The URL can be used to link to this page

Home My WebLink Aboutsubmission - memoMEMORANDUM The following comments on the principal legal issues which arise from two items which appear on the February 26 Commission agenda: a proposed moratorium on the issuance of new building permits in the Biscayne Boulevard North SD-9 Overlay District and proposed revisions to the City of Miami's Zoning Ordinance affecting that district. Principally, both the temporary moratorium and the proposed new ordinance revisions call for certain uniform height limitations along the entirety of the Biscayne Boulevard North corridor. In addition, the proposed new ordinance relaxes setbacks and suggests design standards. The moratorium proposes that no new building permit applications be accepted for buildings exceeding forty feet in height' while new legislation is being drafted and approved or until 180 days have elapsed, whichever first occurs. The new ordinance was subject to extensive debate at the Planning Advisory Board and was transmitted to the Commission with reservations and considerable frustration because landowners, developers, architects, planners and neighbors were all unhappy with it. Indeed, the Chairman wanted to retain the ordinance at the Planning Advisory Board so as to improve on it. The ordinance was reported up to the Commission with proposed modifications largely at the request of residents who wanted both the moratorium and the ordinance before the Commission at the February 26 meeting. This memorandum addresses the principal legal issues presented. The SD-9 Biscayne Boulevard North Overlay District (Tab A) was created in the early 1990s.2 As set forth in Section 609.1 of the Zoning Ordinance, the district was declared to be "of special and substantial public interest" as a gateway to the city. It was created to "encourage appropriate development and to assure appropriate uses along the Boulevard...." Pursuant to the ordinance creating the SD-9 overlay district, no development could proceed which would affect "the height, 1 Although the Planning Advisory Board, with the consent of Planning & Zoning, approved a forty foot limit for the moratorium, Planning & Zoning contends that it really approved an 85-95 foot moratorium with only a recommendation for a forty foot limit for no other reason than the imposition now of a forty foot moratorium would purportedly violate legal advertising requirements applicable to zoning ordinances. This position appears legally incorrect. What is in fact happening is that the Commission is considering and has noticed hearings on a moratorium that the PAB did not recommend. We object. 2The recent amendments, effective for applications filed after January 1, 2004, are designed to set more specific parameters for the application of SD-9's requirements. This analysis applies equally to the old and new ordinances. S U B M 1 TT E D INTO T 1 E PUBLIC RECORD FO;. ITEM vz si ON .2-,0L-h-za permit. The purpose of the Class II special permit was to "ensure conformity of the application with the expressed intent" of the district. No specific mention is made of Major Use Special Permits ("MUSP's") called for in Section 1301.4 of the Zoning Ordinance, because they are required within the City generally whenever a project is so substantial that it presents an issue "of city-wide or area -wide importance." Section 1301.2 of the Zoning Ordinance provides that Class II permits are required where specified uses and/or occupancies involve "substantial technical issues relating to planning policy."3 Class II special permits are issued pursuant to Article 15 of the Zoning Ordinance. They require neither action by the Commission nor formal notice of hearing. In that regard, Class II permits must be distinguished from MUSP's which require public hearings. However, Section 1305.8 of the Zoning Ordinance (section 1300 of the new ordinance) makes clear that both classes of permits are to be reviewed under a standard which takes into account "potentially adverse effects generally on adjoining and nearby properties, the area, the neighborhood, or the city, of the use or occupancy as proposed, or its location, construction, design, character, scale or manner of operation." There are two Class II and two MUSPs projects in their preliminary stages and one MUSP in the application stage which implicate the SD-9 overlay district. Each of these matters involves the possible construction of a new building substantially in excess of the height limits imposed by the both the moratorium and the proposed new ordinance. Neighbors and neighborhood groups favor the enactment of the moratorium and an ordinance which would impose, generally, height limits of forty feet along the corridor with exceptions for certain "nodes" where more intensive development might be permitted. Residents also insist that any new ordinance preserve the existing ordinance's rear setbacks of between ten to twenty feet wherever property zoned commercial, office or multi -family residential abuts single family residential districts.4 This condition exists in respect to nearly all parcels in the SD-9 overlay district. The residents also point to provisions in the City's comprehensive plan and in a number of planning studies sponsored by the City (the Chesapeake Report of 1997; the Upper East Side Master Plan of 1999; and various drafts of the recent HOK charette report) as proof that good planning supports their position. They argue that both the comprehensive plan and the later reports set forth the considered judgment of professional urban planners as to the future development of 3 The new ordinance says "substantial issues relating to planning policy and impact on surrounding area as it relates to aesthetics." 4 Despite contrary language in the ordinance, Planning & Zoning argues that where the rear line of an 0 or C-1 parcel to be directed to an R-4 use abuts the side line of an R-1 lot, the rear setback of the 0 or C-1 parcel is not the twenty feet specified in the R-4 ordinance, but the smaller side yard setback required for the R-1 parcel. This position is contrary to the language of the ordinance and common sense, and can only be defended by citing to erroneous prior practice. the district. Residents argue that these plans and reports provide the proper context for the evaluation of the pending Class II and MUSP permits and mandate their denial. At the same time, it is clear that if the rear setbacks, parking requirements, green space requirements and other requirements contained within the existing Zoning Ordinance are left substantially undisturbed while height restrictions are imposed, the floor -to -area -ratio (FAR) of the properties will be less than the 1.72 limit imposed by the existing code. Planning & Zoning says that any reduction in FARs creates the possibility that landowners may bring suit against the City for what is pejoratively termed "down -zoning." As set forth below, this fear is unjustified and is not a valid consideration in assessing either the moratorium or the proposed ordinance. For background, attached are four opinions by various Florida district courts of appeal and a copy of what is known as the Bert Harris Act, adopted in 1995. (Tabs B-F). These authorities indicate, generally: 1. The zoning laws are to implement the comprehensive plan and they must be consistent with it. (Tab B, pg. 3). 2. A moratorium prohibiting the issuance of new building permits is lawful if imposed in connection with the creation or amendment of zoning restrictions consistent with a comprehensive plan. (Tab B, pg. 4) As a court stated: "In several ways temporary development moratoria promote effective planning. First, by preserving the status quo during the planning process, temporary moratoria insure that a community's problems are not exacerbated during the time it takes to formulate a regulatory scheme. Relatedly, temporary development moratoria prevent developers and land owners from racing to carry out development that is destructive of the community's interest before a new plan goes into effect. Such a race -to - development would permit property owners to evade the land -use plan and undermine its goals. Finally, the breathing room provided by temporary moratoria helps ensure that the planning process is responsive to the property owners and citizens who will be effected by the resulting land -use regulations." (Tab D, pg. 6) 3. The enactment of the SD-9 Overlay District in the early 1990s with its special permit requirements contradicts any contention by land owners that they are entitled as of right to the present ordinance's 1.72 FAR or the absence of height limitations. (Tabs D and E) Both the Monroe County v. Ambrose decision (as to which rehearing has been denied) and the language of the Bert Harris Act itself (Tab F) require a landowner who wishes to sue for an alleged "down -zoning" to prove that the governmental restriction in question has "inordinately burdened an existing use of real property or a vested right to a specific use of real property." The cases hold that no "vested right" exists where the landowner contracts to purchase land or pursues permits knowing that he must first meet requirements which are merely made more specific by the later imposition of restrictions consistent with the intent of permit requirements he knew he would have to comply with before he incurred costs in purchasing land or pursuing permits. In addition, the Act excludes from its definition of "existing use," future " foreseeable, nonspeculative land uses" which are "[in]compatible with adjacent land uses." The moratorium and the ordinance are specifically directed at ensuring compatibility. Further, to prevail on a Bert Harris claim, the landowner must demonstrate that he has been "inordinately burdened" by the restriction. To prove "inordinate burden" he must prove that he has been rendered "unable to attain the reasonable, investment -backed expectation" on his claimed "vested right" so that he is left with uses that force him "to bear permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be born by the public at large." In clarification, the Act goes on to say that a temporary impact to the vested right is not an "inordinate burden" (thereby leaving room for moratoria), and restrictions like those contemplated by the proposed moratorium and ordinance have long been accepted as valid planning tools designed to ensure compatibility of uses. In this case, restrictions like those contemplated by the proposed moratorium and ordinance do not contravene the Bert Harris Act because they merely clarify existing permit requirements regulating size, setbacks and bulk to protect neighboring properties, a concept which the Act specifically endorses. 4. Finally, the Commission will likely be asked to consider the impact of requests by parties presently seeking MUSP and Class II permits to proceed with them even though the projects under consideration would, if built, violate the terms of the moratorium and the height, bulk and setback requirements imposed by any revised zoning ordinance. At Tab G is a copy of section 2105.4 of the Zoning Ordinance. It permits a property owner who has filed a complete application for a "development permit[s]" to proceed with the application regardless of the subsequent repeal of zoning regulations unless the contrary is specifically decreed." (emphasis added) Building permits obtained as a consequence of such applications must be obtained within 180 days of the effective date of the new ordinance or 180 days from the date a final court decision is rendered upholding it. Parties opposing the projects which are currently under Class II and MUSP review request the Commission to make any new ordinance, apply to these efforts pursuant to the underlined language permitting retroactivity. It makes no sense for the Commission to impose specific height, bulk, setback and aesthetic controls and then permit immediately three or more special exceptions. The Commission has the authority to apply both the moratorium and any new restrictions to these projects. The long existence of the SD-9 district with its special permit requirements defeats any contention that a person pursuing these projects has a vested right in arguing that FAR maximum restrictions are in fact entitlements. Maintenance of the integrity of the neighborhoods is the duty of the Commission going back at least to the enactment of the SD-9 overlay in the early 1990's and confirmed by numerous subsequent planning documents created by professionals. To the extent that the Commission sacrifices that objective to preserve FAR maximums for persons who illegitimately claim that a maximum is an entitlement, the Commission is subjecting the City to serious legal risk to suits initiated by its residents. -# 1704078_v2 ZONING § 609.3 new construction or substantial expansion of an existing building, the applicant shall construct at their sole cost all improvements of the public streetscape from the base building line to the back of the curb to meet the standards of the Design Development Plan. (Ord. No. 12124, § 1, 9-25-01) Sec. 609. SD-9 Biscayne Boulevard North Overlay District. Sec. 609.1. Intent. Biscayne Boulevard North is one (1) of the major gateways to the City of Miami. This overlay district is of special and substantial public interest because of the need to upgrade the amenities and visual qualities of the boulevard. It is intended that future public and private development shall respect and enhance this gateway role by providing well landscaped development along the boulevard; to encourage appropriate development and to assure appropriate uses along the boulevard by modifying the use regulations of underlying districts. (Ord. No. 10863, § 1, 3-28-91; Ord. No. 11022, § 1, 11-12-92) Sec. 6092. Effect of SD-9 district designation. The effect of these SD-9 regulations shall be to modify regulations within portions of other zoning districts included within the SD boundaries to the extent indicated herein. (Ord. No. 10863, § 1, 3-28-91) Sec. 609.3. Class II Special Permit. 609.3.1. When required. A Class II Special Permit shall be required prior to approval of any permit (except special permits pursuant to article 13) affecting the height, bulk, location or exterior configuration of any existing building; or for the erection of any new building; demolition permits; or for the location, relocation or alteration of any structure, parking area or vehicular way visible from a public street. 609.3.2. Consideration in making Class II Special Permit determinations. The purpose of the Class II Special Permit shall be to ensure conformity of the application with the expressed intent of this district, with the general considerations listed in section 1305, and with the special considerations listed; below. In making determinations concerning construction of new principal buildings or substantial exterior alterations of existing principal buildings, the director of the planning, building and zoning . department shall obtain the recommendation of the Urban Development Review. $oardand consider applicable City of Miami design standards and guidelines. (1) Along Biscayne Boulevard, the pedestrian open space at, the ground floor frontage shall be so designed, improved and located to provide an attractively landscaped appearance using royal palms and other types of tropical plants suitable to its gateway role. Supp. No. 11 230' § 609.3 MIAMI, FLORIDA (2) Offstreet parking shall not be placed in required yards or required open space adjacent to Biscayne Boulevard, and vehicular entrances shall be prohibited along the boule- vard when access from other public rights -of -way is available. (3) Interim landscape. Prior to demolition and removal of existing structures, pavement and vegetation from a development site, the owner or developer shall be- required to obtain all demolition approvals and tree removal permits as necessary. The zoning official may require as a condition of approval for a demolition permit, that sites of demolition shall not be left in a barren, undeveloped state without commencement of vertical construction or revegetation within sixty (60) days of clearing. Revegetation shall include sodding with grasses or other ground cover to prevent soil erosion and' blowing of airborne particulate matters and debris. Owner will be required to maintain the landscape. 609.3.3. Limitation of use of chain link fence. Chain link fence shall not be placed in required open space adjacent to Biscayne Boulevard unless it is of a temporary nature to secure an unsafe structure prior to demolition or has been visually screened with landscape material. (Ord. No. 10863, § 1, 3-28-91; Ord. No. 11022, § 1, 11-12-92; Ord:No. 11258, § 1, 5-1-952) Sec. 609.4. Permitted principal uses and structures., Principal uses and structures are as permitted generally or conditionally by special permit in the underlying district, except the following uses shall not be permitted: 1. Bars, saloons and taverns. 2. Convalescent homes, nursing homes, institutions for the aged or infirm, foster homes, group homes and orphanages. 3. Hotels, residence hotels, motels, tourist homes, lodginghouses, single Toots occupancy facilities, guest homes and other transitory residential uses generally not evidenced by a leasehold transaction. 4. Community based residential facilities. 5. Private clubs, lodges, fraternities and sororities operated for profit. 6. Coin laundry operations. 7. Clinics, medical or dental. 8. Pool halls, billiard parlors, and game rooms. 9. Mortuaries and funeral homes. 10. •Used car sales, enclosed or unenclosed. 11. Unenclosed sales of new cars. 12 Automotive service and repairs. 13`' Ambulance service. A- Supp. No. 11 230. ZONING § 609.8 14. Sewing shops. 15. Hiring halls or labor pools. 16. Discount membership merchandisers. 17. Public storage facilities. 18. Vehicle rental facilities. 19. Aluminum recycling machines. (Ord. No. 10863, § 1, 3-28-91; Ord. No. 11022, § 1, 11-12-92; Ord. No. 11258, § 1, 5-1-95; Ord. No. 11385, § 2, 7-25-96; Ord. No. 11901, § 2, 2-17-00; Ord. No. 12034, § 2, 4=26-02) Sec. 609.5. Conditional principal uses. Same as for the underlying district with the limitations contained in section 609.4; and in addition, for the C-1 district only: 1. Commercial parking lots only by special exception, and only when designed to diminish the visual appearance of cars from Biscayne Boulevard. 2. Retail establishments operating from the hours of midnight to 6:00 a.m. only by Special Exception. (Ord. No. 11022, § 1, 11-12-92; Ord. No. 11258, § 1, 5-1-95; Ord. No. 11385, § 2, 7-25-96; Ord. No. 11901, § 2, 2-17-00; Ord. No. 12034, § 2, 4-26-02) Sec. 609.6. Principal accessory uses. Sarre as for the underlying district with the limitations contained in section 609.4. (Ord. No. 11022, § 1, 11-12-92; Ord. No. 12034, § 2, 4-26-02} Sec. 609.7. Conditional accessory uses. Same as for the underlying district with the limitations contained in section 609.4, and including the following: 1. A. Where the underlying district is 0 Office, photographic studios, outdoor photog- raphy and associated stage sets, only in conjunction with photographers offices, and only by Class II Special Permit; B. Where the underlying district is C-1, Restricted Commercial, outdoor photogra- phy and associated stage sets only in conjunction with photographers studios, and only by Class II Special Permit. (Ord. No. 11022, § 1, 11-12-92; Ord. No. 11767, § 2, 2-23-99) Sec. 609.8. Limitations on signs. See Article 10 for sign regulations and limitations. (Ord. No. 11022, § 1, 11-12-92; Ord. No. 11258, § 1, 5-1-95; Ord. No. 11315, § 1, 9-28-95; Ord. No. 11862, § 2, 11-19-99; Ord. No. 12213, § 2, 4-11-02) Supp. No. 11 230.5 § 610 MIAMI, FLORIDA Sec. 610. SD-10 Jackson Memorial Hospital Medical Center Overlay District. (Ord. No. 10749, § 1, 6-28-90; Ord. No. 10863, § 1, 3-28-91) Sec. 610.1. Intent. This district is of special and substantial public interest because it comprises various hospital and health care facilities and related facilities, the majority of which are governed by the Public Health Trust of Dade County, or by the University of Miami School of Medicine, or other entities which together provide the highest level of medical care to the public and private patients of Dade County and the City of Miami. It is the intent of this district to encourage the use of public transportation—Metrorail, Metromover and Metrobus-through incentives such as a shuttle system and the incentives provided in this district. Because of its central location and accessibility to public transportation and because of the unique nature of this coordinated health care delivery area, with the resulting unique problems and characteristics relating to parking spaces, traffic -flow, directional signs, and landscaping, it is the intentof this district, insofar as possible, to treat all the land in the district as a single entity, rather than individual parcels. (Ord. No. 10749, § 1, 6-28-90; Ord. No. 10863, § 1, 3-28-91) Sec. 610.2. Effect. The effect of these regulations shall be to modify regulations within portions of the existing zoning districts indicated in the official City of Miami zoning atlas which are located within the boundaries of this district. (Ord. No. 10749, § 1, 6-28-90; Ord. No. 10863, §.1, 3-28-91) Sec. 610.3. Class II Special Permit. 610.3.1. When required. No building permit shall be issued within the boundaries of the SD-10 districtaffecting the height, bulk, or location of any structure in excess of ten thousand: dollars ($10,000.00) or Supp. No. 11 230.6 590 So.2d 488 16 Fla. L. Weekly D2959 (Cite as: 590 So.2d 488) <KeyCite History> District Court of Appeal of Florida, Fourth District. GARDENS COUNTRY CLUB, INCORPORATED, a Florida corporation, Appellant, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee. No. 90-0247. Nov. 27, 1991. Clarification Denied Jan. 22, 1992. Country club brought action against county to require it to grant club's application for rezoning and special exception in compliance with existing comprehensive plan. The Circuit Court, Palm Beach County, Stephen A. Rapp, J., ruled for county, and country club appealed. The District Court of Appeal held that county's failure to consider country club's application was improper, since county failed to pass either amendment to comprehensive plan or zoning ordinance that would preclude approval of country club's application. Reversed and remanded. West Headnotes [1] Zoning and Planning a 30 414k30 Most Cited Cases Comprehensive plan is limitation on government's otherwise broad zoning powers; zoning laws implement comprehensive plan and must be consistent with it. West's F.S.A. § 163.01 et seq. [2] Zoning and Planning a 30 414k30 Most Cited Cases Neither the "fairly debatable" nor the "zoning in progress" zoning rule is applicable in comprehensive plan case; zoning and planning have different functions. Page 1 [3] Zoning and Planning a 192 414k192 Most Cited Cases "Zoning in progress" rule did not prevent country club from challenging county's failure to consider club's application for rezoning which was in compliance with existing comprehensive plan, even though club had knowledge of pending change in comprehensive plan which would be inconsistent with its proposal. West's F.S.A § 163.3197. [4] Zoning and Planning a 192 414k192 Most Cited Cases [4] Zoning and Planning a 533 414k533 Most Cited Cases County ordinance directing staff to defer consideration of application for development not consistent with contemplated future comprehensive plan was ineffective either as zoning ordinance or as amendment to current comprehensive plan; county was required to consider application for rezoning and special exception that was in compliance with existing regulations in light of comprehensive plan then in effect. West's F.S.A. § 163.3197. *488 Edna Caruso of Edna L. Caruso, P.A., Bruce G. Kaleita, West Palm Beach, and Gerald S. Lesher of Cooney, Ward, Lesher & Damon, West Palm Beach, for appellant. Lee Rosenthal of the Palm Beach County Atty.'s Office, West Palm Beach, for appellee. *489 OPINION ON REHEARING PER CURIAM. We grant the motion for rehearing, vacate the opinion previously filed in this case, and substitute the following. Appellant Gardens Country Club, (the club), appeals from a final judgment of the circuit court upholding the county's denial of zoning relief. Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 590 So.2d 488 Page 2 (Cite as: 590 So.2d 488, *489) The parties have stipulated to the factual background of this case which includes, inter alia, the following pertinent facts: `:.On December 14, 1988, the club contracted to purchase 734 acres of ` land in Palm Beach Gardens which, under the -then -existing 1980 County Comprehensive Land Use Plan, authorized the property to be designated either Agricultural (AR) or Residential Estate (RE). The AR classification permitted one dwelling unit per five acres and the RE category allowed one dwelling unit per two and one-half acres or one unit per two acres in a planned unit development (PUD). At the time the purchase agreement was executed, the county had under consideration a revision of the 1980 Comprehensive Plan that would permit a density on the subject property of only one unit per twenty acres. The purchase contract allowed the club to avoid the transaction if the club was unable to obtain approval of satisfactory land use restrictions on the property. The club entered into negotiations with the county in an attempt to avoid application of the more severe density restrictions to the development but was unsuccessful in the endeavor. Thus, on February 27, 1989, the club filed a formal application for use of the land as a PUD with a density of one unit per two acres as required by the 1980 Comprehensive Plan. The application was reviewed for certification to the county commission, but was found insufficient because (1) the density and acreage data were omitted, (2) the operation agreement for the on -site sewer plant was not acceptable, and (3) a road access had to be changed. Those deficiencies were corrected and the application was scheduled to come before the planning commission at its April 17, 1989, meeting. However, the application was not certified at that meeting because, in the interim, the county commission, on March 29, 1989, had directed its staff not to certify any applications that were not consistent with the density requirements of the incipient 1989 Comprehensive Land Use Plan. That directive became the subject of ordinance 89- 10 on July 5, 1989. On May 8, 1989, the club filed a complaint against the county to require it to grant the club's application for use of the property in accordance with the 1980 Comprehensive Plan, to hold the county estopped from enforcing county ordinance 89-10 enacted subsequent to the club's application, and for damages for "taking" the club's property. The trial court entered judgment in favor of the county, holding, among other things, that based upon Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), rev. dismissed, 403 So.2d 407 (F1a.1981), equitable relief was unavailable to the club because it had actual knowledge of the county's intention to revise its 1980 Comprehensive Plan, which would result in limiting the density allowable on the club's property. Furthermore, the trial court denied the request to invalidate county ordinance 89-10 or the 1989 Comprehensive Plan, and it found that the action of the county did not deprive the club of all beneficial use of the property. On appeal the club suggests the trial court erred in ruling that the club's knowledge of the pending change precluded it from relying on the old or existing plan, which the club contends remained effective until August 1989 when the "new" 1989 County Comprehensive Land Use Plan was actually adopted. The club argues that the accepted legal principles of "zoning in progress" and the "fairly debatable rule" are not applicable in the setting of comprehensive plans but are confined to zoning cases. Furthermore, it is argued that the only ordinance relevant here is ordinance 89-10, on which the county relies. That ordinance, however, was improperly enacted vis-a-vis a modification of the 1980 Comprehensive *490 Land Use Plan and, in addition, was enacted long after the club's application was filed. The county suggests, to the contrary, that the club's knowledge that the county had under consideration various changes to the 1980 Comprehensive Plan precludes the equitable and legal relief sought because of the "zoning Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 590 So.2d 488 Page 3 (Cite as: 590 So.2d 488, *490 ) in progress" rationale. It is noteworthy that the county concedes its ordinance 89-10 was not a "moratorium ordinance" and that it merely directed that all applications for residential zoning be reviewed for compliance with the contemplated comprehensive plan. The club's amended complaint alleged that, on February 27, 1989, it filed an application to use the property as a PUD with a density of one unit per two acres. These allegations were admitted by the county in its answer. The record further contains a trial memorandum filed by the county with the trial court which states that "[o]n April 17, 1989, the defendant's [the club] application for rezoning and special exception was in compliance with existing regulations." (Emphasis added). In view of this memo in the record, it seems to us that the critical issue is the authority of the county to refuse to allow the club to develop its property in conformity with a density provided by the existing 1980 Comprehensive Plan and to require the club to meet the more rigorous requirements of the 1989 Comprehensive Plan adopted long after the club's application had been filed. Resolution of that issue depends upon whether there is a distinction between a comprehensive plan and zoning ordinances in applying settled legal principles. [1] In Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1987), rev. denied, 529 So.2d 694 (F1a.1988), the court explained the difference between planning and zoning functions as follows: A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. § 163.3167(1), F1a.Stat. (1985); Southwest Ranches Homeowners Ass 'n v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). The plan is likened to a constitution for all future development within the governmental boundary. O'Loane v. O'Rourke, 231 Cal.App.2d 774, 782, 42 Ca1.Rptr. 283, 288 (1965). Zoning, on the other hand, is the means by which the comprehensive plan is implemented, City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984), and involves the exercise of discretionary powers within limits imposed by the plan, Baker v. Milwaukee [271 Or. 500], 533 P.2d [772] at 775 (1975). It is said that a zoning action not in accordance with a comprehensive plan is ultra vires. Haar, In Accordance With A Comprehensive Plan [68 Harv. L. Rev. ], at 1156. As the court said in Machado, comprehensive planning provisions as envisioned in Chapter 163, Florida Statutes, are not zoning laws. The zoning laws implement the comprehensive plan, and they must be consistent with it. To that extent the comprehensive plan is a limitation on a government's otherwise broad zoning powers. City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984), rev. denied, 469 So.2d 749 (F1a.1985). Finally, section 163.3194(1Xb), Florida Statutes (1989), provides, in pertinent part, as follows: During the interim period when the provisions of the most recently adopted comprehensive plan, or element or portion thereof, and the land development regulations are inconsistent, the provisions of the most recently adopted comprehensive plan, or element or portion thereof, shall govern any action taken in regard to an application for a development order. Section 163.3197, Florida Statutes (1989), also expressly provides that where, prior to the adoption of a revised plan, a local government has adopted a comprehensive plan, that plan shall have such force and effect as it had at the date of its adoption until a new revised comprehensive plan is adopted by the local government pursuant to the Local Government Comprehensive Planning Act. *491 It thus appears that with regard to the property in the present case, at all pertinent times, it was subject to the provisions of the 1980 Comprehensive Plan and not Llic t989 Comprehensive Plan adopted by the county in August, 1989. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 590 So.2d 488 Page 4 (Cite as: 590 So.2d 488, *491) [2][3] The trial court relied upon Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), rev. dismissed, 403 So.2d 407 (F1a.1981), for the proposition that, as the club was aware of the county's intention to revise the 1980 Comprehensive Plan, the club is precluded from relying on the 1980 Comprehensive Plan under the "zoning in progress" rationale. However, Smith is a zoning, not a planning, case. Neither the "fairly debatable" nor the "zoning in progress" zoning rule is applicable here because of the different functions of planning and zoning. For example, as pointed out above, Chapter 163 provides that the existing comprehensive plan provisions are effective and shall have the force and effect they had the day they were adopted until changed by a subsequent comprehensive planning law. [4] The county could have avoided this controversy had it enacted a moratorium ordinance pending its consideration of the comprehensive plan's revision, but it did not do so. As the court stated in Franklin County v. Leisure Properties, Ltd., 430 So.2d 475, 481 (Fla. 1st DCA), rev. denied, 440 So.2d 352 (F1a.1983): A local government may be confronted with the need to amend its current plan prior to the adoption of a new plan in order to prevent the establishment of undesirable construction which would be inconsistent with the goals of the new plan. Nothing in section 163.3197 prohibits such an amendment. Nevertheless, we affinn the summary judgment on Count III on the ground that the county did not comply with statutory procedural requirements in enacting the moratoria. We hold that the ordinance passed June 20, 1989, was an after -the -fact effort to dignify the county's resolution of April 6, 1989, directing staff to defer any application not consistent with the contemplated 1989 Comprehensive Plan. Furthermore, ordinance 89-10 was ineffective as a zoning ordinance to the extent a' s`with the pronsio�is of eec>ic [i eit enacted. Ordinance 89 10 ;purports.. to nunify that statutory ,provision as of the date of the passage' of the ordinance. In view of the foregoing, we reverse the judgment appealed from and remand the cause to the trial court with directions to reconsider appellant's application in the light of the provisions of the 1980 Comprehensive Plan. DOWNEY and HERSEY, JJ., and FRANK, RICHARD H., Associate Judge, concur. 590 So.2d 488, 16 Fla. L. Weekly D2959 END OF DOCUMENT Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 23 Fla. L. Weekly D682 (Cite as: 712 So.2d 398) <KeyCite History> District Court of Appeal of Florida, Fourth District. GARDENS COUNTRY CLUB, INC., a Florida Corporation, Appellant, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee. Nos. 96-1165, 96-4189. March 11, 1998. Rehearing Denied April 16, 1998. Country club brought action against county to require it to grant club's application for rezoning and special exception in compliance with existing comprehensive plan, after county refused to consider application that did not comply with proposed plan with different density requirements. The Circuit Court, Palm Beach County, Stephen A. Rapp, J., ruled for county, and on appeal the District Court of Appeal, 590 So.2d 488, reversed and remanded, determining county's failure to consider country club's application was improper. On remand, the Circuit Court, Palm Beach County, Thomas E. Sholts, J., ruled in favor of county, determining that there was no total temporary taking of property in question and that right to develop property was not constitutionally protected and denial was not arbitrary or capricious. County club appealed. The District Court of Appeal, Warner, J., held that: (1) case was ripe under futility exception to ripeness doctrine; (2) partial temporary taking from regulation requires compensation if it amounts to a deprivation of substantially all economically beneficial use of the property; (3) regulation did not deprive country club of substantially all economically beneficial use of property where remaining value was $3,000 per acre; (4) refusal to consider application under then - existing plan precluded substantial use of land and constituted property right subject to due process protections for § 1983 purposes; but (5) under as -applied challenge, county's refusal attempting to effectuate amendment and not Page 1 to allow inconsistent development sat 4i. 7.e;d rational basis test. Affirmed. West Headnotes [1] Eminent Domain <, 277 148k277 Most Cited Cases Ripeness doctrine requires, as essential prerequisite to regulatory takings claim, a final and authoritative determination of the type and intensity of development legally permitted on the subject property. [2] Eminent Domain <, 277 148k277 Most Cited Cases There is futility exception to the ripeness doctrine in regulatory takings claims that can render a case ripe for review despite failure to obtain final and authoritative determination of type and intensity of development legally permitted on subject property. [31 Eminent Domain 2(1) 148k2(1) Most Cited Cases [31 Eminent Domain € 114.1 148k114.1 Most Cited Cases Taking occurs substantially all productive use where regulation denies economically beneficial or of land, and temporary deprivation may constitute a taking. [4] Eminent Domain G 2(1) 148k2(1) Most Cited Cases Partial temporary taking based on regulation occurs, and requires compensation, if it amounts to a deprivation of substantially all economically beneficial use of the property. [5] Eminent Domain € 2(1) 148k2(1) Most Cited Cases Factual inquiry as to whether ,• g,; I ; .+, i (1,xt amounted to a taking includes a.nalvs,v :)r' ; Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works Wew 712 So.2d 398 Page 2 (Cite as: 712 So.2d 398) economic impact of regulation on claimant and (2) extent to which regulation has interfered with reasonable investment -backed expectations. [6] Eminent Domain 2(1.2) 148k2(1.2) Most Cited Cases Determination that county ordinance and county's refusal to certify development application inconsistent with proposed revised comprehensive plan that changed density requirements was not inverse condemnation, as regulation did not deprive owner of substantially all economically beneficial use of property, was supported by finding that value of land before county refusal for rezoning under former comprehensive plan was $8,000 per acre and after refusal was $3,000 per acre, as remaining value was more than negligible amount and constituted significant benefit. [7] Civil Rights C= 1071 78k1071 Most Cited Cases (Formerly 78k130) To prove compensable section 1983 claim related to property, property owner must first show deprivation of a constitutionally protected interest, and secondly, court must determine that deprivation was result of abuse of governmental power such that government acted arbitrarily and unreasonably depriving property owner of constitutionally protected interest. U.S.C.A. § 1983. [8] Civil Rights G , 1073 78k1073 Most Cited Cases (Formerly 78k130.5, 78k130) in its 42 Arbitrary and capricious due process claim under section 1983 related to property may be based upon the effect legislative determinations such as zoning have upon the property. 42 U.S.C.A. § 1983. [9] Civil Rights 1073 78k1073 Most Cited Cases (Formerly 78k130.5, 78k130) Property owner had vested right, sufficient to bring section 1983 claim, to have county consider proposed development under then - existing comprehensive plan, and where county refused to consider any development submitted pursuant to that plan and instead would consider only plans submitted in conformance with proposed comprehensive plan that reduced density from one unit per five acres to one unit per twenty acres, county precluded a substantial use of its land. 42 U.S.C.A. § 1983. [101 Civil Rights 1028 78k1028 Most Cited Cases (Formerly 78k109) [101 Civil Rights G ,1453 78k1453 Most Cited Cases (Formerly 78k264) [101 Civil Rights 1460 78k1460 Most Cited Cases (Formerly 78k269.1) Arbitrary and capricious due process claim under section 1983 can be either a facial or an as -applied challenge; on as -applied challenge, remedy is an injunction preventing unconstitutional application of regulation to plaintiffs property and/or damages resulting from the unconstitutional application. 42 U.S.C.A. § 1983. [11] Constitutional Law G= 251.3 92k251.3 Most Cited Cases Relation Substantive due process challenges are analyzed under the rational basis test; that is, legislative governmental act will not be considered arbitrary and capricious if it has a rational relationship with a legitimate general welfare concern. U.S.C.A. Const.Amends. 5, 14. [12] Constitutional Law 278.2(1) 92k278.2(1) Most Cited Cases [12] Zoning and Planning G� 376 414k376 Most Cited Cases County's failure to consider proposed Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 Page 3 (Cite as: 712 So.2d 398) development under then -existing comprehensive plan, and instead considering it only under pending plan that changed density requirement, while a deprivation of property owner's right subject to due process protection under section 1983, was justified under rational basis test; county was undertaking general revision of comprehensive plan prior to receiving application and did not wish to permit development inconsistent with plan under consideration. U.S.C.A. Const.Amends. 5, 14; 42 U.S.C.A. § 1983. *399 Steven L. Robbins of DeSantis, Gaskill, Smith & Shenkman, P.A., North Palm Beach, and Edna L. Carusa of Carusa, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant. Robert P. Banks, Assistant County Attorney, West Palm Beach, for appellee. WARNER, Judge. In ruling in favor of the County on Gardens Country Club's ("Gardens") complaint for inverse condemnation and violation of its substantive due process rights, the trial court determined that while the claims were ripe for review, there had been no total temporary taking of the property in question. The trial court also found that Gardens' vested right to develop the property in connection with the then -existing comprehensive plan did not rise to the level of a constitutionally protected property interest and, in the alternative, *400 that the County's action in denying development had not been arbitrary or capricious. We affirm on both issues. This is the second appearance of this case in this court. Gardens Country Club, Inc. v. Palm Beach County, 590 So.2d 488 (Fla. 4th DCA 1991) ("Gardens I "), provides the essential facts of the dealings between the parties leading up to the present suit: On December 14, 1988, the club contracted to purchase 734 acres of land in Palm Beach Gardens which, under the then -existing 1980 County Comprehensive Land Use Plan, authorized the property to be designated either Agricultural (AR) or Residential Estate (RE). The AR classification permitted one dwelling unit per five acres and the RE category allowed one dwelling unit per two and one-half or one unit per two acres in a planned unit development (PUD). At the time the purchase agreement was executed, the county had under consideration a revision of the 1980 Comprehensive Plan that would permit a density on the subject property of only one unit per twenty acres. The purchase contract allowed the club to avoid the transaction if the club was unable to obtain approval of satisfactory land use restrictions on the property. The club entered into negotiations with the county in an attempt to avoid application of the more severe density restrictions to the development but was unsuccessful in the endeavor. Thus, on February 27, 1989, the club filed a formal application for use of the land as a PUD with a density of one unit per two acres as required by the 1980 Comprehensive Plan. The application was reviewed for certification to the county commission, but was found insufficient because (1) the density and acreage data were omitted, (2) the operation agreement for the on -site sewer plant was not acceptable, and (3) a road access had to be changed. Those deficiencies were corrected and the application was scheduled to come before the planning commission at its April 17, 1989, meeting. However, the application was not certified at that meeting because, in the interim, the county commission, on March 29, 1989, had directed its staff not to certify any applications that were not consistent with the density requirements of the incipient 1989 Comprehensive Land Use Plan. That directive became the subject of ordinance 89-10 on July 5, 1989. On May 8, 1989, the club filed a complaint against the county to require it to grant the club's application for use of the property in accordance with the 1980 Comprehensive Plan, to hold the county estopped from enforcing county ordinance 89-10 enacted subsequent to the club's application, and for damages for "taking" the club's property, The record further contains a trial memorandum filed by the county with the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 Page 4 (Cite as: 712 So.2d 398, *400 ) trial court which states that loin April 17, 1989, the defendant's [the club] application for rezoning and special exception was in compliance with existing regulations." (Emphasis added). Id. at 489-90. The trial court entered judgment in favor of the County, but this court reversed, holding that ordinance 89-10 conflicted with section 163.3197, Florida Statutes (1989), which provides that an existing comprehensive plan shall continue to have the same force and effect that it had on the date of its adoption until the local government adopts a new revised comprehensive plan, pursuant to the Local Government Comprehensive Planning Act. See id. at 491. Thus, the ordinance was invalid to the extent that it conflicted with the state statute. We remanded for the trial court to reconsider Gardens's application in light of the 1980 Comprehensive Plan. See id. While the appeal in Gardens I was pending, Gardens sought annexation of its property into the City of Palm Beach Gardens, which anne cation occurred on 1+Iarch' 21, 1991. EThe ultimately approved Gardens's development plan, which included a density of one sumt per two acres, the density Gardens had previously requested from the county. Gardens then filed a supplemental complaint after remand from this court, seeking damages pursuant to 42 i; U.S.C. section 1983 for ton of Garden's due process rights *401 r inverse condemnation -fora temporary.: takig of its property. the court granted the County's motion for summary judgment on the section 1983 claim. As to the takings claim (count II), the trial court held a non jury trial. See Department of Agric. and Consumer Servs. v. Mid -Florida Growers, Inc., 521 So.2d 101 (F1a.1988) (in inverse condemnation suit, trial court decides whether taking has occurred and jury decides what is just compensation). The trial court concluded that Gardens's takings claim was ripe for adjudication, but it found that no taking had occurred because the County's actions, "although unlawful" pursuant to Gardens I, did not deprive Gardens of substantially all economically beneficial use of its property. In reaching this conclusion, the trial court compared the property's before and after fair market values --before the county refused to rezone the property, it had a value of $8,000/acre, and afterwards, a value oa'f $3,000/acre. Since the property was still worth $2.2 million, the court concluded that Gardens had not been deprived of substantially all economically beneficial use of its property. The trial court also found that while Gardens had proved some investment - backed expectations, the reasonableness of these expectations was questionable. Gardens appeals from this final judgment. 111[21 The County claims that the case was not ripe for consideration of a takings claim because Gardens did not submit a plan for development under the proposed 1989 Comprehensive Plan. The ripeness doctrine requires, as an essential prerequisite to a regulatory takings claim, a final and authoritative determination of the type and intensity of development legally permitted on the subject property. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986); Williamson County Reg Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985). However, there is a futility exception to the ripeness doctrine. See Tinnerman v. Palm Beach County, 641 So.2d 523 (Fla. 4th DCA 1994); Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st DCA 1990). In the instant case, the trial court found that the only application which the County would have considered was an application consistent with the proposed 1989 comprehensive plan which allowed for densities of one unit per twenty acres, instead of the one per five density permitted in the 1980 Comprehensive Plan. Thus, the County's continued refusal to certify an application under the 1980 Comprehensive Plan, together with ordinance 89-10's requirement that all developments comply with the proposed revised comprehensive plan to be certified for approval, shows the futility of applying for any other development plans consistent with the 1980 Comprehensive Plan. Based on the futility exception, we find that the case is ripe for review. Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 Page 5 (Cite as: 712 So.2d 398, *401) We must first address whether the County's action in enacting ordinance 89-10 and refusing to certify applications inconsistent with the proposed revised comprehensive plan amounted to a due process deprivation or to a "taking." In Tampa -Hillsborough County Expressway Authority v. A.G. W.S. Corp., 640 So.2d 54 (F1a.1994), the supreme court explained the difference, quoting from Judge Griffin's concurring opinion in Department of Transportation v. Weisenfeld, 617 So.2d 1071, 1080 (Fla. 5th DCA 1993), approved, 640 So.2d 73 (F1a.1994), as follows: The fifth amendment contains two discrete protections: "No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. The first of these is commonly called the "police power;" the second is the power of eminent domain. Patrick Wiseman, When the End Justifies the Means: Understanding Takings Jurisprudence In a Legal System With Integrity, 63 St. John's L.Rev. 433, 437 (1988). Tampa -Hillsborough, 640 So.2d at 57. The supreme court further explained: Thus, it is evident that while both constitutional theories involve "takings" and "police power," the analysis under due process is different from the analysis under just compensation. Regulations found by the courts to be invalid because they deprive landowners of substantially all use of their property without compensation are not ordinarily *402 struck down as unconstitutional. The government is forced to choose between paying just compensation to keep the regulation in effect or removing the regulation. In situations where state action is declared an improper exercise of police power under due process, the regulation is simply declared unconstitutional. Therefore, a land use regulation can be held facially unconstitutional without a finding that there was an uncompensated taking. The fact that we chose to strike down the statute in Joint Ventures [v. Department of Transportation, 563 So.2d 622 (F1a.1990) ] clearly demonstrates that our decision was grounded upon due process considerations. Had we intended our decision to mean that the filing of the map of reservation constituted a per se taking, we would have left the statute intact. Id. In Gardens I, we invalidated ordinance 89-10 and remanded for the trial court to reconsider the application under the 1980 Comprehensive Plan. Thus, we considered the issue as a due process deprivation, rather than a just compensation taking. Otherwise, similar to Joint Ventures, we would have upheld the ordinance and considered it a per se taking of Gardens's property. (3](4] Nevertheless, Tampa -Hillsborough points out that "Ea], taking occurs where re ation denies substantially .. all eeonoi Beneficial or productive ` use of land. Moreover, . a temporary deprivation ' may constitute a taking." ` 640 So.2d at 58 (citing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)). In First English, the county passed a moratorium prohibiting all building in a flood prone area. The Supreme Court held that even though the .- ordinance may subsequently be declared invalid or be withdrawn by the county, where a landowner is denied all use of his property under the ordinance, a temporary taking occurs which demands. a -remedy under the just compensation clause. See 482 U.S. at 318, 107 S.Ct. at 2388. Although Tampa- Hillsborough relies on First English, it actually expands its holding to cases involving the deprivation of "substantially all economically beneficial or productive use of land," instead of simply all use of property as set forth in First English. See Tampa -Hillsborough, 640 So.2d at 58. We conclude, therefore, that a partial temporary taking requires compensation under Tampa - Hillsborough if it amounts to a deprivation of substantially all economically beneficial use of the property. Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 Page 6 (Cite as: 712 So.2d 398, *402 ) economic impact of the regulation on the claimant and (2) ` the extent to .which the regulation has interfered with reasonable invebtuient- backed expectations. SeeiReahard v. Lee County, 30 F.3d 1412 (llth Cir.1994), cert. denied, 514 U.S. 1064, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995). The trial court made an evaluation of whether Gardens was deprived of substantially all economically beneficial use of the property based upon the evidence presented at trial. The trial court found that the value of the land before the County refused the application for rezoning under the 1980 Comprehensive Plan was $8,000 per acre and after the County refused to consider the rezoning application was $3,000 per acre. As the remaining value was more than a negligible amount and constituted a significant benefit, the trial court determined that it did not constitute ' a . taking Of substantially all economic benefit. The court also reviewed the evidence as to what the investment- backed expectations of the owners were and concluded that these expectations were not reasonable. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1380 (F1a.1981); see also Florida Game and Fresh Water Fish Comm'n v. Flotilla, Inc., 636 So.2d 761 (Fla. 2d DCA 1994). As there is competent substantial evidence to support the court's findings, we affirm as to the inverse condemnation claim. Gardens also sought relief in its supplemental complaint pursuant to 42 U S 0 section alleging: it had a liberty or property interest in having its application *403 certified and heard; the County had directed its staff not to consider any applications for rezoning not in conformance with the 1989 Comprehensive Plan; the County's actions were arbitrary and capricious; and it had suffered resulting damages in its expenditure of fees and costs in establishing the right to have its rezoning application heard. Gardens also sought costs associated with maintaining its interest in the subject property. [7][8] A property owner must meet two prongs in order to prove a compensable claim under 42 U.S.C. section 1983. First, there must be a deprivation of a constitutionally protected interest. Second, the court must determine that the deprivation was the result of an abuse of governmental power such that the government acted arbitrarily and unreasonably in depriving the property owner of its constitutionally protected interest. See Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (llth Cir.1991). The Executive court noted that, as to the first prong, the plaintiffs alleged that the value of their property had diminished significantly as a result of the County Commission's action in refusing to rezone their property. The court said that, "[i]f the plaintiffs prove that this diminution was more than a simple fluctuation in value incident to governmental decisionmaking, which is a noncompensable hazard of ownership, then they will have shown a deprivation of a property right." Id. (citations omitted). Thus, an arbitrary and capricious due process claim may be based upon the effect on the value of property of legislative determinations such as zoning. The County argues that under McKinney v. Pate, 20 F.3d 1550 (llth Cir.1994), cert. denied by McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), Gardens does not have a constitutionally protected interest because its interest is one created by state law, namely a right to a zoning classification. Although the McKinney court determined that substantive due process protection did not include rights created by state law only, it specifically limited its holding to "executive acts" and found that its analysis regarding the substantive/procedural distinction would be "inappropriate" for "Legislative" acts. Id. at 1557 n. 9. This is clarified in Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (llth Cir.1997), in which the court considered the county's down -zoning of the landowner's property, which it assumed for purposes of the opinion was a legislative act. In considering the landowner's arbitrary and capricious due process claim, the court stated, "[al landowner's vested rights created by state law may indeed constitute property subject to the arbitrary and capricious substantive due process protections under the federal Constitution." Id. at 614 (citations omitted). Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 Page 7 (Cite as: 712 So.2d 398, *403) Thus, we reject the County's reliance on McKinney. [9] In granting summary judgment, the trial court determined that Gardens did not have a constitutionally protected interest. We disagree with this finding. Gardens claimed that it had been denied a lawful use of its property by the legislative act of the county in passing ordinance 89-10 and refusing to certify its application for development, a fact pattern analogous to the one in Villas of Lake Jackson. The trial court reasoned that Gardens I did not require the County to approve the development submitted by Gardens, but merely to consider the plan under the 1980 Comprehensive Plan instead of the 1989 Comprehensive Plan. In reviewing the development plan, the County had the discretion to deny the application on other grounds even under the 1980 Comprehensive Plan, and it did not have to approve the maximum density allowed under the plan. See Board of County Conun'rs of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla.1993). While we agree that the County may have had' some discretion to °deny:a request'for"rezoning under the 1980 'Comprehensive Plan," the County refused to even consider any development submitted pursuant to' that plan and instead would consider , only plans submitted in conformance with the '`1989 Comprehensive;. Plan`which'reduced density from one unit per free" acres to . - one ; unit Per twenty -acres. Gardens challenged the County's actions'" in refusing to consider any rezoning application under the 1980 Comprehensive Plan. The Lr7"uri *40 a om ` tare These: co deci�o; of Gardens ugh its' directions to staff and enactment of ordinance 89-10. ir,costa oligZ1Because e a valid application for rezoning under the 1980 Comprehensive Plan, which the County stipulated was fully in compliance with existing regulation, it had a vested right to have the County consider its development under the 1980 Comprehensive Plan. By denying Gardens this right, the county precluded a substantial use of its land, because the zoning on its property was reduced to no more than one unit per twenty acres of land. We consider this a property right subject to due process protections. See Villas of Lake Jackson. [10] As to the second prong which a property owner must meet to prove a compensable claim under section 1983, in Eide v. Sarasota County, 908 F.2d 716 (llth Cir.1990), the court explained that an arbitrary and capricious due process claim could be either a facial or an as - applied challenge. "In the case of an as applied challenge, the remedy is an injunction preventing the unconstitutional application of the regulation to plaintiff's property and/or damages resulting from the unconstitutional application." Id. at 722. Garden's initial complaint in this cause sought to prevent the application of ordinance 89-10 to its property and to prevent the County's direction to its staff not to certify any rezoning requests which were not in conformance with the 1989 Comprehensive Plan. Thus, it was an as - applied challenge to the ordinance. Its supplemental complaint under section 1983 simply requests the consequential damages which it incurred as a result of the unconstitutional application of the ordinance and directives to its property. [11][12] The trial court determined that the action of the board was not arbitrary or capricious so as to amount to an invalid exercise of its police. adoption `of a ier comprehensive - plii. ' See Condor" Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir.1990). Substantive due process challenges are analyzed under the rational basis test; that is, a legislative act of the government will not be considered arbitrary and capricious if it has "a rational relationship with a legitimate general welfare concern." Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208 (llth Cir.1995) (quoting Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1388 (llth Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994)). In the instant Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 712 So.2d 398 (Cite as: 712 So.2d 398, *404) case, the County;was undertaking a general revision "of 'its Comprehensive Phan prior o receiving the PUD-''''a''' " - application on this property. Not wishing to perri.t development inconsistent with the plan it was considering, it elected to refuse new applications, such ds Gardens"-s :- Its direction to its staii`: and the tion "of Ordinance -89-10 .;were done in add,_ furtherance' of its goal 'of 'effectuating the planned amendment" ' without allowing development inconsistent with it. Had the County been considering a zoning amendment rather than a planning decision, the rationale of ` "zoning' ui "£ progress" . inay have " been epcause e' See Gardens I, 590 So.2d at 491. Because • there was "a plausible, arguably legitimate purpose" for the actions of the county in passing Ordinance 89-10, the:` rational basis test is met, =and `smmay judgment is appropriate'. See Restigouche, 59 F.3d at 1214. We distinguish City of Margate v. Amoco Oil Co., 546 So.2d 1091, 1094 (Fla. 4th DCA 1989) , in which we held that a governmental agency acts arbitrarily when it avoids its duty by unreasonably " delaying a matter, so as to effectuate `a change in the law adverse to the applicant. ' In that case, the landowner had applied for a building permit to construct and operate a service station upon a parcel which permitted that use. The city rejected the application without justification, other than the city determined that it did not want a service station at that location. After the city denied the application, and while the land owner was trying to resolve the problem, the city undertook to rezone the property so that a service station could not be permitted. This fact scenario differs substantially from the facts of the instant case. At the time'=(ardens applied -for.--development 405approval, ,the Cout ty vas extensively invoived in tending its " °- oompretiensiye Plan, - " �n luduig the dowfrrarde': even: e pro under f-operty a le4 fac be ore they I� ;hentract to purchase,. thdede (Woe, Margate was not deci section 1983 and substantive due Page 8 summary judgment on Gardens's 0 `-,stantive due process claim. We also affirm the trial court's ruling granting summary yA nt on. the procedural due process claim. . _kilo v. Walker, 840 F.2d 1124, 1128 (3d Cis- 1'`48), Affirmed. SHAHOOD and GROSS, JJ., concur 712 So.2d 398, 23 Fla. L. Weekly D682 END OF DOCUMENT process analysis. For the foregoing reasons, we affirm the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 804 So.2d 464 26 Fla. L. Weekly D2784 (Cite as: 804 So.2d 464) <KeyCite History> District Court of Appeal of Florida, First District. BRADFORDVILLE PHIPPS LIMITED PARTNERSHIP, Appellant, v. LEON COUNTY, Florida, Appellee. No. 1D01-541. Nov. 26, 2001. Rehearing Denied Jan. 7, 2002. Property owner brought inverse condemnation action against county, following the imposition of a temporary injunction that prohibited county from issuing certain permits for development of owner's property. The Circuit Court, Leon County, Terry P. Lewis, J., granted county's motion for summary judgment and denied owner's cross -motion. Owner appealed. The District Court of Appeal, Kahn, J., held that: (1) owner's claim was not ripe for adjudication, and (2) owner failed to show it was deprived of all or substantially all economically beneficial use of its property, as was required to establish that temporary regulatory taking had occurred. Affirmed. West Headnotes [11 Eminent Domain € 277 148k277 Most Cited Cases Property owner's inverse condemnation claim against county, following the imposition of a temporary injunction that prohibited county from issuing certain permits for development of owner's property, was not ripe for adjudication, where owner never tested injunction or obtained a final authoritative decision regarding the extent of the regulation on the use of its property. [21 Eminent Domain 2(1.2) 148k2(1.2) Most Cited Cases Property owner failed to show it was deprived Page 1 of all or substantially all economically beneficial use of its property, as was required to establish that temporary regulatory taking had occurred, as a result of imposition of 22- month injunction that prohibited county from issuing certain permits for development of owner's property; injunction was designed to suspend certain development only until county completed stormwater study required by its comprehensive plan, and nothing in record suggested property completely, or even substantially, lost its present value by virtue of temporary injunction. U.S.C.A. Const.Amend. 5. [3] Eminent Domain C' 2(1) 148k2(1) Most Cited Cases A temporary deprivation may constitute a "taking." U.S.C.A. Const.Amend. 5. [4] Zoning and Planning «602 414k602 Most Cited Cases [41 Zoning and Planning 612 414k612 Most Cited Cases [41 Zoning and Planning 615 414k615 Most Cited Cases Courts do not generally interfere with local regulatory bodies in matters, including land use regulation, simply because legislation or regulation may be unwise or economically unsound; rather, courts constrain such bodies only where regulations are illegal or unconstitutional. [5] Eminent Domain <zs,, 2(1.2) 148k2(1.2) Most Cited Cases Close regulation by local government that is merely expensive or time consuming for developers does not arise to a "taking"; such regulation presumably expresses the will of local citizens who have elected governing boards such as county and city commissions. U.S.C.A. Const.Amend. 5. *465 Carl R. Pennington, Jr., and John C. Pelham of Pennington, Moore, Wilkinson, Bell Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 804 So.2d 464 (Cite as: 804 So.2d 464, *465) & Dunbar, P.A., Tallahassee, for Appellant. Herbert W.A. Thiele, County Attorney, and Theresa R. Thompson, Assistant County Attorney, Tallahassee, and Robert H. Freilich, Kansas City, Missouri, for Appellee. KAHN, J. Appellant, Bradfordville Phipps Limited Partnership (Partnership), challenges an order rendered by the Second Judicial Circuit Court denying its motion for summary judgment and granting summary judgment in favor of Appellee, Leon County (County). The Partnership, which owns property in a part of Leon County known as the Bradfordville Study Area (BSA), had filed an inverse condemnation action against the County following the imposition of a temporary injunction that prohibited the County from issuing certain permits for development in the BSA. We affirm. I. The record reveals that effective December 3, 1998,. the circuit court imposed an injunction in another Proceeding-, prohibiting the County "from issuing any fiiture building permits or other -development permits authorizing construction within the Bradfordville Study Area,until such time as the County comes into compliance ``*466 with 8.1, 8.3, 8.3.1 and 8.5.2 of-andx Use Element .-of the Tallahassee/ Leo o tyry umprehemsive Plan." Land Use Gal -" 8 concerned the development and implementation of a comprehensive stormwater plan for the BSA. On January 12, 1999, the plaintiffs in the other proceeding and the County entered an interim settlement agreement, pursuant to which the County agreed not to appeal the injunction order. The next day, the court entered another order, amending the injunction order to exclude from its scope certain property and projects. On April 5, 1999, the Partnership brought this action against the County. In the complaint, the Partnership alleged, among other things, that the Comity's actions "resulted in the [Partnership's] inability to Page 2 move forward with the development and use of its property and has deprived the [Partnership] of all reasonable economic use of its property." The Partnership alleged that it "has expended substantial efforts and substantial sums of money and has incurred great expense in pursuing its plan of development" of the property. The Partnership further alleged that, in December 1998, it had submitted "a completed Environmental Permit application relating to the development of its project, but this application was rejected by the County due to the injunction. The Partnership alleged that this permit application was a prerequisite to the issuance of any building permit and "[tlhe denial of the application for such permit prohibits [the Partnership] from proceeding with the development of its property." The complaint summarized the Partnership's basis for a claim of inverse condemnation: The acts and omissions ;of the County as alleged herein, including: (a) agreeing to the entry of an Order enjoining the County from issuing any further permits for development; and (b) agreeing not to appeal any order which may be entered enjoining issuance of permits for the development of the subject property, constitute a substantial deprivation of the beneficial use of the Plaintiff's property rights and constitutes a taking of Plaintiffs property for a public purpose without payment or compensation. On December 14, 1999, as part of its effort to comply with the injunction and the Comprehensive Plan, the County adopted Ordinance No. 99 31, an do im Development-, Ordinance (nID© Pursuant' to the 11)d, ` the` County restricted the nsss ce of development per mits for land in he BSA: 1. Development Permits. Notwithstanding any provision of the Land Development Regulations to the contrary, no development permit shallbe issued and noApplication For Land Use Approval shall be approved in the Bradfordville Study Area during the term of this Ordinance, except as provided in paragraph 4, below. 4. Type of Uses and Development Permits Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works 804 So.2d 464 Page 3 (Cite as: 804 So.2d 464, *466) Affected. This Ordinance shall apply, as and to the extent set forth herein, to all applications for land use approval submitted after the Effective Date of this Ordinance not otherwise excepted by the Court Orders being the Injunction Order dated December 15, 1998, the Interim Settlement Agreement of January 12, 1999, and the modified Injunction Order dated January 13, 1999. The IDO also listed several "Types of Uses and Development Permits Not Affected." The term of the IDO was limited to seven months, unless extended by a majority vote of the Board of County Commissioners. *467 On July 11, 2000, the County adopted Ordinance No. 00-31. This ordinance implemented the provisions of Land Use Goal 8 of the Comprehensive Plan and evidently constituted the requisite action to comply with the court- ordered injunction. By order dated October 23, 2000, the circuit court dissolved the injunction. On October 5, 2000, the Partnership and the County each filed motions for summary judgment. By an order rendered December 4, 2000, the circuit court granted the Comity's motion and denied the Partnership's motion, and entered final summary judgment in favor of the County. In the order, the trial judge found, "[W]hile I can understand the Plaintiff's frustrations with the financial burden imposed upon it by the actions and inactions of the County, I find that under the undisputed facts of this case, it does not amount to a 'taking', entitling Plaintiff to the relief sought." In particular, the judge determined that "the facts show as a matter of law that the Plaintiff has not met [the] ripeness test." The court found that the Partnership "made no effort to intervene in the [other] suit ... and challenge the injunction, to seek to have itself excepted from its provisions, or to have it modified so as to allow acceptable economically viable uses." The court also made the following findings: The Plaintiff says that the use of the property for residential development, in light of its location at the intersection of two major roads, and in light of the purchase price of the property and the cost of development, would not make sense financially. No one would buy residential lots in this location at the prices Plaintiff would have to charge in order to achieve any kind of return on its investment. I cannot disagree with the logic of that argument, but that is not the test. Unfortunately for the Plaintiff, the owner is not protected from regulations that reduce or eliminate the profit that might be realized from land so long as there is some use of the property that economically can be executed. And, as noted above, in addition to possible residential use, other property in the area had been exempted for use as a fire station, a church, and a school. In short, because the Plaintiff has not tested the regulation and gotten a final authoritative decision as to the extent of the regulation on the use of its property, the issue of a taking is not ripe for adjudication. The court further found that, even assuming the Partnership had satisfied the ripeness test, "it still cannot establish, on the undisputed facts, that a taking has occurred by virtue of the injunction and the subsequent interim ordinance." In this regard, the court made the following findings: The record evidence in this case shows that the; Plaintiff knew or should have known that land development was highly restricted in Leon County. The various applications and reapplication and modifications by its engineer consultant in working through the myriad fregulations`attest to this. The Plaintiff also knew or should have known that there was Awe other intense; Br lim t' constru� cinprE atio t .ic"h =would m: The court acknowledged case law cited by the Partnership indicating that a regulation *468 could constitute a temporary taking, but distinguished those cases from the one at hand. The court concluded that no taking had Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 804 So.2d 464 (Cite as: 804 So.2d 464, *468 ) occurred in this case: In summary, the Plaintiff purchased its property with actual or constructive notice of the highly restrictive land use environment that existed, and the specific regulations that might thwart or adversely affect its development plans. The court action and subsequent interim ordinance were not,=then, reasonably unexpected. The restriction was temporary in nature. The Plaintiff did not obtain a final authoritative determination of the extent to which the regulation curtailed Plaintiffs use of its property. Given the temporary nature of the injunction and interim ordinance, it probably made economic sense to wait it out in hopes that the highest and best use, the most profitable use of the property might be realized after the injunction was lifted. The financial burden of that delay, however, is not, on the undisputed facts here, compensable. The Partnership has appealed and raises several issues concerning the trial court's ripeness analysis and application of takings jurisprudence. II. [1] It is not clear to us that an analysis of ripeness is necessary in this case, given the nature of the temporary regulatory taking claim brought by the Partnership. Where a self-limiting regulation imposes a mere delay on the landowner's use of the property,:; it makes little sense to require the 1 ndownr to, unmidiately attempt seine less Deco° valuable use " of the . land, because "the anticipated .outcome", is that '-the land will ultimately -be useable a variety nays, as it was before the regulation, or moratorium To the extent that a ripeness analysis is required, however, we conclude that the trial court properly found the Partnership's claim was not ripe because the Partnership never tested the injunction or obtained a final authoritative decision regarding the extent of the regulation on the use of its property. See Tinnerman v. Palm Beach County, 641 So.2d 523, 525 (Fla. 4th DCA 1994); see also, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 2459, 150 L.Ed.2d 592 (2001). Page 4 [2] We further find that the trial court properly concluded the Partnership had not shown it was deprived of all or substantially all economically beneficial use of its property such that a temporary regulatory taking; had occurred under the test set forth in. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In Lucas, the United States Supreme Court explained that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." 505 U.S. at 1019, 112 S.Ct. 2886. The Court indicated, however, that the situations are "relatively rare" where the government deprives a landowner of "all economically beneficial uses." Id. at 1018, 112 S.Ct. 2886. We note that the Partnership has proceeded in its temporary regulatory taking claim only on the theory that a temporary taking occurred under the Lucas test, arguing that the injunction effectively deprived it of all economically beneficial use of its property. A. [3] "[A] temporary deprivation may constitute a taking." Tampa- Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.*469 1994); see First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). See also Keshbro, Inc. v. City of Miami, 801 So.2d 864, 871 (Fla. July 12, 2001). In analyzing temporary takings, many courts look to the United States Supreme Court's decision in First English. See Keshbro, 801 So.2d at 871. Reliance upon First English for the threshold determination of whether a taking has occurred is, however, suspect. In First English, a church alleged that a regulatory taking had occurred when, because of flooding, the County of Los Angeles adopted an ordinance prohibiting building or rebuilding on certain land, which included land owned by the church. See 482 U.S. at 307-08, 107 S.Ct. 2378. Because of the Copr. ° West 2004 No Claim to Orig. U.S. Govt. Works 804 So.2d 464 Page 5 (Cite as: 804 So.2d 464, *469 ) posture of the case, the United States Supreme Court assumed that the regulation at issue resulted in a taking and considered only the question of an appropriate remedy. See id. at 311-13, 107 S.Ct. 2378. The church's complaint alleged that the ordinance had denied it all use of the affected property and the church sought damages for this deprivation. See id. at 312, 107 S.Ct. 2378. Citing the California Supreme Court's decision in Agins v. City of Tiburon, 24 Ca1.3d 266, 157 Ca1.Rptr. 372, 598 P.2d 25 (1979), aff'd, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), the trial court granted the defendants' motion to strike the allegation that the church had been denied all use of the subject property. See id. at 308-09, 598 P.2d 25. The Court explained that in Agins, "the California Supreme Court decided that a landowner may not maintain an inverse condemnation suit in the courts of that State based upon a 'regulatory' taking." Id. at 308, 598 P.2d 25. The Court further explained the Agins decision: In the court's view, maintenance of such a suit would allow a landowner to force the legislature to exercise its power of eminent domain. Under this decision, then, compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Id. at 308-09, 598 P.2d 25. The California Court of Appeal also relied on Agins and affirmed the trial court's decision to strike the allegations concerning the ordinance. See id. at 309, 598 P.2d 25. The California Supreme Court denied review. See id. The United States Supreme Court thus explained the constitutional issue before it: Appellant asks us to hold that the California Supreme Court erred in Agins v. Tiburon in determining that the Fifth Amendment, as made applicable to the States through the Fourteenth Amendment, does not require compensation as a remedy for "temporary" regulatory takings --those regulatory takings which are ultimately invalidated by the courts. Id. at 310, 598 P.2d 25. In particular, the Court pointed out that "the allegation of the complaint which we treat as true for purposes of our decision was that the ordinance in. question denied appellant all use of its property." Id. at 321, 598 P.2d 25. The Court explained that " 'temporary' takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." Id. at 318, 598 P.2d 25. The Court held that "where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Id. at 321, 598 P.2d 25. Importantly, the *470 Court noted, "We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us." Id. B. The First English discussion of temporary takings referred to "retrospectively temporary takings," that is, "the Court used the term 'temporary taking' to refer to the period before a regulatory taking is invalidated...." Keshbro, 801 So.2d at 873. Indeed, as explained above, "First English really involved a question of remedies...." Id. In Keshbro, however, the Florida Supreme Court had before it the threshold issue of whether a compensable taking could occur under Lucas when nuisance abatement boards ordered, prospectively, temporary closures of certain buildings. Id. at 866. The court declined to distinguish "retrospectively temporary takings" from "prospectively temporary takings" for purposes of applying the Lucas analysis to nuisance cases. Id. at 871. Nevertheless, the court noted that, in cases involving land use and planning concerns, courts have refused to extend First English beyond a situation involving retrospectively temporary takings: (Tlhe courts refusing to extend First English Copr. ° West 2004 No Claim to Orig. U.S. Govt. Works land the Ninth can's ysis to the temporary takings claims of landowner .. Lak Tahoe region with regard to moratorium on dev instituted in an e environmental degradation [Tlhe widespread ' al'd t' f t planning moratori local governments P �� 804 So.2d 464 (Cite as: 804 So.2d 464, *470) beyond its remedial genesis to prospectively temporary regulations have done so in the land use and planning arena, where an entirely different set of considerations are implicated from those in the context of nuisance abatement where a landowner is being deprived of a property's dedicated use. The concerns specific to the regulation of noted by apply Lu effort to stem th of Lake Tahoe: elopment sin e e a temporary i iv i a ion otemporary a would deprive state and of an important land -use 1 tool with a well -established trade tion.. Land -use plammlg �s necessarily,; a for a q _ e Y � porar"y development moratoria promote effective planning aFirst, by preserving the status :quo during the. planning,procers, temporary. moratoria ensure that 'a -community's problems are not jexacerbated during the, time it takes to_ formulate a regulatory. scheme. Relatedly, temporary development moratoria prevent developers and landowners from racing to carry out development that is , destructive=of.the commnmty's,interests ore ne ' all goes � �f f+ ct Such a �ment wo . ld pe It ie rta e the land -use plan did rea g:. Page 6 requiring compensation under the Takings Clause of the United States Constitution?")). The reference to land planning moratoria is more helpful in the present case than is Keshbro. We acknowledge the Keshbro rule allowing a prospective taking, but note that the factual impetuses for that case --nuisance abatement boards' actions in temporarily closing motels and apartments where criminal activity had occurred --are far removed from those now before us. C. In Tahoe -Sierra, the Ninth Circuit held that a temporary moratorium on development did not amount to a categorical taking under Lucas because it did not result in the deprivation of all of the value or use of the property. See 216 F.3d at 782. Under the Tahoe -Sierra analysis, no temporary taking is wrought by virtue of a development moratorium where the future use of property has a substantial present value. 216 F.3d at 781. In that case, the moratorium lasted thirty-two months. See id. Here, the injunction lasted twenty-two months. In light of Lucas, we agree with the reasoning of the Ninth Circuit that a temporary land use regulation could rarely, if ever, completely deprive the owner of all economically beneficial use: Of course, were a temporary moratorium designed to be in force so long as to eliminate all present value of a property's future use, we might be compelled to conclude that a categorical taking had occurred. We doubt, however, that a true temporary moratorium would ever be designed to last for so long a period. Id. at 781 the injunction' certain sieves e ,situation ned to suspend; y until the County' r, stud equired by Deli though a mora ovum may restrict or delay temporarily the use of property for development purposes, it can hardly be said that a moratorium that was temporary from the outset destroys the economic value of the property. Indeed, nothing in the present record suggests that the property owned by the Partnership completely, or even substantially, Copr. c West 2004 No Claim to Orig. U.S. Govt. Works WSfiw use and planning were Circuit in declining to categorical takings anal 804 So.2d 464 (Cite as: 804 So.2d 464, *471) lost its present value by virtue of the temporary injunction. Thus, our conclusion, similar to the result in Tahoe -Sierra, does not conflict with Lucas. IV. A truly temporary land use injunction or moratorium looks more like a permitting delay than a compensable regulatory taking. Many communities have, through state and local elected officials, expressed a preference for strict land use control. In such locales, a developer may labor months or years to obtain all necessary approval for a substantial development. This is essentially what the circuit judge observed in his order when he noted "the general restrictive environment for commercial development in Leon County." In such - an environment, the timetable established by a commercial developer must' anticipate delays, whether occasioned by holdups in the permitting process, litigation by neighboring land owners, or a temporary development injunction or moratorium. [4151 Our decision here, as well as that of the trial court, reflects the role of courts versus the role of local bodies in these types of disputes. Courts do not generally interfere with local regulatory bodies in matters, including land use regulation, simply because legislation or regulation may be unwise or economically unsound. Courts constrain such bodies only where regulations are illegal or unconstitutional. As the Court indicated in Lucas, the situations are "relatively rare" where the government deprives a landowner of "all economically *472 beneficial uses." 505 U.S. at 1018, 112 S.Ct. 2886. Close regulation by local government that is merely expensive or time consuming for developers does not arise to a taking. Such regulation presumably expresses the will of local citizens who have elected governing boards such as county and city commissions. Thus, the question of regulation in situations such as the one now before us, presents a political rather than a justiciable issue. The regulatory taking analysis of Lucas is consistent with this view. Page 7 AFFIRMED. ALLEN, C.J., and DAVIS, J., concur. 804 So.2d 464, 26 Fla. L. Weekly D2784 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. MONROE COUNTY, a Political Subdivision of the State of Florida, and the DEPARTMENT OF COMMUNITY AFFAIRS and ISLAMORADA, VILLAGE OF ISLANDS, a municipal corporation, Appellants, vs. THORA AMBROSE, et al., Appellees. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2003 ** ** CASE NOS. 3D02-1716 3D02-1754 3D02-1800 3D02-2068 LOWER. TRIBUNAL NO. 97-636 Opinion filed December 10, 2003. An Appeal from the Circuit Court for Monroe County, Richard Payne, Judge. Morgan and Hendrick, P.A., and Karen K. Cabanas (Key West), for appellant, Monroe County; David L. Jordan, Deputy General Counsel (Tallahassee), for appellant, Department of Community Affairs; Weiss Serota Helfman Pastoriza & Guedes, P.A., Edward G. Guedes, and Nina L. Boniske, for appellants, Islamorada, Village of Islands. Brion Blackwelder, Richard Grosso, and David Cozad (Fort Lauderdale), for appellants/intervenors, Protect Key West, d/b/a "Last Stand", et al. Janet E. Bowman (Tallahassee), for 1000 Friends of Florida, Inc., as Amicus Curiae, for appellants. James S. Mattson (Key Largo); Andrew M. Tobin (Tavernier); for appellees. Frank A. Shepherd, for Pacific Legal Foundation, as Amicus Curiae for appellees. Before LEVY`, GERSTEN, and GODERICH, JJ. PER CURIAM. In the proceedings below, the trial court granted summary judgment in favor of Thora Ambrose, et. al. ("Landowners"), finding that Section 380.05(18), Florida Statutes (1997),1 created a vested right for the Landowners to complete development of single-family homes on their land. Monroe County, the Department of Community Affairs, and the Village of Islamorada (hereinafter collectively referred to as "Monroe County") appeal the trial court's order granting summary judgment. The Landowners cross -appeal the same order. We reverse and remand with instructions. The Landowners own parcels of undeveloped land that were platted and recorded in Monroe County between April 24, 1924 and June 27, 1971. During this time, local subdivision plat law governed the development of land. In 1979, the Florida Legislature enacted Section 380.0552 and designated Monroe County as an area of ` Judge Levy did not participate in oral argument. 1 Chapter 380 also known as "The Florida Environmental Land and Water Management Act of 1972" governs natural resources, conservation, reclamation and use of land and water. 2 critical state concern.' Since then, the local government has approved new land development regulations for these areas.3 The Landowners assert that these subsequent land regulations have limited or modified their rights to develop their parcels of land. In 1997, the Landowners filed a complaint seeking declaratory relief to determine their rights pursuant to Chapter 380, Florida Statutes, and to determine the effect, if any, of the 1986 Land Development Regulations, the Rate of Growth Ordinance ("ROGO") and the 2010 Comprehensive Plan. Monroe County and the Landowners filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Landowners. The trial court found that pursuant to Section 380.05(18), Florida Statutes (1997), the Landowners have vested rights to build single family homes, by virtue of recording their parcels of land. The trial court also determined that the Landowners did not have to 2 The legislative intent behind designating the Florida Keys an area of critical- state concern is to establish a land use management system that protects the natural environment; conserves and promotes the community character; promotes orderly and balanced growth in accordance with the capacity of available and planned facilities and services; provides affordable housing in close proximity to places of employment; promotes and supports a diverse and sound economic base; protects the constitutional rights of property owners to own, use and dispose of their real property and; promotes coordination and efficiency among governmental agencies in the Florida Keys. See § 380.0552, Fla. Stat. (1997). The first land development regulations were adopted in 1986 pursuant to Sections 380.05(6) and (8), Florida Statutes (1985). In 1992, the Rate of Growth Ordinance ("ROGO") was adopted as part of a state emergency rule. Finally, in January of 1996, Monroe County adopted its 2010 comprehensive plan. 3 show a reliance or change of position and that their rights were vested solely on the recordation of their land. The trial court held that these vested rights are superior to and preempt any of the State of Florida and local governments' comprehensive plans and land use regulations. Finally, the trial court determined that the Landowners' rights to develop their land became vested on July 1, 1972, the enactment date of Section 380.05(18). For the following reasons, we reverse the order granting summary judgment and remand for further proceedings. The trial court interpreted Section 380.05(18) to find that the Landowners have vested rights to develop their property pursuant to the recordation of their parcels of land. Section 380.05(18) provides that: Neither the designation of an area of critical state concern nor the adoption of any regulations for such an area shall in any way limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision pursuant to chapter 498 or former chapter 478, by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been a reliance and a change of position, and which registration or recordation was accomplished, or which permit or authorization was issued, prior to approval under subsection (6), or the adoption under subsection (8), of land development regulations for the area of critical state concern. If a developer has by his or her actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to the developer's interests, nothing in this chapter authorizes any governmental agency to abridge those rights. The plain language of the statute clearly illustrates that if 4 a landowner recorded his property pursuant to local subdivision plat law, his rights to complete any development cannot be limited or modified by the designation of the land as an area of critical state concern nor by the adoption of subsequent land regulations. Although, the trial court's order is clearly in accord with this provision in the statute, the court determined that the Landowners did not have to show a reliance or change of position and that their rights were vested solely on the recordation of their land. We disagree. Recordation alone is not sufficient to establish vested rights. Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right.See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976); Sakolskv v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963); Equity Res., Inc. v. Coun y of Leon, 643 So. 2d 1112 (Fla. 1st DCA 1994); Harbor Course Club, Inc,, v. Dep't of Cmty. Affairs, 510 So. 2d 915 (Fla. 3d DCA 1987); Dade County v. United Res.,Inc., 374 So. 2d 1046 (Fla. 3d DCA 1979). The only exception to this common law rule under Chapter 380 is specifically provided for in the statute. See 5 § 380.06(20), Fla. Stat. (1997).4 The Landowners do, not fall under this exception. The theory behind vested rights is that "a citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations." Town of Larao v. Imperial Homes Corp., 309 So. 2d 571, 573 (Fla. 2d DCA 1975). However, the mere purchase of land without more does not create a right to rely on existing zoning. See City of Miami Beach v. 8701 Collins Ave, Inc., 77 So. 2d 428 (Fla. 1954). It would be unconscionable to allow the Landowners to ignore evolving and that: 'Section 380.06(20)(a), Florida Statutes (1997), provides For the purposes of determining the vesting of rights under this subsection, approval pursuant to local subdivision plat law, ordinances, or regulations of a subdivision plat by formal vote of a county or municipal governmental body having jurisdiction after August 1, 1967, and prior to July 1, 1973, is sufficient to vest all property rights for the purposes of this subsection; and no action in reliance on, or change of position concerning, such local governmental approval is required for this vesting to take place. Anyone claiming vested rights under this paragraph must so notify the department in writing by January 1, 1986. Such notification shall include information adequate to document the rights established by this subsection. When such notification requirements are met, in order for the vested rights authorized pursuant to this paragraph to remain valid after June 30, 1990, development of the vested plan must be commenced prior to that date upon the property that the state land planning agency has determined to have acquired vested rights following the notification or in a binding letter of interpretation. When the notification requirements have not been met, the vested rights authorized by this paragraph shall expire June 30, 1986, unless development commenced prior to that date. 6 existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land. Pursuant to Section 380.05(18), the Landowners rights to develop their land are not limited or modified by the designation of an area of critical state concern nor the adoption of regulations if they recorded their property prior to the approval of land development regulations for the area. Monroe Country was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the Landowners did not. start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances. See Pasco County v. Tampa Dev. Corp., 364 So. 2d 850 (Fla. 2d DCA 1978) (existence of present right to use a particular use of land derived from less restrictive zoning or no zoning ordinance at all is not a sufficient act of government upon which to base equitable estoppel to preclude enforcement of subsequently adopted zoning restrictions); see also § 380.05(16), Fla. Stat. (1997). A subjective expectation that land can be developed is no more than an expectancy and does not translate into a vested right to develop the property. See Namon v. Dep't of Envtl. Regulation, 558 So. 2d 504 (Fla. 3d DCA 1990). Furthermore, the purpose of Chapter 380 is to protect the natural resources and environment of the state, preserve water resources, and facilitate orderly and well planned development. See 7 Compass Lake Hills Dev. Corp. vs Dgp't of Cmtv. Affairs, 379 So. 2d 376 (Fla. 1st DCA 1980); § 380.0552, Fla. Stat. (1997). The reason Monroe County was designated an area of critical state concern was to provide for an increased state role in decisions which have a statewide impact. See § 380.021, Fla. Stat. (1997). Allowing Landowners who have not taken any steps to develop their property to obtain vested rights would be contrary to legislative intent. The result would clearly subvert significant legislation and regulations designed and enacted for the purpose of preserving our most precious lands. Therefore, we conclude that the Landowners must show they relied on Section 380.05(18), and changed their position in furtherance of developing their land, in order to have vested rights to develop their property. See Equity Res, Inc, v, County of Leon, 643 So. 2d 1112 (Fla. 1st DCA 1994) (vested rights were established based on acts of reliance where property was purchased under contract contingent on rezoning). We are unable to determine if the Landowners' rights are vested because the trial court's determination rested solely on the Landowner's recordation of property and did not address the reliance issue. Therefore, we remand this matter back to the trial court to determine, based on the foregoing analysis, whether these Landowners have vested rights. We also conclude that the subsequently enacted land regulations do not apply to the Landowners who are determined to have vested 8 rights. See Town of Largo v. Imperial Homes Corp., 309 So. 2d at 573 (town enjoined from enforcing new zoning requirements where it was determined that developer had vested rights). Those Landowners who do not have vested rights, however, will be subject to the subsequently enacted land regulations. See Harbor Course Club, 510 So. 2d at 918 (development of property as a golf driving range violated Section 380.05 as property owners' rights had not vested prior to designation of the land as an area of critical state concern). To the extent that these regulations render any of the Landowners' property practically useless, the Landowners are entitled to compensation. Section 380.08, Florida Statutes (1997), provides that the government cannot adopt a rule or regulation that constitutes a taking without providing full compensation.5 See Joint Ventures v. Dep't of Transp., 563 So. 2d 622 (Fla. 1990)(state must pay when it regulates private property in such a manner that the regulation deprives the owner of the economically viable use of that property). Based on the foregoing analysis, it is unnecessary to address the other points raised on appeal. With regard to the cross -appeal, the Landowners argue that the trial court incorrectly calculated the 5 Section 380.085, Florida Statutes (1997), enables a person substantially affected by the denial of a permit to build, to initiate an action in circuit court on the grounds, that an area of critical state concern development order effects a taking without compensation. 9 cut-off date for determining their vested rights under Section 380.05(18). The trial court concluded that July 1, 1972 was the date that the parcels of land became vested because on that date Section 380.05(18) was enacted. The Landowners allege that September 15, 1986 is the correct cut-off date for determining their vested rights, and Monroe County concedes that the Landowners are correct on this point. We agree. Section 380.05(18) provides vested rights for Landowners who recorded their property prior to the approval of land development regulations for the area of critical state concern. The first land development regulations for Monroe County were enacted on September 15, 1986. Therefore, we reverse with instructions for the trial court to enter September 15, 1986, as the appropriate date for obtaining vested rights. In conclusion, we reverse the summary judgment finding that a plain reading of Section 380.05(18) gives the Landowners a vested right to develop their property if the Landowners have demonstrated a good faith reliance and change of position. We also reverse on the cross -appeal with instructions for the trial court to enter September 15, 1986, as the appropriate date that the Landowners' rights vested. We remand for further proceedings consistent with the above analysis. Reversed and remanded with instructions. 10 § 70.001 CIVIL PRACTICE AND PROCEDURE application of a rule, regulation, or ordinance as it would otherwise apply to the subject real property, the relief granted shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property. 2. Whenever a governmental entity enters :into a settlement agreement under this section which would have the effect of contravening the application of 'a statute as it would otherwise apply to the subject real property, the governmental entity and the property owner shall jointly file an action in the circuit court where the real property is located for approval of the settlement agreement by the court to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property. (5)(a) During the 180-day-notice: period, unless a settlement offer is accepted by the property owner,- each of the governmental entities provided notice pursuant to paragraph (4)(a) shall issue a written ripeness decision identifying the allowable uses to which the subject property may be put.. The failure of the governmental entity to issue a written ripeness decision during the 180-day-notice period shall be deemed to ripen the prior action of the governmental entity, and shall operate as a ripeness decision that has been rejected by the property owner. The ripeness decision, as a matter' of law; constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of ' other administrative remedies. (b) If the property owner rejects the settlement offer and the ripeness decision of the governmental entity or entities, the property owner may file a claim for compensation, in the circuit court, a copy of which shall be served contemporaneously on the head of each of the governmental' entities that made a settlement offer and a ripeness decision that was rejected by the property owner. Actions under this section shall be brought only in the county where the real property is located. (6)(a) The circuit court 'shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement offer and ripeness decision, the governmental entity or entities have inordinately burdened the real property. If the actions of more than one governmental entity, considering any settlement offers and ripeness decisions, are responsible for the action that imposed the inordinate burden on the real property of the property owner, the court shall determine the percentage of responsibility each such governmental entity bears with respect to the inordinate burden. A governmental entity may take an interlocutory appeal of the court's determination that the action of the governmental entity has resulted in an inordinate burden. An interlocutoryappeal does not automatically stay theproceedings; however, the court may stay the proceedings during the pendency of the interlocutory appeaL If the governmental entity does not prevail in the interlocutory appeal, the court shall award to the prevailing property owner the costs and a reasonable attorney fee incurred by the property owner in the interlocutory appeaL (b) Following its .determination of the percentage of responsibility of each governmental entity, and following the resolution of any interlocutory appeal, the court shall impanel .a jury to determine the total amount of compensation to the property owner for the loss in value due to the inordinate burden to the real property. The award of compensation ' shall be determined by calculating the difference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment -backed expectation or was not left with uses. that are unreasonable; whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together with the ripeness decision, of the governmental entity or entities. In determining the award of compensation, consideration may not be given to business damages relative to 'any development, activity, or use that the action of . the governmental entity or entities, considering the settlement offer together with the ripeness decision has restricted, limited, or prohibited. The award of compensation shall include a reasonable award of prejudgment interest from the date the claim was presented to the governmentalentity or entities as provided in subsection (4). 8 REAL PROPERTY RIGHTS (c)1. In any action filed purs reasonable costs and attorney f entity or entities, according to tl date of the filing of the circuit the court determines that the governmental entity or entities which reasonably would have ri governmental entity or entities 2. In any action filed pursi entitled to recover reasonable c entities from the date of the fi entities prevail in the action any a bona fide settlement offer, i resolved the claim fairly to the the property owner, based u1 entities and the property owne 3. The . determination of to graph shall be made by the coi proposed ripeness decision, ex ripeness decision, and any negi settlement offer or the ripen established by this section ei paragraph. (d) Within 15 days after th issuance of any judgment pui copy of the settlement or judg (7)(a) The circuit court ma! section and to make final de (b) An award or payment o and vest in any government interest in rights of use for w transferable development rigl tal entity. When there is an the recipient of the right, (8) This section does not s for arbitration, mediation, or entities are encouraged to u actions contemplated by this (9) This section provides a level of a taking under the St may not necessarily be cons' action does not rise to the lel do not abrogate any other ri for governmental actions tlu shall not be liable for compel the loss in value to, a subject (10) This section does not to the operation, maintenan' not affect existing law regar (11) A cause of action mi more than 1 year after a la property at issue. If an m available administrative or section is tolled until the cot (12) No cause of action e or before May 11, 1995, or PROCEDURE REAL PROPERTY RIGHTS: to the subject real regulations at issue ulatory effort from under this section it would otherwise )perty owner shall for approval of the irotects the public ary to prevent the accepted by the iant to paragraph uses to which the to issue a written en the prior action s been rejected by nstitutes the last it for the purposes iailabi7ity of other ss decision of the mpensation in the ead of each of the that_ was rejected i the county where ^cal property or a r, considering the have inordinately 3ntity, considering that imposed the iall determine the h respect to the )eal of the court's nordinate burden. rer, the- court may the governmental to the prevailing ierty owner in the ich governmental all impanela jury loss in value due mnsation • shall be al property, as it had the ability to th " uses that are sal property, as it ened, considering mental entity or not be given to ie action of the with the ripeness n shall include a presented to the § 70.001 (c)1. In any action filed pursuant to this section, the property owner is entitled to recover reasonable costs and attorney fees incurred by the propertyowner; from the governmental entity or entities, according to their proportionate share as determined by the court, from the date of the filing of the circuit court action, if the property owner prevails in the action and the court determines that the settlement offer, including the ripeness decision, of the governmental entity or entities did not constitute a bona fide offer to the property owner which reasonably would have resolved the claim, based upon the knowledge available to the governmental entity or entities and the property owner during the 180-day—notice. period. 2. In any action filed pursuant to this section, the governmental entity or entities are entitled to recover reasonable costs and attorney fees incurred by the governmental entity or entities from the date of the filing of the circuit court action, if the governmental entity or entities prevail in the action and the court determines that the property owner did not accept a bona fide settlement offer, including the ripeness decision, which reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner, based upon the knowledge available to the ' governmental entity or entities and the property owner during the 180—day notice period. 3. The . determination of total reasonable costs and attorney fees pursuant to this para- graphshall be made by the court and not by the jury. Any proposed settlement offer or any proposed ripeness decision, except for the final written settlement offerorthe final written ripeness decision, and any negotiations or rejections in regard to the formulation either of the settlement offer or the ripeness decision, are inadmissible in the subsequent proceeding established by this section except for the purposes of the determination pursuant to this paragraph. (d) Within 15 days after the execution of any settlement pursuantto this section, or the issuance of any judgment pursuant to this section, the governmental entity shall provide a copy of the settlement or judgment to the Department of Legal Affairs. (7)(a) The circuit court may enter any orders necessary to effectuate, the purposes of this section and to make final determinations to effectuate relief available under this section. (b). An award or payment of compensation pursuant to this section shall operate to grant to and vest in any governmental entity by whom compensation is paid the right, title, and interest in rights of use for which the compensation has been paid, which rights may become transferable development rights to be held, sold, or otherwise disposed of by the governmen- tal entity. When there is an award of compensation, the court shall, determine the form and the recipient of the right, title, and interest, as well as the terms of their acquisition. (8) This section does not supplant methods agreed to by the parties and lawfully available for arbitration, mediation, -or other forms s of alternative dispute resolution, and governmental entities are encouraged to utilize such methods to augment or facilitate the processes and actions contemplated by this section. (9) This section provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution: This section maynot necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking. The provisions of this section arecumulative, and do not abrogate any other remedy lawfully available, including any remedy lawfully available for governmental actions that rise to the level of a taking. However, a governmental entity shall not be liable for compensation for an action of a governmental entity applicable to, or for the loss in value to, a subject real property more than once. (10) This section does not apply to any actions taken by a governmental entity which relate to the operation, maintenance, or expansion of transportation facilities, and this section does not affect existing law regarding eminent domain relating to transportation. (11) A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue. If an owner seeks relief from the governmental action through lawfully available administrative or judicial proceedings, thetime for bringing an action under this section is tolled until the conclusion of such proceedings: (12) No cause of action exists under this section as to the application of any law enacted on or before May 11, 1995, or as to the application of any rule, regulation,: or ordinance adopted, 9 70.001 CIVIL PRACTICE AND PROCEDURE or: formally noticed for adoption, on „or : beforethat date.: A subsequent amendment to any such law, rule, regulation,; or ordinance; gives rise to a cause of action, under this section only to the extent that the application of the amendatory.: language imposes an inordinate, burden apart from the law, rule, regulation, or ordinance being amended (13) This section does. not. affect the sovereign immunity of government. Added by Laws 1995, c. 95-181, § 1, eff. Oct 1, 1995. " • • Law Review and Journal Commentaries a Statutory Stick to the Bundle of Illusory restraints and empty promises of new Adding laws' ` David A. Thomas 28 Rights: Florida's Ability to Regulate: Wetlands protectionproperty Under Current Takings Jurisprudence and Under tlrb.Law. 223•(1996). the Private: . Property Rights Protection Act of Property Rights and -Wrongs .Historic Preser- 1995. .Tirso • M. _Carreja Jr , 11 J.Land. Uae & vation and Florida's 1995 Private Property Rights Environmental L. 423 (1996)• Protection Act Roy Hunt, 48 U,F1S L Rev 709 The Best Laid Plans: The Rise and Fall of (1996). Growth Management in Florida.: Mary Dawson, 11 J.Land Use -& Environmental L 325' (1996) A Statutory Beacon m the Land ijse Ripeness Florida's Private Property 'Rights Protection -Maze R:i The Florida Private Property g Act: Does It • Inardi'nately Burden the 'Public In tection Aet Patrick W.'Maraist, 47 U F1a.L Rev. terest?- Julian' Conrad Juergensmeyer 98'UFIa 411 (1995) L.Rev. 695 (1996).< Understanding state and federal property rights 'Florida's:: Private Property Rights -:Act—What ' legislation: Jerome M. Organ, 48 Okla.L Rev 191 will it; mean. for Florida's future? %Nancy. E. Stroud and Thomas G. Wright, 20 Nova L.Rev. _683 (1996) The Harris Act: What Relief From Government Regulation Does it Provide for Private Property and Sid tlnsbaclier. 20 Nova L.Rev. 661 Owners? Vivien J Monaco, 26 Stetson L:Rev 861 Layman back• (1997): ` (1996)' Texts and Treatises 31 Am Jur Proof of Facts 3d 563, Zoning; Proof of inverse 'Condemnation from Excessive Land Eligibility for damages1 Prerequisites for bringing suit 1. Eligibility for damages ; The Rert J. Harris, Jr., Private Property Rights Protection Act, Chapter 95-181, Laws of Florida, does not provide for recovery of damages to prop- erty that is not the subject Of governmental action or regulation; but. which may : have . incidentally suffered : a .diminution 'in, •value or other., loss as a result of the regulation; of the .subject .prpperty. OpAtty.Gen. , Waiting for the go: Concurrency, takings and the Property Rights Act. Brenna Darden, David Library References . Use Regulation, 32 Am Jur Proof of Facts 3d 485, Zoning: Proof ` ofUnreasonableness of Interim Zoning and Building' Moratoria. Notes of Decisions 2. Prerequisites for bringing suit 95-78 Dec. 7,1995. 70.20. Balancing of interests It is a policy of :thisstate to. encourage municipalities, counties, and other governmental entities and sign owners to enter into relocation and reconstruction agreements at alshtuat the ow governmental entities tq undertake _public projects and accomplish pgo. expenditure of public funds while allowing the continued maintenance of private investment in signage as a medium of commercial and noncommercial communication. empowered (1) Municipalities, counties, -and all other governmental entities are specifically pow to enter into relocation andreconstruction agreements on whatever terms are agreeable to the sign owner and the municipality, county, or other governmental entity involved and to provide for relocationand reconstruction of signs by agreement,, ordinance, or resolution.: As used, in this section, a ."relocation and reconstruction agreement" means.. a consensual, Property owner, failed to comply with prerequi- sites for bringing suit under Bert J. Harris Jr., Private Property Rights Protection Act, which cre- ated a cause of action for property owners ag- grieved by governmental action that did not riSc to level of a taking, by failing to present 'to' the" city anyappraisal. supporting the claim prior to bring- ,ing suit and by presenting. his claim -less than 180 days before he filed action; requiring dismissal of complaint Sosa v_ City of West: Palm Beach, App. 4 bist .762i So.2d 981 (2000),. rehearing denied. REAL PROPERTY RIGHTS - contractual agreement between tal entity for either the recons construction of a new sign to sub (2) Except as otherwise provi mental entity may remove,' or c any portion of the interstate, fed without first paying just compen the parties or through eminent section, no municipality, count; alteration of any lawfully. erecte primary or other highway systi for such alteration as determi domain proceedings. The pro' validity, constitutionality, and waived all right to challenge. (3) ,In the event that a mur public project or public goal re municipality, county, or other in writing of the public projec other governmental entity to se the notice,the ownerof the si shall attempt to meet for purp tion agreement as provided for (4) If the parties fail to eni days after the initial notificat either party may request mi between the parties. Each p shall choose a third arbitrate arbitrate the , dispute betweei present to the parties a pro] believes equitably balances ti the parties. If the municipa accept the proposed relocati, other governmental entity ars and shall pay one-half of the (5) If the parties do not municipality, county, or othf purpose and the alteration or such alteration or removal eminent domain proceedings. (6) The requirement by a erected sign be removed of effectiveness of a developn without prior payment of ju apply when the owner of the redesignated on the future 1 single-family residential use (7)' The requirement by e erected sign be altered or r voluntary acquisition of suc constitutes a compelled re under subsection (2). (8) Nothing in this sect entity from acquiring a laN regulating the placement, jurisdiction, including the this section. Nothing in tl ZONING § 2105 shall remain valid only where development of the entire or overall project is contin- uous pursuant to the South Florida Building Code or according to Development of Regional Impact Development Order (Chapter 380 F.S.) or a Major Use Special Permit per article 17. 2105.3. Status of agreements, conditions, and safeguards under prior zoning. Where agree- ments were made or conditions, safeguards and requirements attached to grants of special permits or approval of variances, area development permits for PUD's, PUN's, PAD's, clusters or similar developments under prior Zoning Ordinance Nos. 6871 and 9500 or this ordinance, such agreements, conditions, safeguards and requirements shall remain in effect even though such zoning is repealed or amended, except where current zoning _specifically removes. the requirements nr_iim_itatinn pr^ „d.� ghat —a) -a building permit has been issued and remains in force according to the South Florida Building Code; b) construction has commenced; or c) at least one (1) unit of a multiphased project has been completed. These agreements can only be amended in conformance with this ordinance by the authority or agency who issued the original permit. Where the city has previously issued a development order or binding letter of determina- tion under the present or past provisions of section 380.06, Florida Statutes and under the provisions of prior Zoning Ordinance No. 6871, effective June 2, 1961, or under the pro- visions of prior Zoning Ordinance No. 9500, effective June 27, 1983, pertaining to a development of regional impact, said approval shall remain in full force and effect and the provisions of this ordinance shall be deemed not to impose any additional agreement, conditions, safeguards or requirements on said development of regional impact for as long as said development order is valid; said prior Zoning Ordinance Nos. 6871 or 9500, as the case may be, shall continue to be used to enforce the development order or to interpret the binding letter. Said development order may be amended without compliance with the terms of this ordinance as long as the city commission determines that the proposed amendment is not a substantial deviation from the approved development order, pursuant to the criteria set forth in section 380.06(7)(h), Florida Statutes. Any modification or amendment of said development order deemed by the commission to constitute a substan- tial deviation from its prior approval shall be processed in accordance with the terms of this ordinance. Any development so approved under the provisions of this paragraph shall not be deemed to constitute a nonconforming use, building or development under the terms of section 1101 hereof. 2105.4. Status of applications for development permits or certificates of occupancy under Or- dinance No. 11000 when Ordinance No. 11000 has been amended. 2105.4.1. Applications and permits. Any property owner or lawful representative thereof, who, prior to the effective date of any legislation repealing or modifying regulations which allow the requested activity, has properly filed a complete application for a development permit(s) with the appropriate city department, is hereby authorized to proceed with such application(s) regardless of the subsequent repeal of regulations relevant to such requested activity, unless the contrary is specifically decreed. In no Supp. No. 1 611 § 2105 MIAMI, FLORIDA case shall an application be accepted subsequent to the effective date of an ordinance which precludes the approval or action applied for. Applicants for said development permits shall be allowed to make changes in their application(s) only when so re- quired by the city as a result of its review of the application(s). The necessary building permit(s) or certificate(s) of use, whichever is first required, when reviewed under expired regulations, shall be obtained a) within one hundred eighty (180) days of the effective date of the expired regulations; b) within one hundred eighty (180) days from the date of special permit approval by the appropriate department, or final public hearing approval, as the case may be. In the event an appeal is taken to the courts, said building permit(s) or certificate(s) shall be obtained within one hundred eighty (180) days from the date the final court decision is rendered, whichever provides the longer period of time. 2105.4.2. Construction and occupancy. If actual construction is not under way, and pre- vious issued building permits or certificates of use have expired or become void, new building permits or certificates of use shall be required and shall be in accord with any new regulations established by the amendment of this ordinance. 2105.4.3. Occupancy not involving pending building permits. Where certificates of occu- pancy do not relate to a pending building permit, unless such use has been established prior to the effective date of this ordinance or its amendment which would prohibit such use, such certificates shall become void, and new certificates, conforming to the new regulations, shall be required. (Ord. No. 10771, § 1, 7-26-90; Ord. No. 10863, § 1, 3-28-91; Ord. No. 10896, § 1, 6-20-91) Sec. 2106. Zoning conformity required prior to issuance of licenses or permits. Officials charged with issuance of permits or licenses for the use of any premises for the conduct of any business, enterprise, occupation, trade, profession, or activity governed by the provisions of this zoning ordinance shall not issue such licenses or permits unless the use conforms to the requirements of this zoning ordinance. In cases where certificates of use are required by this zoning ordinance, no such license or permit shall be issued except upon certification by the zoning administrator that a valid certificate of use, accurately repre- senting current zoning status, is in effect. Sec. 2107. Permits or certificates of use granted in error do not authorize violation of ordinance; corrections required. A permit or certificate of use issued in error shall not confer any rights to construction or occupancy, and upon a finding that a permit has been so issued, it shall be revoked, provided actual construction has not commenced. No permit or certificate of use shall be deemed or construed to authorize violation of any provisions of this zoning ordinance, and such permits or certificates shall be deemed or con- strued to be valid only to the extent that the work authorized is lawful. Supp. No. 1 612 § 69.081 Note 2 biles did not constitute a "public hazard" within meaning of provision of Sunshine in Litigation Act prohibiting agreements which had purpose or ef- fect, of concealing a public hazard or information concerning a public hazard, and thus settlement agreement between financing company and expert CIVIL PRACTICE AND .PROCEDURE witness, which prohibited expert witness from servingin any investigation, claim,, lawsuit, :or ad- ministrative action involving financing company, did not violate the Act. Stivers v. Ford Motor Credit. Co., App. 4 Dist., 777 So.2d 1023 (2000), rehearing denied, review dismissed 790 So.2d 1108. CHAPTER 70 RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS Section 70.001. Private property rights protection. 70.20. Balancing of interests. Section 70.51. Land use and environmental dispute reso- lution. 70.80. Construction of ss. 70.001 and 70.51, 70.001. Private property rights protection (1) This act may be cited as the "Bert J. Harris, Jr., Private. Property Rights Protection Act." The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private propertyrights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines thatthere is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause ofaction from the law of takings, the Legislature herein' provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property. (2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specificuse of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual .loss to the fair market value of the real property caused by the action of government, as provided in this section. (3) For purposes of this section:_ (a) The existence of a. "vested right" is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by ,applying the statutory law of this state. (b) The term "existing use" means an actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject realproperty and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property. (c) The term "governmental entity" includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act; any county or municipality, or any other entity that independently exercises governmental authority. The term does not include the United States or any of its agencies, or an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority, when exercising the powers of the United States or any of its agencies through a formal delegation of federal authority. (d) The term "action of a governmental entity" means a specific action of a governmental entity which affects real property; including action on an application or permit. (e) The terms "inordinate burden" or `inordinately burdened" mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respectto the real property as a whole, or that the propertyowner is left 6 REAL PROPER with existing or permanentlyshould fairness "inordinatelybur property occasio' public nuisance property caused owner under thi: (f) The term,' at issue. The to (g) The term ments to the lar a relevant inter (4)(a) Not le governmental present the cla must submit, a demonstrates t is the culmina complete resol governmental than one: gove section to eaci (b). The gos administrative the owner's p days after the to the Depart and telephon information' i subsequent, j1 (c) During governmentz 1. An ad, the developr. 2. Incre: 3. The t 4. Land 5. Mitig 6. Loca 7_ .Cond 8.:Are proposed u 9. Issu: relief. 10.: Pu entity. 11. Nc If the prc the settle exception graph (d) (d)1. section sc dD PROCEDURE !xpert witness from claim, lawsuit, or ad - financing company, vets v. Ford Motor T So2d 1023 (2000), issed 790 So.2d 1108. HTS mental dispute reso- 001 and 70.51, Zights Protection nces of the state t, or limit private >n or the United state interest in lens. Therefore, Jon from ,the law ,nsation, when a state, as applied, ened an existing •operty owner of he actual loss to `, as provided in ie principles of y applying the real property, :idental to, the stave land uses :land uses and he fair market onal or a local any county or uthority. The of the state, a or special act, governmental ies through a governmental action of one )roperty such trnent-backed fic use of the owner is left REAL PROPERTY RIGHTS § 70.001 with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. The terms "inordinate burden or "inordinatelyburdened' : do not include temporary' impacts to real property; impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property;' or impacts to real property caused by an action of a governmental entity taken to grant relief to a property owner under this section. (f) The term "property. owner" means the person who holds legal title to the real property at issue. The term does not include a governmental entity. (g) The term "real property" means land and includes any appurtenances and improve- ments to the land, including any other relevant real property in which the property owner had a relevant interest. • (4)(a) Not less than 180 days prior to filing an action under this section against a governmental entity, a property owner who seeks compensation under this section must present the claim in writing to the head of the governmental entity. The property owner must submit, along with the claim, a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property: If the action of government is the culmination of a process that involves more than one governmental entity, or if a complete resolution of all relevant issues, in the view of the property owner or in the view of a governmental entity to whom a claim is presented, requires the active participation of more than one governmental entity, the property owner shall present the claim as provided in this section to each of the governmental entities.' (b) The governmental entity shall provide written notice of the claim to all parties to any administrative action that gave rise to the claim; and to owners of real property contiguous to the owner's property at the addresses listed on the most recent county tax rolls. Within 15 days after the claim being presented, the governmental entity shall report the claim in writing to the Department of Legal Affairs, and shall provide the department with the name, address, and telephone number of the employee 'of the governmental entity from whom additional information' may be 'obtained about the claim during the pendency of the claim and any subsequent judicial action: (c) During the 180-day—notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate: 1. An adjustment of land development or permit standards or other provisions controlling the development or use of land. 2. Increases or modifications in the density, intensity, or use of areas of development. 3. The transfer of developmental rights. 4. Land swaps or exchanges. 5. 'Mitigation,'including payments in lieu of onsite`mitigation. 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted.,:. 8. A requirement thatissues be addressed on a more comprehensive basis than a single proposed use or development 9. Issuance of the development order, a variance, special exception, or other extraordinary relief: 10.. Purchase of the, real property, or an interest therein, by an appropriate governmental entity. 11. No changes to the action ofthe governmental entity. If the property owner accepts the settlement offer, the governmental entity may implement the settlement _ offer by appropriate development :agreement; by issuing a variance, special exception, or other, extraordinary relief; or by other appropriate method, subject to para- graph (d)• (d)1. Whenevera governmental entity.: enters into a settlement agreement under this section which would have the effect'. of a modification, variance, or a special exception to the 7