Town of Jupiter v. Alexander, 96-1693.

Decision Date16 September 1998
Docket NumberNo. 96-1693.,96-1693.
Citation747 So.2d 395
PartiesTOWN OF JUPITER, a municipal corporation, Appellant, v. Michele ALEXANDER, as Trustee, Appellee.
CourtFlorida District Court of Appeals

Susan L. Trevarthen and Nancy E. Stroud of Burke, Weaver & Prell, Boca Raton, and Thomas J. Baird, North Palm Beach, for appellant.

John Beranek of Ausley & McMullen, Tallahassee, and Fred H. Gelston of Damsel & Gelston, West Palm Beach, for appellee.

Thomas G. Pelham, Shaw P. Stiller and James Paull, IV of Apgar & Pelham, Tallahassee, and Jane Hayman, Deputy General Counsel, Tallahassee, for amicus curiae Florida League of Cities, Inc.

Stephanie M. Gehres, General Counsel, and Ross Stafford Burnaman, Assistant General Counsel, Tallahassee, for amicus curiae Department of Community Affairs.

WARNER, Judge.

This is the second appearance of this case in our court. In Alexander v. Town of Jupiter, 640 So.2d 79 (Fla. 4th DCA 1994)("Alexander I"), we held, contrary to the determination of the trial court, that the "ripeness doctrine" did not preclude consideration of an inverse condemnation claim for a temporary regulatory taking. We remanded the case for the trial court to determine whether a temporary taking had occurred in this case. On remand, a successor trial judge, after reviewing the prior proceedings, found a temporary taking and, consequently, ruled in favor of appellee and set the matter for a trial on damages. We have jurisdiction to consider the appeal of that order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), and we hold that the trial court erred. Specifically, we hold that appellee's two parcels should be considered part of a single tract for purposes of a takings analysis. Because the appellee was not deprived of all use of both parcels, no compensable taking occurred.

On June 3, 1988, appellee, Michele Alexander ("Alexander"), contracted with the owners of record, Mary and Richard Fullerton, to purchase property in the Town of Jupiter ("Town"), consisting of (1) a mainland parcel located between, and fronting on, Alternate A-1-A and the Loxahatchee River near the southern end of the Alternate A-1-A bridge over the river, and (2) an island, known as either Sawfish Bay Island or Fullerton Island, located about 500 yards southeast of the mainland parcel and adjacent to the western edge of the navigable Intra Coastal Waterway channel. The mainland parcel is between .3 and .4 acres in area; the island is about 12 acres in area, of which eight acres is dry upland while the rest is submerged bottomlands. Mary Fullerton had acquired the island property by deed from the state of Florida in 1961, and her son acquired an interest in both the mainland and island properties in 1976. On May 31, 1988, Richard and Mary Fullerton reconveyed both the mainland parcel and the island to themselves as joint tenants with right of survivorship. They then executed a contract of sale to Alexander.

The purchase price for both parcels was $2,220,000. The contract was subject to zoning restrictions, prohibitions, and other requirements imposed by government authority. Alexander was to place in escrow $5,500 as a payment toward the purchase price. She was given time to determine whether the island parcel had sufficient acreage and buildable lots to meet the contract requirements, at which point she was required to place additional monies in escrow.

At the time this contract was executed, the parcels were vacant. There is nothing in the record about previous use, beyond the fact that there is a dock on the mainland parcel. The island is known to have been used occasionally by boaters and Boy Scouts for camping and other passive pursuits. The island is heavily covered with mangroves, Australian pines and other vegetation and lacks direct access from the mainland other than by boat.

Under the Town's zoning ordinance, the mainland parcel was zoned C-2, which permits intensive development for hotels, retail stores or office buildings. The island was classified R-1, which allows single family residential units on lots of not less than 10,000 square feet, or approximately four units per acre, unless part of a Planned Unit Development (PUD).

In 1984, the Town considered changing the zoning of the island to rural residential in connection with its amendments to the 1978 comprehensive land use plan. The Town's 1985 revised comprehensive plan envisioned classification of the island for recreational and conservational use, as the island is located within the 100-year flood plain of the Loxahatchee River. This classification allows residential development, but the density is to be determined by applying a variety of criteria on a property by property basis. The minimum lot size within that classification is one acre, except in the case of a PUD, where density may be twice that.

After executing the purchase agreement, Alexander immediately incurred the disfavor of the Town by attempting both clearing activity on the island and repair of the mainland dock without permits. It was at that time that she was informed of the inconsistency between the island zoning and the comprehensive plan, which would have to be resolved before development was allowed. Subsequently, the Town began working on resolving the inconsistency.

Alexander then retained counsel, who arranged a meeting on August 30, 1988 among his client, her consultant, and several Town staff or officials. At this meeting, a Town official informed Alexander that an alternative approach available to her was to apply for a change of land use designation in the Town's comprehensive plan for the island parcel. The deadline for the then current window of opportunity was September 30, 1988. Normally it takes five or six months for the process to be completed. Alexander's lawyer filed such an application, seeking a change of designation for the island to R-1 residential.

On October 28, 1988, while Alexander's application for change in land use designation was pending, she submitted a proposed site plan to the Town for developing the property. Under this plan the island portion would have 23 residential lots, and support facilities would be located on the mainland parcel. The latter would include a covered parking structure, dumpsters, and a dock for a passenger ferry that would carry people to and from the island. She offered to furnish the Town with a police boat to serve the island, and also to house a fire-rescue vehicle there.

On November 7, 1988, the Town wrote Alexander saying that the site plan approval application could not be processed because of the inconsistency between the zoning and land use designations. In the letter, the Director of Public Services indicated that Alexander's pending land use amendment application might resolve the inconsistency. However, on November 8, 1988, the Town's Planning and Zoning Commission denied the application for change of the land use designation.

Alexander and her attorney attended a November 15, 1988 meeting of the Town Council. After counsel told them about Alexander's applications and what had happened with them, the council indicated that she could be granted a limited clearing permit. She then applied for and received a permit to clear and remove dead trees and vegetation. On November 28, 1988, at another Town Council meeting, it was suggested to Alexander that she explore a transfer of development rights from the island to some other parcel. She did explore this with Town staff over the next few months, and it looked promising; but Town's counsel still believed this, too, would be prevented by the inconsistency between the land use plan and the property's zoning classification.

Subsequently, Alexander changed her development plan. She requested a variance for the mainland portion of the property so that an office building could be constructed there. Some adjoining lots would be included so that the mainland lot would be 1.2 acres. The plan called for extra parking for the island and a dock for residents of the island. The Town staff reviewed this variance request and were concerned about density and insufficient parking. The Planning and Zoning Commission recommended denial. The Town Council did not vote on this variance request.

Next, Alexander and her representatives submitted a new site plan for a hotel on the mainland with amenities in support of the hotel to be located on the island. It was studied for about eight months, and several hearings of the planning board were held to discuss it.

Meanwhile, on May 19, 1989, Alexander had executed a superseding contract with the Fullertons, dropping the purchase price to $1,500,000 and the down payment to $500. An addendum provided for an automatic six-month extension of the stated closing date if the buyer filed a complaint against the Town in an effort to obtain a site plan.

On August 10, 1989, Alexander filed still another application for site plan approval. This plan called for ten residences on the island, with parking and the ferry dock on the mainland parcel. Then Alexander filed again for mandamus to compel the Town to approve the latest site plan.

The Town enacted, on March 1, 1990, a zoning ordinance amendment creating a conservation/residential zoning classification and applying it to the island parcel. Alexander then modified her latest site plan approval petition to an application under the new conservation/residential category. On May 15, 1990, the Town by ordinance granted Alexander a special exception to develop the property, and on May 21, 1990, an agreement for the development was entered into between Alexander and the Town. This agreement allowed her to develop both parts of the property, with ten garages and second-floor offices on the mainland portion and ten homesites, docks and an open recreation area on the island. Alexander subsequently received a clearing permit, and her platting of...

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