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Goodwin v. Walton County Florida

United States District Court, N.D. Florida, Pensacola Division

March 31, 2017

EDWARD GOODWIN, DELANIE GOODWIN, Plaintiffs,
v.
WALTON COUNTY FLORIDA, Defendant.

          ORDER

          M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE

         This is 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.

         I. Background

         In 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 extended.

         On 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.

         On 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 facial challenge.

         II. Motion to Dismiss

         A. Standard of Review

         Federal 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) (per curiam).

         B. Discussion

         The 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.”).

         The 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.[1] Id.

         Additionally, 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.

         Ordinarily, 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 ...


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