United States District Court, N.D. Florida, Pensacola Division
CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE
a land use case. Plaintiffs have filed constitutional
challenges to two ordinances passed by the Defendant Walton
County, Florida, and a request for entry of a preliminary
injunction as to one of them. ECF No. 43. Defendant has filed
a Motion to Dismiss Plaintiffs' claim against that
ordinance. ECF No. 55. Both motions are due to be denied.
1971, the Goodwins purchased beach-front property in Walton
County (“County”), where they built a home that
they occupy as their primary residence. In June, 2016, the
County adopted a beach obstruction ordinance, which states
“[i]t shall be unlawful for any person to place,
construct or maintain an obstruction on the beach.
Obstructions include, but are not limited to ropes, chains,
signs, or fences.” Walton Cty. Code, Sec. 22-55
(“Sign Ordinance”). In June of 2016, the Goodwins
filed their Complaint in this case, raising a First Amendment
Free Speech challenge to the Sign Ordinance, and filed a
Motion for Preliminary Injunction. The County responded,
arguing that the public had a right to use the dry sand beach
under the customary rights doctrine. A consolidated and
expedited trial on the Motion for Preliminary Injunction and
the merits was scheduled, but on September 22, 2016, the
County consented to the preliminary injunction, precluding
enforcement of the Sign Ordinance during the pendency of the
case. The trial was then continued and the discovery period
October 25, 2016, the County enacted another ordinance,
titled “Protecting the Public's Long-Standing
Customary Use of the Dry Sand Areas of the Beaches.”
(“Customary Use Ordinance”). The Customary Use
Ordinance, which will go into effect April 1, 2017, declares
that “[t]he public's long-standing customary use of
the dry sand areas of all of the beaches in the County for
recreational purposes is hereby protected.”
Id. § 2.1. It prohibits any “individual,
group, or entity [from] impe[ding] or interfer[ing] with the
right of the public at large, including the residents and
visitors of the County, to utilize the dry sand areas of the
beach that are owned by private entities for recreational
purposes.” Id. More specifically, the
Ordinance provides that the public may, inter alia, walk,
jog, sunbathe with or without a beach umbrella, picnic, fish,
play beach games, build sand castles and other similar
traditional recreational activities on the dry sand area of
the beach “owned by private entities.”
Id. The Ordinance, however, prohibits public
recreation within a fifteen foot buffer zone “located
seaward from the toe of the dune or from any permanent
habitable structure owned by a private entity.” The
buffer zone does “not apply to the Walton County
Sheriff's Office, the Walton County Tourist Development
Council, the South Walton Fire District, and other emergency
service providers.” Id. The Customary Use
Ordinance imposes a $500.00 fine on anyone who impedes or
interferes with the public's use of the dry sand areas
outside of the buffer zone.
November 7, 2016, the Goodwins filed a First Amended
Complaint, adding a facial physical takings challenge to the
Customary Use Ordinance under the Fifth Amendment, Count II.
ECF No. 41. They also filed a Motion for Preliminary
Injunction to preclude the ordinance from becoming effective
on April I, 2017. The County filed a Motion to Dismiss the
Motion to Dismiss
Standard of Review
pleading rules require only “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2); see Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009). This requires a
complaint to include “sufficient factual matter,
accepted as true, to ‘state a claim of relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Legal “labels and
conclusions” devoid of any factual support will not
suffice and are not entitled to an assumption of truth.
Id. (quoting Twombly, 550 U.S. at 555
(2007)). The “plausibility standard” requires a
showing of “more than a sheer possibility” that
the defendant is liable on the claim. Id. When
reviewing a Rule 12(b)(6) motion to dismiss, the Court
considers only the pleadings, attached exhibits, or documents
incorporated into the complaint by reference. See Thaeter
v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342,
1352 (11th Cir. 2006). In considering the motion, the Court
accepts the allegations of the complaint as true and
construes them in the light most favorable to the plaintiff.
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)
Takings Clause of the Fifth Amendment provides that private
property shall not “be taken for public use, without
just compensation.” U.S. Const. amend. V. An
unconstitutional taking occurs either because the
government's action constituted an invalid exercise of
the police power, Hawaii Hous. Auth. v. Midkiff, 467
U.S. 229, 240 (1984) (stating “[t]he ‘public
use' requirement [of the Takings Clause] is . . .
coterminous with the scope of a sovereign's police
powers.”), or the government denied a property owner
just compensation when taking his property. See Penn
Central Transportation Co. v. New York City, 438 U.S.
104, 123-24 (1978) (“Penn Central”). The
Takings Clause does not per se prohibit the taking
of private property; rather it requires just compensation for
the property owner when a lawful taking occurs.
Williamson Cty. Reg'l Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194 (1985). Despite
this basic premise, “the question of what constitutes a
taking [remains] a problem of considerable complexity.”
Gulf Power Co. v. United States, 998 F.Supp. 1386,
1390 (N.D. Fla. 1998). There are several types of takings
claims, with differing standards. See Eide v. Sarasota
Cty., 908 F.2d 716, 722 (11th Cir. 1990) (discussing
different types of “takings” and noting that
“often one cannot tell which claim has been brought or
which standard is being applied.”).
classic taking involves the government's exercise of
eminent domain to appropriate private property for public
use, which is not at issue in this case. Lingle v.
Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005).
Government regulation can also sufficiently interfere with
the use of private property to the point that a taking
occurs. Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 415 (1922). Generally, where a regulation interferes
with private property, a court engages in “ad hoc,
factual inquiries” under the multi-factor balancing
test in Penn Central to determine whether a
regulatory taking has occurred. Penn Central, 438
U.S. at 124. Penn Central requires the court to
consider the economic impact on the property owner, the
government's interference with the property owner's
investment backed interest, and the character of the
government action. Id.
the Supreme Court has staked out two narrow categories of
per se regulatory takings. Lingle, 544 U.S.
at 538. First, a per se regulatory taking occurs
where government action deprives a property owner of all
economically beneficial use of his property. Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1015-16 (1992). The
second category of per se regulatory takings occurs
if there has been a permanent physical invasion of private
property by the government. Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 435-40 (1982).
Within this category, a “physical” regulatory
taking also occurs when a government action secures an
exaction on private property for public access. Dolan v.
City of Tigard, 512 U.S. 374, 384-85 (1994); Nolan
v. Cal. Coastal Comm'n, 483 U.S. 825, 831-34 (1987)
(defining exactions as “commonplace conditions on
approval of development”). The Goodwins have alleged
that the County's Customary Use Ordinary is a per
se physical taking of their property.
a takings claim is raised as an “as-applied”
challenge. An as-applied claim considers “the
particular impact of government action on a specific piece of
property” and “requires the payment of just
compensation.” Keystone Bituminous Coal Ass'n
v. DeBenedictis, 480 U.S. 470, 494 (1987). This type of
as-applied challenge can only be brought after the plaintiff
has availed himself of all available state procedures for
seeking just compensation and been denied. See Williamson
Cty., 473 U.S. at 195 (“Williamson County
ripeness doctrine”). A plaintiff may also raise a
facial takings challenge to “the mere enactment”
of a statute or regulation when it constitutes a taking.
Id. Facial challenges to a statute or regulation
have been allowed both where the regulation denies all
economically viable use of land, and also where the
regulation has authorized a physical taking. See Hodel v.
Va. Surface Mining & Reclamation, 452 U.S. 264, 295
(1981) (quoting Agins v. City of Tiburon, 447 U.S.
255, 260 (1980) (citing Penn Central, 438 U.S. at
138 n.36)); Gulf Power Co. v. United States, 187
F.3d 1324, 1331 (11th Cir. 1999); see also Keystone
Bituminous, 480 U.S. at 495 (quoting Hodel);
Lucas, 505 U.S. at 1016 n.6 (quoting
Hodel). Because the facial takings challenge is a
narrow one, plaintiffs “face an uphill battle in
making a facial attack.” Hodel, 452 U.S. at
295. In this case, the Goodwins challenge the County's
Customary Use Ordinance on grounds that it constitutes a
permanent physical invasion of their private beach property.
In other words, they claim that the mere enactment of the
ordinance is a per se regulatory taking. The County
argues that the Goodwins' facial taking claim is not ripe
because a facial takings claim is subject to the
Williamson County ripeness doctrine, which requires
that a plaintiff have sought compensation through available
state procedures before raising a takings claims, which the
Goodwins have not done. The County also argues that even if
the ripeness doctrine does not apply to a facial challenge,
the Goodwins' claim is nonetheless ...