Jamieson v. The Town of Fort Myers Beach

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JAMES J. JAMIESON, Appellant, v. THE TOWN OF FORT MYERS BEACH, FLORIDA, Appellee.

No. 2D21-2723

Florida Court of Appeals, Second District

December 2, 2022

Appeal from the Circuit Court for Lee County; Alane Laboda, Judge.

Ryan C. Reese of Moore Bowman & Reese, P.A., Tampa, for Appellant.

Jeffrey L. Hochman and Hudson C. Gill of Johnson, Anselmo Murdoch, Burke, Piper & Hochman, PA, Ft. Lauderdale, for Appellee.

VILLANTI, JUDGE.

James J. Jamieson, the plaintiff below, appeals from a final summary judgment entered in favor of the defendant, the Town of Fort Myers Beach (the Town). This is Jamieson's second appeal from a final summary judgment entered in the same case. See Jamieson v. Town of Fort Myers Beach (Jamieson I), 292 So.3d 880 (Fla. 2d DCA 2020). For the reasons explained below, we again reverse, and we remand for further proceedings.

This case arises from Jamieson's attempt to develop a property consisting of two contiguous parcels of land comprising about seven acres in Fort Myers Beach. The property was originally platted with forty lots zoned for single-family homes. However, in direct contradiction to the plat map, the property was also designated wetlands, upon which construction of residential units was limited to one unit per twenty acres, effectively frustrating any possibility for residential development of the property.

During a period of approximately ten years prior to filing suit Jamieson attempted to change and/or correct the wetlands designation by several means, including an application for boundary clarification regarding the extent of the wetlands, a request to transfer the residential density from the affected lots to another parcel, a request for an administrative determination that the wetlands designation was inaccurate as demonstrated by a South Florida Water Management District (SFWMD) survey that determined that the property was only sixty-one percent wetland, a request for a minimum use determination (MUD) to establish that the platted lots were entitled to residential development despite being "nonconforming,"^[1] and a request for a variance from the Town's Land Development Code to allow development in accordance with state guidelines, which allowed development on wetlands with mitigation. All of his efforts failed.

In 2016, Jamieson filed a notice of claim pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, § 70.001, Fla. Stat. (2016) (the Bert Harris Act). The Town Attorney responded by letter, dated October 25, 2016. The letter offered to settle Jamieson's claim by "administratively" removing the wetlands designation from three lots, provided that Jamieson give up his development rights to the remaining thirty-seven lots. The offer was contingent on approval by the Town Council. Jamieson rejected the offer and filed suit.

Jamieson's complaint alleged categorical inverse condemnation by regulatory taking^[2] (count one); partial inverse condemnation by regulatory taking^[3] (count two); and violation of the Bert Harris Act (count three). Both parties moved for summary judgment, and the trial court entered a final summary judgment in favor of the Town on January 8, 2019. The trial court's rationale for granting summary judgment was twofold: (1) count 1 of Jamieson's complaint was barred as a matter of law because the property he sought to develop had been designated wetlands long before he purchased it, and (2) Jamieson's complaint was not ripe as to all three counts because he had not exhausted all available administrative remedies. Jamieson appealed.

This court reversed the first final summary judgment, finding reversible error in both of the trial court's reasons for granting it. See Jamieson I, 292 So.3d at 886-88 (holding (1) that Jamieson "acquired the full property rights when he bought the property, including the right to challenge the [preexisting] wetlands designation," and (2) that at the time Jamieson filed his complaint, "the permissible uses of the property were clear to a reasonable degree of certainty" and additional attempts to obtain relief via the administrative avenues left open to him would be futile). On April 22, 2020, the trial court vacated the first final summary judgment.

A few weeks later, instead of scheduling the matter for trial, Jamieson renewed his motion for summary judgment as to count I only. Over the course of the next fifteen months, the trial court denied Jamieson's motion for summary judgment as to count I and granted the Town's cross-motion for summary judgment as to count I, denied Jamieson's motion for summary judgment as to count III and granted the Town's cross-motion for summary judgment as to count III,^[4] granted the Town's motion for summary judgment as to count II, and, on August 13, 2021, rendered a final judgment.^[5]

In this appeal, Jamieson challenges the trial court's orders denying his motions for summary judgment and granting the Town's motions for summary judgment.

Analysis

Our review of the trial court's order granting final summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Count I: Inverse Condemnation/Total Regulatory Taking

Because Jamieson alleged both a total and, alternatively, a partial regulatory taking in counts I and II, the following general principles apply to those counts:

[A]n inverse condemnation . . . is defined as "a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken." Ocean Palm Golf Club P'ship v. City of Flagler Beach, 139 So.3d 463, 471 (Fla. 5th DCA 2014) (quoting Osceola Cty. v. Best Diversified, Inc., 936 So.2d 55, 59-60 (Fla. 5th DCA 2006)). A regulatory taking can be either total or partial. In a "total" or "per se" taking, the government's regulations effectively deny all economically beneficial or productive use of the property. Id. (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). In a "partial" or "as-applied" taking under Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the court must evaluate: "(1) the economic impact of the regulation on [the property owner]; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action." [Ocean Palm, 139 So.3d at 471] (quoting Leon Cnty. v. Gluesenkamp, 873 So.2d 460, 467 (Fla. 1st DCA 2004)).

The first step for a court in analyzing whether there has been a taking under Lucas or Penn Central is to "define what constitutes the relevant parcel before [it] can evaluate the regulation's effect on that parcel." Dist. Intown Props. Ltd. P'ship v. [District] of Columbia, 198 F.3d 874, 879 (D.C. Cir. 1999). Stated differently, the subject of the alleged taking must first be determined. Ocean Palm, 139 So.3d at 468 n.7.

Town of Ponce Inlet v. Pacetta, LLC, 226 So.3d 303, 312 (Fla. 5th DCA 2017) (second, third, and fifth alterations in original) (footnotes omitted).

In his renewed motion for summary judgment on count I, Jamieson argued that the Town's categorization of his property as wetlands-which he asserted was incorrect-precluded him from using his property "in any economic manner." Therefore, he argued, as he does on appeal, that he was deprived of all economic use of his property and is entitled to compensation for the loss. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015-19 (1992) (reaffirming the principle that where government regulations deny a property owner all economically viable use of his land, the owner has suffered a compensable taking).

The trial court found that Jamieson's claim that he was deprived of all economic use of the property was refuted by the Town's settlement offer, which would have allowed Jamieson to build single-family homes on three of his forty lots. In reaching this conclusion, the trial court held that footnote two of Jamieson I constituted "the law of the case on that issue." Explaining further, the trial court said:

[Jamieson] argued that the settlement offer was contingent, but the District Court found the Town's position, pursuant to the settlement offer, was known to a reasonable degree of certainty. Had [Jamieson] not rejected the settlement offer, there is a reasonable degree of certainty that the Town Council would have approved the settlement offer it allowed counsel to make on its behalf. Court approval could then have been requested.

The trial court also found that even with the wetlands designation, the Town's comprehensive plan allowed for "passive recreation" (such as fishing, boating, and hiking) and walking access to tidal waters (via boardwalks and docks) on the property. The court also observed, "Neither party offered any argument or evidence as to whether [Jamieson] could charge consumers for access to the Property for those purposes, nor the value to [Jamieson] if he did so."

Discussion

The trial court misinterpreted Jamieson I. Our discussion leading up to and including footnote two was directed solely to the trial court's holding that Jamieson's claim was not ripe:

Here, the permissible uses of the property were clear to a reasonable degree of certainty when Jamieson filed his complaint. In 2011, Jamieson challenged the wetlands designation and was told that the wetlands designation was not erroneous. In 2013, he submitted an application for a comprehensive plan amendment, seeking to

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