Brevard Cnty. v. Waters Mark Dev. Enters., LC

350 So.3d 395

BREVARD COUNTY, Florida, Appellant,

v.WATERS MARK DEVELOPMENT ENTERPRISES, LC, Appellee.

Case No. 5D21-1809

District Court of Appeal of Florida, Fifth District.

Opinion filed September 9, 2022

Rehearing Denied November 08, 2022

Dale A. Scott and Michael J. Roper, of Roper, P.A., Orlando, for Appellant.

John H. Pelzer, Richard A. Epstein, Jeffrey A. Backman and Roy Taub, of Greenspoon Marder, LLP, Fort Lauderdale, and Geoffrey A. Pette, of Pette, P.A., Fort Lauderdale, for Appellee.

NARDELLA, J.

This appeal involves a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act ("Bert Harris Act" or "Act"), section 70.001, Florida Statutes (2012). The Appellant, Brevard County ("County"), appeals a summary judgment ruling for Appellee, Waters Mark Development Enterprises, LC ("Waters Mark") on the issue of liability under the Act. Because the County came forward with sufficient evidence that Waters Mark's proposed development faced regulatory barriers, which, apart from the County's challenged action, could have barred the development, we reverse the trial court's entry of summary judgment for Waters Mark. The County also appeals the denial of its competing motion for summary judgment. The Court lacks jurisdiction over that ruling and, thus, we dismiss that aspect of the appeal.

Undisputed Facts and Procedural History

In 2006, Waters Mark purchased land ("Property") in Brevard County with plans to develop a 90-unit residential subdivision covering approximately 97 acres of the Property. At the time, the comprehensive future land use plan ("comprehensive plan")¹ permitted the building of one residence per acre on the Property. Although Waters Mark's proposed development complied with that aspect of the comprehensive plan, it still needed to apply for and obtain approval from the County and other agencies to proceed.

The St. Johns River Water Management District ("District") was among the governmental agencies whose approval Waters Mark needed to develop a residential subdivision on the Property. After a year of back-and-forth between the District and Waters Mark, it appears important issues remained unresolved. For example, it appears Waters Mark had yet to demonstrate that the development would not affect water quality or impact the surrounding wetlands. Without curing the concerns raised by the District, Waters Mark's application with the District languished, leading it to inform Waters Mark that its application would be deemed abandoned if it did not timely move forward in the process. Eventually, Waters Mark abandoned its first attempt to develop the Property.

More than a year after Waters Mark abandoned its first application, the County adopted Ordinance 09-21 ("Ordinance"). The Ordinance amended the comprehensive plan by lowering the developmental density for the Property and surrounding land. The new developmental density allowed only one residence per 2.5 acres.

Approximately three years after the Ordinance was adopted, Waters Mark submitted a new application with the County for a similar subdivision. Per the new application, Waters Mark sought to develop a similarly designed 84-unit residential subdivision covering approximately 97 acres of the Property.

As part of the initial review of the second application, the County sent Waters Mark a letter with several "pre-application review comments," including one that "disapproved" of the proposed development for exceeding the new developmental density in the amended comprehensive plan ("Comments Letter"). In apparent response to the Comments Letter and without completing the other steps of the County's application process,² Waters Mark discontinued its second effort to develop the Property and sent a pre-suit notice to the County, claiming that its application of new density requirements to Waters Mark's second proposed development inordinately burdened an existing use of the Property in violation of the Bert Harris Act.

Waters Mark filed suit. The County answered and asserted several affirmative defenses, of which one is determinative in this interlocutory appeal, namely, that regardless of the residential density allowed, Waters Mark could not have developed its desired residential subdivision. This was the issue at the heart of Waters Mark's motion for summary judgment, with each party offering evidence in support of its position. Without any mention of the County's responsive argument and the evidence on which it relied, the trial court granted Waters Mark's motion for summary judgment and denied the County's competing motion for summary judgment. This appeal challenges both rulings.

The New Summary Judgment Standard

The Florida Supreme Court recently amended Florida Rule of Civil Procedure 1.510 to conform with the federal summary judgment standard. Fla. R. Civ. P. 1.510(a) (2021) ("The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.").

Under the amended rule, which applies to the orders being appealed, summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id . Looking to the federal summary judgment standard, an issue of fact is "genuine" only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the fact could affect the outcome of the lawsuit under the governing law. Id.

The moving party bears the initial burden of identifying those portions of the record demonstrating the lack of a genuinely disputed issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant does so, then the burden shifts to the non-moving party to demonstrate that there are genuine factual disputes that preclude judgment as a matter of law. Porter v. Ray , 461 F.3d 1315, 1320 (11th Cir. 2006). To satisfy its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To do so, the non-moving party must go beyond the pleadings and "identify affirmative evidence" that creates a genuine dispute of material fact. Crawford–El v. Britton , 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).

In determining whether a genuine dispute of material fact exists, the court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party and must resolve any reasonable doubts in that party's favor. Skop v. City of Atlanta , 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment should only be granted "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]" Matsushita , 475 U.S. at 587, 106 S.Ct. 1348.

We review the order granting summary judgment and issues involving statutory interpretation de novo. Dean Wish, LLC v. Lee Cnty ., 326 So. 3d 840, 845 (Fla. 2d DCA 2021), review denied , No. SC21-1529, 2022 WL 852956 (Fla. Mar. 23, 2022).

Waters Mark's Motion for Summary Judgment

The County argues that the trial court erred by granting summary judgment in favor of Waters Mark because there is a genuine dispute of material fact as to whether the application of the lower density limitation inordinately burdened an existing use of the Property.³ In order to analyze the County's argument, we begin with the requirements of the Bert Harris Act.

The Act provides a mechanism to compensate landowners whose property is affected by government action not rising to the level of a taking. § 70.001(1), Fla. Stat. (2012).⁴ To prevail under the Act, a property owner must prove that "a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property." § 70.001(2), Fla. Stat. (2012).

An "existing use" is defined as "[a]ctivity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property ... 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." § 70.001(3)(b) 2., Fla. Stat. (2012). Here, the County agrees that under the old comprehensive plan Waters Mark had the ability to build one residence per acre and therefore had an "existing use" under the Act.⁵

But a change in land use which impacts an "existing use" does not necessarily equal an "inordinate burden." Karenza Apartments, LLP v. City of Miami , 347 So.3d 431, 432 (Fla. 3d DCA July 13, 2022) (explaining that even if a landowner has an existing use under the Act the trial court must examine and objectively analyze whether that landowner's investment-backed expectation for the property is objectively reasonable). An inordinate burden is defined as "an action of one or more governmental entities [that] 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 ...." § 70.001(3)(e) 1., Fla. Stat. (2012). This is akin to a causation requirement that each landowner must prove to prevail. If Waters Mark could not have developed the proposed residential subdivision for other reasons, then the County did not cause an "inordinate burden."

Relatedly, if Waters Mark could not have developed the proposed residential subdivision for other reasons, then Waters Mark's expectation to the develop the Property was unreasonable. This is an objective test. Karenza Apartments, LLP , 347 So.3d at 432. Where unrelated physical or regulatory barriers stand in the way of a landowner's intended development, it cannot be...