Bradfordville Phipps Ltd. v. Leon County

804 So. 2d 464, 2001 Fla. App. LEXIS 16608, 2001 WL 1485637
CourtDistrict Court of Appeal of Florida
DecidedNovember 26, 2001
Docket1D01-541
StatusPublished
Cited by4 cases

This text of 804 So. 2d 464 (Bradfordville Phipps Ltd. v. Leon County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradfordville Phipps Ltd. v. Leon County, 804 So. 2d 464, 2001 Fla. App. LEXIS 16608, 2001 WL 1485637 (Fla. Ct. App. 2001).

Opinion

804 So.2d 464 (2001)

BRADFORDVILLE PHIPPS LIMITED PARTNERSHIP, Appellant,
v.
LEON COUNTY, Florida, Appellee.

No. 1D01-541.

District Court of Appeal of Florida, First District.

November 26, 2001.
Rehearing Denied January 7, 2002.

*465 Carl R. Pennington, Jr., and John C. Pelham of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellant.

Herbert W.A. Thiele, County Attorney, and Theresa R. Thompson, Assistant County Attorney, Tallahassee, and Robert H. Freilich, Kansas City, Missouri, for Appellee.

KAHN, J.

Appellant, Bradfordville Phipps Limited Partnership (Partnership), challenges an order rendered by the Second Judicial Circuit Court denying its motion for summary judgment and granting summary judgment in favor of Appellee, Leon County (County). The Partnership, which owns property in a part of Leon County known as the Bradfordville Study Area (BSA), had filed an inverse condemnation action against the County following the imposition of a temporary injunction that prohibited the County from issuing certain permits for development in the BSA. We affirm.

I.

The record reveals that effective December 3, 1998, the circuit court imposed an injunction in another proceeding, prohibiting the County "from issuing any future building permits or other development permits authorizing construction within the Bradfordville Study Area until such time as the County comes into compliance *466 with 8.1, 8.3, 8.3.1 and 8.5.2 of the Land Use Element of the Tallahassee/Leon County Comprehensive Plan." Land Use Goal 8 concerned the development and implementation of a comprehensive stormwater plan for the BSA. On January 12, 1999, the plaintiffs in the other proceeding and the County entered an interim settlement agreement, pursuant to which the County agreed not to appeal the injunction order. The next day, the court entered another order, amending the injunction order to exclude from its scope certain property and projects.

On April 5, 1999, the Partnership brought this action against the County. In the complaint, the Partnership alleged, among other things, that the County's actions "resulted in the [Partnership's] inability to move forward with the development and use of its property and has deprived the [Partnership] of all reasonable economic use of its property." The Partnership alleged that it "has expended substantial efforts and substantial sums of money and has incurred great expense in pursuing its plan of development" of the property. The Partnership further alleged that, in December 1998, it had submitted "a completed Environmental Permit application relating to the development of its project," but this application was rejected by the County due to the injunction. The Partnership alleged that this permit application was a prerequisite to the issuance of any building permit and "[t]he denial of the application for such permit prohibits [the Partnership] from proceeding with the development of its property." The complaint summarized the Partnership's basis for a claim of inverse condemnation:

The acts and omissions of the County as alleged herein, including: (a) agreeing to the entry of an Order enjoining the County from issuing any further permits for development; and (b) agreeing not to appeal any order which may be entered enjoining issuance of permits for the development of the subject property, constitute a substantial deprivation of the beneficial use of the Plaintiff's property rights and constitutes a taking of Plaintiffs property for a public purpose without payment or compensation.

On December 14, 1999, as part of its effort to comply with the injunction and the Comprehensive Plan, the County adopted Ordinance No. 99-31, an Interim Development Ordinance (IDO). Pursuant to the IDO, the County restricted the issuance of development permits for land in the BSA:

1. Development Permits. Notwithstanding any provision of the Land Development Regulations to the contrary, no development permit shall be issued and no Application For Land Use Approval shall be approved in the Bradfordville Study Area during the term of this Ordinance, except as provided in paragraph 4, below.
* * *
4. Type of Uses and Development Permits Affected. This Ordinance shall apply, as and to the extent set forth herein, to all applications for land use approval submitted after the Effective Date of this Ordinance not otherwise excepted by the Court Orders being the Injunction Order dated December 15, 1998, the Interim Settlement Agreement of January 12, 1999, and the modified Injunction Order dated January 13, 1999.

The IDO also listed several "Types of Uses and Development Permits Not Affected." The term of the IDO was limited to seven months, unless extended by a majority vote of the Board of County Commissioners.

*467 On July 11, 2000, the County adopted Ordinance No. 00-31. This ordinance implemented the provisions of Land Use Goal 8 of the Comprehensive Plan and evidently constituted the requisite action to comply with the court-ordered injunction. By order dated October 23, 2000, the circuit court dissolved the injunction.

On October 5, 2000, the Partnership and the County each filed motions for summary judgment. By an order rendered December 4, 2000, the circuit court granted the County's motion and denied the Partnership's motion, and entered final summary judgment in favor of the County. In the order, the trial judge found, "[W]hile I can understand the Plaintiff's frustrations with the financial burden imposed upon it by the actions and inactions of the County, I find that under the undisputed facts of this case, it does not amount to a `taking', entitling Plaintiff to the relief sought." In particular, the judge determined that "the facts show as a matter of law that the Plaintiff has not met [the] ripeness test." The court found that the Partnership "made no effort to intervene in the [other] suit ... and challenge the injunction, to seek to have itself excepted from its provisions, or to have it modified so as to allow acceptable economically viable uses." The court also made the following findings:

The Plaintiff says that the use of the property for residential development, in light of its location at the intersection of two major roads, and in light of the purchase price of the property and the cost of development, would not make sense financially. No one would buy residential lots in this location at the prices Plaintiff would have to charge in order to achieve any kind of return on its investment. I cannot disagree with the logic of that argument, but that is not the test. Unfortunately for the Plaintiff, the owner is not protected from regulations that reduce or eliminate the profit that might be realized from land so long as there is some use of the property that economically can be executed. And, as noted above, in addition to possible residential use, other property in the area had been exempted for use as a fire station, a church, and a school. In short, because the Plaintiff has not tested the regulation and gotten a final authoritative decision as to the extent of the regulation on the use of its property, the issue of a taking is not ripe for adjudication.

The court further found that, even assuming the Partnership had satisfied the ripeness test, "it still cannot establish, on the undisputed facts, that a taking has occurred by virtue of the injunction and the subsequent interim ordinance." In this regard, the court made the following findings:

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804 So. 2d 464, 2001 Fla. App. LEXIS 16608, 2001 WL 1485637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradfordville-phipps-ltd-v-leon-county-fladistctapp-2001.