of title to be enforceable against a property owner. An owner is legally obligated to examine the public records of the zoning authority and is on constructive notice of the ordinances, resolutions, and filed plans and restrictions governing a parcel of property. Metropolitan...