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.
Bartlett and Jeffrey L. Hinds of Smolker, Bartlett, Loeb,
Hinds & Sheppard, P.A., Tampa, and Richard Wm. Wesch,
County Attorney, Fort Myers, for Appellee.
Miller and Christina M. Martin, Palm Beach Gardens, for
Amicus Curiae Pacific Legal Foundation.
ORDER OF THE COURT:
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filed July 7, 2017, is withdrawn sua sponte, and the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.
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deemed it withdrawn so no rezoning application is presently
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."
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.
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.
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
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. ...