Alachua Land Investors, LLC v. City of Gainesville

107 So.3d 1154

ALACHUA LAND INVESTORS, LLC, Appellant,

v.CITY OF GAINESVILLE, a political subdivision, Appellee.

No. 1D11–6579.

District Court of Appeal of Florida, First District.

Jan. 31, 2013.

S.W. Moore, of Moore, Bowman & Rix, P.A., Sarasota; and Patrice Boyes, of Patrice Boyes, P.A., Newberry, for Appellant.

Timothy J. McDermott, of Akerman Senterfitt, Jacksonville; and Daniel M. Nee, Office of City Attorney, Gainesville, for Appellee.

RAY, J.

Alachua Land Investors, LLC (ALI), appeals a final judgment entered in favor of City of Gainesville (City) on ALI's action for inverse condemnation. ALI contends that the trial court's ruling on ripeness constitutes error as a matter of law because ALI filed a meaningful application and obtained a final decision from the City. Given ALI's failure to satisfy the ripeness requirement, we affirm.

I. Facts and Procedural History

ALI does not seek review of the trial court's findings of fact. This action arose from the City's denial of plat approval for the final development phase of the 300–acre Blues Creek residential subdivision owned by Larry and Bonnie Ross, through ALI. ALI and its predecessor developed this property over the years in a series of units and phases. The specific property involved in this litigation comprises 127 acres, thirty-seven of which ALI intended for residential development of Unit Five, Phases Two and Three. These two phases represent the last remaining stages of the extensive Blues Creek development. The other parcel within the 127 acres comprises ninety unimproved acres and is designated as a “Drainage Easement, Developed Recreation and Conservation Area” on the Blues Creek Master Plan (Master Plan). The conservation area is of particular significance in this litigation because it includes the most environmentally sensitive area in the Master Plan and is nearly surrounded by the developable portions of the Blues Creek subdivision. A waterway (Blues Creek) flows through the conservation area.

The Suwannee River Water Management District (SRWMD) permitted the ninety-acre conservation area for retention of surface water from the surrounding land. A third-party environmental group brought an administrative challenge to the conservation area permit, which resulted in a June 1988 negotiated settlement agreement between the landowner (ALI's owner) and the environmental group. The SRWMD accepted the terms of the settlement agreement as an amendment to the permit. The settlement agreement includes the following land-use restrictions:

There shall be no construction or disturbance of the conservation area pre-or post-development, nor any developed recreation built in the conservation area, except for nature trails, walkover structures and gazebos which retain the land predominantly in its natural, scenic and wooded condition; or minor works necessary to control erosion or assure dispersion (sheetflow) of runoff entering the conservation area provided they are out of or at the boundary of the conservation area.

(emphasis added). This language appears in the Master Plan in substantially the same form. Additionally, under general notes, the Master Plan mandates that a fifty-foot construction buffer be provided on both sides of the Blues Creek centerline.

The Master Plan is a part of the existing zoning regulations governing ALI's property. A city ordinance requires a plat application to conform with existing zoning requirements. Under the City's ordinances, the City Commission is the only Gainesville governmental body that can grant final approval to a subdivision plat application. In its prior applications for proposed Phases Two and Three of Unit Five, ALI never proceeded through the full administrative process. Petition 76SUB was the first and only plat application that ALI submitted to the City Commission for a review and a vote on the request for design approval of these two phases. The petition indicated that a sanitary sewer line was projected to go through the ninety-acre conservation area for approximately 300 feet and across Blues Creek itself. Given the fact that ALI's owner was directly involved in the negotiations that led to the settlement agreement, ALI knew of the land-use restrictions governing “construction or disturbance of the conservation area.”

In May 2008, the City Commission voted 5–2 to deny the petition. ALI filed an inverse condemnation action alleging a partial regulatory taking by the City in the denial of plat approval. The trial court found that the nature and location of the proposed sewer line violates the settlement agreement and is inconsistent with existing zoning regulations. The court determined that some evidence adduced at trial had addressed alternatives to the proposed sewer line across the conservation area. One alternative was a lift station, albeit at greater expense. Another option was to convert the eight lots (constituting Phase Three of Unit Five) into an “estate lot” served by a septic tank, subject to approval of a variance. Because ALI neither offered any revisions or other options, nor requested any change to accommodate its ultimate development plans, the court concluded that this claim is not yet ripe for litigation. We agree with this conclusion.

II. Law

The Fifth Amendment prevents the taking of private property for public use without just compensation and applies to the states through the Fourteenth Amendment. See U.S. Const. amend. V. & XIV; Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Florida has its own “taking” provision in article X, section 6 of the Florida Constitution. A taking may result from a “physical invasion” of the property or may follow a “regulatory imposition.” Good v. United States, 189 F.3d 1355, 1360 (Fed.Cir.1999) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014–16, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)); Keshbro, Inc. v. Miami, 801 So.2d 864, 869–70 (Fla.2001). “The general rule ... is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Whether the government has gone too far “depends on the particular facts.” Id. at 413.

ALI presented an as-applied challenge. “Any analysis in an as-applied regulatory taking claim must start with the threshold question of ripeness....” Riviera Beach v. Shillingburg, 659 So.2d 1174, 1180 (Fla. 4th DCA 1995) (noting that “Florida courts have ... adopted the ripeness requirement”). Ripeness presents a jurisdictional issue. See San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 633, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981). Ordinarily, a claim will not be ripe unless the claimant has made at least one “meaningful application.” MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 352–53 & n. 8, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Palm Beach Polo, Inc. v. Vill. of Wellington, 918 So.2d 988, 994, 997 (Fla. 4th DCA 2006) (affirming that a “takings” claim was not ripe for adjudication, given the landowner's failure to present a meaningful application for amendment of the comprehensive plan); Martin Cnty. v. Section 28 P'ship, Ltd., 676 So.2d 532, 537 (Fla. 4th DCA 1996) (on mot. for reh'g, clarification, and certification); Shillingburg, 659 So.2d at 1180;Glisson v. Alachua Cnty., 558 So.2d 1030, 1036 (Fla. 1st DCA 1990). The landowner must take “reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering the development plans for the property, including the opportunity to grant any variances or waivers allowed by law.” Palazzolo, 533 U.S. at 620–21, 121 S.Ct. 2448. The corollary is that the ripeness doctrine does not require a landowner who alleges a regulatory partial taking to file a meaningless, futile application to the governmental agency. See Eide v. Sarasota Cnty., 908 F.2d 716, 726 (11th Cir.1990) (on pet. for reh'g) (describing the “futility exception” to the “final decision” requirement); Shillingburg, 659 So.2d at 1181;McCole v. Marathon, 36 So.3d 750, 754 (Fla. 3d DCA 2010).

Another component of ripeness is finality. In the seminal decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Court stated:

[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.

Id. at 186. This requirement of finality “applies to decisions about how a takings plaintiff's own land may be used,” and it reflects “the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 738, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997); see Williamson Cnty., 473 U.S. at 190–91, 105 S.Ct. 3108.Williamson County and its progeny uphold “the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation.” Palazzolo, 533 U.S. at 620, 121 S.Ct. 2448;see Greenbrier (Lake Cnty. Trust Co. No. 1391) v. United States, 40 Fed.Cl. 689, 702 & n. 12 (Fed.Cl.1998).

No bright-line test exists for determining how far the landowner must go in challenging the limits of allowable development under the regulations. See Williamson Cnty., 473 U.S. at 199, 105 S.Ct. 3108 (acknowledging that defining whether a regulation “goes too far” is a “difficult problem”). In Martin County v. Section 28 Partnership, Ltd., the Fourth District Court characterized the general law as follows:

It is a fair summary of the law that in “takings”...