Taylor v. Village of North Palm Beach

• Decision Date: 16 August 1995
• Docket Number: No. 93-2569,93-2569
• Citation: 659 So.2d 1167
• Parties: 20 Fla. L. Weekly D1831 Joan B. TAYLOR, Appellant, v. VILLAGE OF NORTH PALM BEACH, a Florida Municipal corporation, incorporated under the laws of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1167

659 So.2d 1167

20 Fla. L. Weekly D1831

Joan B. TAYLOR, Appellant, v. VILLAGE OF NORTH PALM BEACH, a Florida Municipal

corporation, incorporated under the laws of the

State of Florida, Appellee.

No. 93-2569.

District Court of Appeal of Florida,

Fourth District.

Aug. 16, 1995.

Luther Martin Taylor, Palm Beach Gardens, and Michael J. Ryan, Minneapolis, MN, for appellant.

George W. Baldwin and Charles M. Pigott, Lake Park, for appellee.

PARIENTE, Judge.

Appellant landowner appeals an adverse final judgment rejecting her claim that the enactment of the Village of North Palm Beach's 1989 Comprehensive Land Use Plan constitutes a facial taking of her property and finding her as-applied challenge not ripe for review. We agree with the trial court and accordingly affirm its detailed final judgment.

FACTS

The property, Little Munyon Island, is an island in the Intracoastal waterway consisting of 2.562 acres of upland property and 15.114 acres of submerged land. As found by the trial court:

The island is located in the midst of environmentally sensitive resources, including seagrass beds, mangrove, and mud flats which provide a habitat for manatees and other wildlife. There has been no development either on the island or in the surrounding areas since the 1960's.

The title history of the island is complex; however, title apparently passed into landowner's family in 1971 in return for some undocumented legal work performed by landowner's husband, Luther M. "Luke" Taylor. As of the time the lawsuit was first instituted, landowner held title to the property as trustee. When title was first acquired in 1971, North Palm Beach had no comprehensive land use plan. The zoning, designated as C-1A, permitted limited commercial uses and high density, multi-family residential uses. In 1974, North Palm Beach changed the designation of C-1A property, eliminating the residential uses but still permitting limited commercial uses which encompassed office and medical buildings, private schools, hotels, restaurants, marinas and recreational facilities.

The first comprehensive land use plan, adopted in 1975, designated the island's future land use as commercial, as did the 1979 comprehensive land use plan. The 1975 plan, however, contemplated a transition in the permissible uses of the island from commercial to residential with a maximum density of four units. Nevertheless, the zoning continued to be C-1A, although the 1979 plan also contained a map showing the island designated as conservation. While not specifically addressing the island, both the 1975 and 1979 comprehensive land use plans noted the environmentally sensitive nature of the area and impediments to potential development.

Landowner argues that the only feasible use of her property before and after enactment of the 1989 plan would be an intense commercial development such as a combination hotel-marina-restaurant facility similar to Pier 66 in Fort Lauderdale. However, as long as landowner or her husband has held title to the island, neither of them, nor anyone on their behalf, has ever made any substantial attempt to develop the island or made any feasibility studies of the potential uses of the property. The development potential of the island was uncertain even before enactment of the plan in 1989 due to a variety of regulatory constraints. Luke Taylor testified that, long before the adoption of the plan, the U.S. Army Corps of Engineers had made it clear that any effort to intensely develop the island would not be possible and that he had determined that it would be "futile" to proceed with further efforts. This Before the enactment of the 1989 plan, the only individual who ever made a significant effort to develop the island met with failure. During the early to mid-1980's, Charles Ball, who had an option to buy the island for more than one million dollars, attempted to develop the property as a marina with over one hundred slips and a clubhouse. In Little Munyon Island, Inc. v. Department of Environmental Regulation, 492 So.2d 735 (Fla. 1st DCA 1986), the first district held that although the predecessor in title of Little Munyon Island had established its right to fill, the state was still permitted other reasonable restrictions on development. After investing more than $225,000 during a period exceeding two and one-half years, Ball abandoned the project when it appeared to him that it was hopeless to obtain the requisite permits from the regulatory agencies involved.

was the case, despite the fact of Taylor's apparently successful litigation in Askew v. Taylor, 299 So.2d 72 (Fla. 1st DCA 1974), which earned him the right to the fill permit issued in 1975.

Besides the regulatory roadblocks, development of the island has been subject to numerous practical limitations. Access to the island has always been limited. A bridge from the mainland to the property would have been too expensive, even if regulatory approvals could have been obtained. Further, there is no indication that a road or deep channel could have been built to allow for a more intense commercial use of the property.

Against this backdrop, in 1988 the state legislature enacted the "Local Government Comprehensive Planning and Land Development Regulation Act." Sec. 163.3161, et seq., Fla.Stat. (1989). Consistent with this legislation, North Palm Beach began developing a revised comprehensive land use plan with a required goal of making the plan consistent with the Regional Comprehensive Plan under the authority of the Treasure Coast Council. In the planning stages, the trial court found that:

[North Palm Beach] recognized that the island was privately owned and that the owners had a financial interest in being able to develop the property. On the other hand, [North Palm Beach] also recognized that the island was an undeveloped, pristine component of the Lake Worth estuarine system and that any future use of the island should be consistent with sound ecological and conservation principles.

In November 1989, North Palm Beach adopted a new Comprehensive Land Use Plan (the plan), which changed the island's future land use designation from limited commercial to conservation/open space (C/OS). The plan describes this designation as:

Land uses and activities within land areas "designated" for the primary purpose of conserving or protecting natural resources or environmental quality, and includes areas designated for such purposes, or combinations thereof, as passive recreation, flood control, protection of quality or quantity of ground water or surface water, flood plain management, fisheries management, and/or protection of vegetative community or wildlife habitats.

(Emphasis added). Despite the seemingly restrictive language of the C/OS designation, the urban development planner who drafted this provision for the 1989 plan testified that, in agreeing with the State of Florida to change the designated land use from commercial to conservation/open space, he intentionally added the words "primary" and "passive recreation or combinations thereof" to create some flexibility in terms of the development potential of the property. In 1991, North Palm Beach amended the C/OS zoning classification to add low density single family dwellings as an additional permissible use. Subsequently, the plan was amended with the required approval of the Department of Community Affairs to allow for single-family housing units in the C/OS classification.

The trial court specifically found, based on unrefuted testimony from the professional planner for North Palm Beach, its Director of Public Services, its former Mayor and member of the Village Council at the time the plan was adopted and two professional urban designers, that "following the enactment of the 1989 plan, potential permitted uses [under the existing C/OS designation] included a scaled-down marina, a theme restaurant,

                a bed and breakfast facility, a fishing camp or a boat storage facility."   Subsequent to the adoption of the plan, landowner never presented North Palm Beach with a plan of proposed development and never sought to have the plan amended to include additional uses
                

LANDOWNER'S TAKINGS CLAIM

Landowner brought an action against North Palm Beach in 1991, alleging that her property had been taken without just compensation. In challenging the land use plan in this case, landowner stipulated that the enactment of the plan was a valid exercise of governmental police power; thus, the issue we must decide is not whether the actions of North Palm Beach have been arbitrary or capricious or denied landowner due process of law, but whether landowner's property has been taken by inverse condemnation solely as a result of the change in the designation of the property from limited commercial to conservation/open space.

In a challenge to a regulation, statute or land use plan as a denial of substantive or procedural due process, the focus is on whether there has been an invalid exercise of police power. If proven, the remedy is monetary damages. When the claim is one as here that, while the exercise of the police power was valid, the regulation, statute or land use plan constitutes a taking of the landowner's property, the operative inquiry is whether the landowner has been deprived of all or substantially all economic, beneficial or productive use of the property. See generally City of Pompano Beach v. Yardarm Restaurant, Inc., 641 So.2d 1377, 1384-85 (Fla. 4th DCA 1994), review denied, 651 So.2d 1197 (Fla.), cert. denied, --- U.S. ----, 115 S.Ct. 2583, 132 L.Ed.2d 832 (1995); see also Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 57-58 (Fla.1994).

The United States Supreme Court discussed the delicate balance between the right of government to regulate and the right of the citizen to be compensated when private property is effectively taken for public purposes in Dolan v. City of Tigard, --- U.S. ----, ----, 114...