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Golfrock LLC v. Lee County

Florida Court of Appeals, Second District

May 2, 2018

GOLFROCK, LLC, a Florida limited liability company, Appellant,
v.
LEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Appellee.

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

          Gregory S. Rix and S. William Moore of Moore Bowman & Rix, P.A., Tampa, for Appellant.

          Jay J. Bartlett and Jeffrey L. Hinds of Smolker, Bartlett, Loeb, Hinds & Sheppard, P.A., Tampa, and Richard Wm. Wesch, County Attorney, Fort Myers, for Appellee.

          Mark Miller and Christina M. Martin, Palm Beach Gardens, for Amicus Curiae Pacific Legal Foundation.

          BY ORDER OF THE COURT:

         Appellant's motion rehearing en banc is denied. The court's opinion filed July 7, 2017, is withdrawn sua sponte, and the following opinion is substituted for clarification. No further motions for rehearing will be entertained.

         Appellant, GolfRock, LLC, submitted an application to Appellee, Lee County, seeking to change the zoning of a parcel of land. Complete details of what transpired in the application process are not pertinent to our disposition of this appeal. It suffices to say that Lee County amended its comprehensive plan and asked GolfRock to withdraw its application. GolfRock did not withdraw the application; however, Lee County has deemed it withdrawn so no rezoning application is presently pending.

         After being asked to withdraw its application for rezoning, GolfRock filed an action for declaratory judgment against Lee County. The complaint alleged that "[i]n order to assert its private property rights under Article X, Section 6(a) of the Florida Constitution . . . or under the statutory protection of Section 70.001, Florida Statutes . . ., the 'Bert J. Harris, Jr., Private Property Rights Protection Act, ' GolfRock is required to 'ripen' its claim . . . ." GolfRock asked the trial court to "enter a Declaratory Judgment finding that any continuation of the current zoning request is futile as a matter of law and that any claims for remedy for the injury to GolfRock's private property rights under the constitution or laws of Florida are ripe for adjudication."

          KELLY, Judge.

         Initially, Lee County moved to dismiss the complaint on several grounds. Among them, Lee County argued that the complaint failed to state a claim for declaratory relief. The trial court denied the motion and the case proceeded. Eventually, the parties filed cross-motions for summary judgment on the issue of ripeness. GolfRock's motion asked the trial court to find that "under the futility exception to the ripeness doctrine, any claim by GolfRock for a regulatory partial taking is now ripe for adjudication." Lee County argued that regardless of which type of takings claim GolfRock might eventually pursue, its claims were not ripe and the futility exception to the ripeness doctrine did not apply. The trial court agreed that GolfRock had not established its claim was ripe nor had it established "the applicability of the futility exception[]." It entered summary judgment in favor of Lee County.

         In this appeal GolfRock challenges that determination. We need not reach the merits of that issue, however, because we conclude GolfRock's complaint did not state a cause of action for declaratory relief. As a result, the trial court lacked jurisdiction and it should have dismissed the complaint.

         To state a claim for declaratory relief, the party seeking the declaration must show that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed. May v. Holley, 59 So.2d 636, 638-39 (Fla. 1952); see also § 86.011, Fla. Stat. (2013). GolfRock's complaint does not allege GolfRock is in doubt as to the existence or nonexistence of any immunity, power, privilege, status, or right. The only mention of rights anywhere in the complaint is GolfRock's assertion that it has private property rights, the existence of which is unquestioned.

         GolfRock's complaint explains that to pursue a takings claim for any injury to its property rights occasioned by how Lee County handled its zoning application, it must have a final denial of the application. It alleges it would be "prohibitively expensive" to pursue the application further, however, and that its denial is a "fait accompli." It points to the fact that Lee County's comprehensive plan, as amended while GolfRock's application was pending, no longer permits the planned use of its property. Accordingly, it asks the court to declare that its claim is ripe and that "any continuation of the current zoning request is futile as a matter of law."

          Ripeness in the context of a regulatory takings claim is a prudential principle adopted by the Supreme Court that requires a plaintiff to "demonstrate that [he] has both received a 'final decision regarding the application of the [challenged] regulations to the property at issue' . . . and sought 'compensation through the procedures the State has provided for doing so.' " Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733-34 (1997) (quoting Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194 (1985)). "Florida courts have adopted the federal ripeness policy of requiring a 'final determination from the government as to the permissible uses of the property.' " Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1173 (Fla. ...


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