Tinnerman v. Palm Beach County

• Decision Date: 31 August 1994
• Docket Number: No. 91-3291,91-3291
• Citation: 641 So.2d 523
• Parties: 19 Fla. L. Weekly D1826 William R. TINNERMAN and William G. Robinson, Appellants, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 523

641 So.2d 523

19 Fla. L. Weekly D1826

William R. TINNERMAN and William G. Robinson, Appellants, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee.

No. 91-3291.

District Court of Appeal of Florida Fourth District.

Aug. 31, 1994.

John Beranek of Macfarlane, Ausley, Ferguson & McMullen, Tallahassee, for appellants.

Robert P. Banks, Asst. County Atty., West Palm Beach, for appellee.

PER CURIAM.

Appellants appeal a final judgment in which the trial court found their temporary taking claim was not ripe for judicial review, and appellants had failed to demonstrate a taking. We affirm on both grounds.

Appellants own a 4.81 acre parcel of property in Palm Beach County, Florida, on Delray West Road (State Road 806). In 1989, appellants petitioned appellee, Palm Beach County, to rezone the property from agricultural residential (AR) to general commercial (GC), with a concurrent special exception to permit a planned commercial development, including an office/warehouse. ¹ Appellee's planning and zoning board found the petitioned change in zoning was consistent with the county's comprehensive plan, and recommended approval subject to numerous conditions. Of importance in the instant case is condition 17(a), which read:

In order to comply with the mandatory traffic performance standards the Developer shall be restricted to the following phasing schedule:

a) No building permits other than the 26,040 square feet of office warehouse shall be issued until construction has begun for West Atlantic Avenue from Military Trail to Jog/Carter Road as a 6 lane section plus the appropriate paved tapers currently scheduled for the Fiscal Year 1991-1992. ²

On April 28, 1989, appellee, through its Board of County Commissioners (board), held a public hearing on appellants' petition. Concerns over increased traffic on Atlantic Avenue were raised at the hearing. Alternate uses for the property were discussed, such as a nursing home, that would generate fewer traffic problems. At one point, some of the commissioners moved to deny the petition so that appellants would have the flexibility to change their plans and come before the board a second time for approval of the alternate plan. However, the board did approve the zoning change petition, but altered condition 17(a) to read as follows:

In order to comply with the mandatory traffic performance standards the Developer shall be restricted to the following phasing schedule:

a) No building permits shall be issued until construction contracts have been let for West Atlantic Avenue from Military Trail to Jog/Carter Road as a 6 lane section plus the appropriate paved tapers.

(Emphasis added).

After the board's decision on April 28, 1989, appellants never sought, through the administrative inquiry process, to have the board reconsider its decision or to have the board assist them in finding other uses for their property. Appellants likewise did not seek a modification or variance to use the property in another way consistent with the code. Finally, appellants did not seek any short-term uses for the property.

On September 27, 1990, a public hearing was held by the board, where a modification of condition 17(a) was approved. The modification allowed appellants to obtain a building permit for the 26,040 square foot warehouse, but stated no other building permits would be issued until construction on Atlantic Avenue had begun. The board also approved the modification at a November 29, 1990, public meeting.

Meanwhile, in August 1989, appellants had filed a complaint in circuit court seeking declaratory relief and recovery for inverse condemnation. One of the issues to be decided involved ripeness. At trial, testimony concerning this issue centered upon whether the April 28, 1989, resolution by the board constituted final action. Ms. Kristin Kern, Executive Director of Palm Beach County Planning, Zoning and Building Department, stated that under applicable zoning regulations, the board has the authority to take final action on zoning matters. Specifically, the vote to approve or deny a petition "is the final action." Appellants' expert witness, Mr. Kieren Kilday, also testified the board takes final action on petitions. Both Kern and Kilday were interpreting the Palm Beach County Code when they discussed "final action."

The trial court found appellants' claim was not ripe for judicial review. A claim is not ripe until the government entity charged with implementing the regulation has made a final decision regarding the application of the regulation to the property. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986).

The ripeness doctrine serves two functions. First, the doctrine recognizes decisions are subject to change based on input from various and competing interests. It provides for an administrative or political resolution to disputes. Second, the ripeness requirement of a "final decision" enables a court to determine whether a taking has occurred and, if so, its extent. Without a final decision, it is impossible to determine whether the land has retained any reasonable beneficial use, or if expectation interests have been destroyed. Williamson, 473 U.S. at 189-91 n. 11, 105 S.Ct. at 3118 n. 11.

Because the zoning regulations provide that the board's action is "final action," appellants argue the board's decision on April 28, 1989, was a final decision which made their claim for a temporary taking ripe. However, the ripeness requirement of a final decision requires more than procedural finality because it includes an opportunity for government to change its mind. The county zoning regulations provide mechanisms to alter a decision of the board. Although the code is silent on obtaining variances when a use is approved, it provides for such steps as applying for modifications, or abandoning the special use.

After the board's decision on April 28, 1989, appellants took no steps to determine if an alternative development plan would have induced appellee to lift the building permit moratorium. They did not seek a modification or a variance. Also, the regulations provide numerous different uses for property zoned GC, and different levels of development. Appellants sought one of the more intensive uses for their property. They did not attempt to gain approval from the board for a less intense use.

Appellants assert it would have been futile to pursue any of these avenues. Futility is not established until at least one meaningful application has been filed. Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st DCA), rev. denied, 570 So.2d 1304 (Fla.1990). Appellant made no attempt to have the board alter its decision. Further, comments made by some of the commissioners suggest they may have been receptive to alternate uses of the property. Appellants' futility argument is purely speculative. ³ The trial court correctly held appellant's claim was not ripe for judicial review.

Despite finding appellants' claim not...