Golf Club of Plantation, Inc. v. City of Plantation

Page 166

717 So.2d 166

23 Fla. L. Weekly D2149

GOLF CLUB OF PLANTATION, INC., a Florida corporation, Appellant, v. CITY OF PLANTATION, a municipal corporation organized and existing under the laws of the State of Florida, Appellee.

No. 97-0218.

District Court of Appeal of Florida Fourth District.

Sept. 16, 1998.

James C. Brady of Brady & Coker, Fort Lauderdale, for appellant.

Kenneth E. Keechl of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for appellee.

SHAHOOD, Judge.

The dispute in this case arises out of the City of Plantation's ("the City") refusal to allow Golf Club of Plantation, Inc. ("Golf Club") to develop approximately 100 acres of land adjacent to the 213.82 acres it currently utilizes as a golf course with a restaurant and clubhouse. Citing zoning laws, the City denied Golf Club's various requests to construct single-family dwellings on the property surrounding the golf course. Golf Club then filed a six-count complaint against the City seeking damages based on a taking without just compensation. ¹

Golf Club alleged that prior to purchasing the property at issue, Golf Club representatives were advised by the head of the City's Planning Department that the property on the perimeter of the golf course could later be converted to single-family development. Based on that representation, Golf Club purchased the property in 1989. Golf Club alleged that a taking occurred when the City subsequently amended its land use plan, prohibiting Golf Club from building single-family residences on the golf course and denying Golf Club's applications for building permits to install netting and lighting on the driving range and lighting on the first nine holes of the golf course. As its reason for denying the applications, the City maintained that its policy was to preserve open spaces for the benefit of the community, and that the proposed construction would interfere with the view and light of those residents in the developments bordering and across from the golf course property.

On January 12, 1995, following a hearing on the City's motion to dismiss the complaint, the court entered an order dismissing count II with prejudice and counts V and VI without prejudice. Sometime later, the court granted the City's motion for partial summary judgment on count I, the facial takings claim, finding that while the value of the property had been diminished by the City's plan, Golf Club had not been denied all or a substantial portion of the beneficial uses of the property. Thereafter, the trial court granted partial summary judgment on counts III and IV, and ultimately entered a Final Judgment of Dismissal against Golf Club.

Golf Club appeals the dismissal of its as-applied, Fifth Amendment takings claim (count II), its as-applied, Fourteenth Amendment Due Process takings claim (count IV), and its claim for declaratory relief (count V). Upon review, we hold that the trial court erred in dismissing the claims based on the Fifth and Fourteenth Amendments, and reverse, but we affirm the dismissal of the claim for declaratory relief.

I. As-Applied Fifth Amendment Takings Claim

The trial court dismissed count II finding that it was merely a reiteration of count I. A comparison of both counts shows that the trial court was correct since the allegations and the prayers for relief are virtually identical. The dismissal should have been without prejudice, however, to allow Golf Club to amend its complaint to assert which particular application of the comprehensive plan amounts to an as-applied taking of the golf course property. See Omasta v. Bedingfield, 689 So.2d 409, 410 (Fla. 5th DCA 1997)(unless it appears that the privilege to amend has been abused or that a complaint is clearly untenable, it is an abuse of discretion to dismiss with prejudice.)

In Taylor v. Village of North Palm Beach, 659 So.2d 1167, 1170 (Fla. 4th DCA 1995), this court recognized that a facial takings claim is distinct from an as-applied claim.

In a facial takings claim, the landowner claims that the mere enactment of the regulation constitutes a taking of all affected property without adequate procedures to provide prompt, just compensation. In an as-applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of property.

Id. at 1170-71. In addition, the standard of proof differs between the two claims. See id., n. 1. In a facial takings claim, there must be a deprivation of "all" economic use while in an as-applied claim, there must be only a "substantial" deprivation. See id. Proof of a substantial deprivation "requires a fact-intensive inquiry of the impact of the regulation on the economic viability of the landowner's property by analyzing permissible uses before and after the enactment of the regulation." See id.

Based on the foregoing, we reverse and remand the order dismissing count II with directions that Golf Club be allowed to amend its pleadings to properly allege an as-applied claim.

II. As-Applied Fourteenth Amendment Takings Claim

In count IV, Golf Club asserted that the City's application of the zoning ordinance amounted to an as-applied taking of the golf course property, and sought compensation in the amount of $3,000,000.00. In disposing of this count by summary judgment, the trial court found that "the [City]'s application of the land use regulations to [Golf Club]'s property does not constitute an 'as applied' taking, even though the [Golf Club]'s use of the land is restricted, since there are other permissible uses available to him." The court found further that

the [City] did not condemn a vertical easement upon the property, even though it prevented the [Golf Club] from building any homes on the land, since the Zoning Code specifically provides for alternative permissible uses. Although, the Court recognizes that the difference in value between the kinds of uses may be disheartening, it does not rise to the level of being confiscatory. Consequently, the mere fact that the property is not zoned for its highest value and best use does not invalidate the land use policy.

The party moving for summary judgment must show conclusively the absence of any genuine issues of material fact. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). "If the evidence raises any issues of material fact, if it is conflicting, if it will permit different inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it." Id. The trial court must interpret every possible inference in favor of the non-movant. See id. The trial court's ruling comes clothed with a presumption of correctness and shall not be disturbed absent an abuse of discretion. Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990).

The Fifth Amendment of the United States Constitution provides "nor shall private property be taken for public use, without just compensation." U.S. Const., amend. V. The Fourteenth Amendment's Due Process Clause makes the "Takings Clause" applicable to the states as well as the federal government. U.S. Const., amend. XIV, § 1. When the government "takes" private property, compensation must be paid; however, when the state merely regulates the use of the property consistent with the state's police power, no compensation need be paid even though the value of the property or the owner's use of same has been substantially diminished.

A land use regulation is not a taking if (1)it "substantially advances a legitimate state interest, and (2)it does not deny an owner economically viable use of his land." Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (open-space zoning plans are legitimate exercises of a city's police power to protect its citizens from the ill effects of urbanization), overruled on other grounds by First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). "Although no precise rule determines when property has been taken, ... the question necessarily requires a weighing of private and public interests." Id. 447 U.S. at 260-61, 100 S.Ct. 2138. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), the Supreme Court stated that "[i]n 70-odd years of succeeding 'regulatory takings' jurisprudence, we have generally eschewed any 'set formula' for determining how far is too far, preferring to 'engag[e] in ... essentially ad hoc, factual inquiries.' " Id. at 1015 (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978))(quoting Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962)); see also Palm Beach County v. Wright, 641 So.2d 50, 53 (Fla.1994) (the takings issue has been examined by engaging in essentially ad hoc, factual inquiries that have identified several factors--such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action--that have particular significance) (citations omitted); Department of Transp. v. Weisenfeld, 617 So.2d 1071 (Fla. 5th DCA 1993), approved, 640 So.2d 73 (1994) (extent of deprivation and interference with use of property are issues of fact); Gardner v. New Jersey Pinelands Comm'n, 125 N.J. 193, 593 A.2d 251 (1991) (application of takings principles requires a fact-sensitive examination of the regulatory scheme, focusing on whether it substantially advances a legitimate public purpose and whether it excessively interferes with property rights and interests). ²

Under Lucas, the factual criteria to consider when determining whether a takings has occurred are (1)whether there was a denial of economically viable use of the property as a result of the regulatory imposition; (2)whether the property owner had...