BREVARD COUNTY, FLORIDA vs WATERS MARK DEVELOPMENT ENTERPRISES, LC

• Court: District Court of Appeal of Florida
• Decided: September 9, 2022
• Docket: 21-1809
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

BREVARD COUNTY, FLORIDA,

Appellant, v. Case No. 5D21-1809 LT Case No. 05-2014-CA-41947

WATERS MARK DEVELOPMENT ENTERPRISES, LC,

Appellee.

________________________________/ Opinion filed September 9, 2022

Nonfinal Appeal from the Circuit Court for Brevard County, Curt Jacobus, Judge.

Dale A. Scott and Michael J. Roper, of Roper, P.A., Orlando, for Appellant.

John H. Pelzer, Richard A. Epstein, Jeffrey A. Backman and Roy Taub, of Greenspoon Marder, LLP, Fort Lauderdale, and Geoffrey A. Pette, of Pette, P.A., Fort Lauderdale, for Appellee.

NARDELLA, J.

This appeal involves a claim under the Bert J. Harris, Jr., Private

Property Rights Protection Act (“Bert Harris Act” or “Act”), section 70.001, Florida Statutes (2012). The Appellant, Brevard County (“County”), appeals

a summary judgment ruling for Appellee, Waters Mark Development

Enterprises, LC (“Waters Mark”) on the issue of liability under the Act.

Because the County came forward with sufficient evidence that Waters

Mark’s proposed development faced regulatory barriers, which, apart from

the County’s challenged action, could have barred the development, we

reverse the trial court’s entry of summary judgment for Waters Mark. The

County also appeals the denial of its competing motion for summary

judgment. The Court lacks jurisdiction over that ruling and, thus, we dismiss

that aspect of the appeal.

Undisputed Facts and Procedural History

In 2006, Waters Mark purchased land (“Property”) in Brevard County

with plans to develop a 90-unit residential subdivision covering

approximately 97 acres of the Property. At the time, the comprehensive

future land use plan (“comprehensive plan”) 1 permitted the building of one

residence per acre on the Property. Although Waters Mark’s proposed

1 A comprehensive plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. Citrus Cnty. v. Halls River Dev., Inc., 8 So. 3d 413, 420 (Fla. 5th DCA 2009). The plan is similar to a constitution for all future development within the governmental boundary. Id. at 420–21. The plan is implemented through zoning, which involves the exercise of discretionary powers within the limits imposed by the comprehensive plan. Id. at 421. 2 development complied with that aspect of the comprehensive plan, it still

needed to apply for and obtain approval from the County and other agencies

to proceed.

The St. Johns River Water Management District (“District”) was among

the governmental agencies whose approval Waters Mark needed to develop

a residential subdivision on the Property. After a year of back-and-forth

between the District and Waters Mark, it appears important issues remained

unresolved. For example, it appears Waters Mark had yet to demonstrate

that the development would not affect water quality or impact the surrounding

wetlands. Without curing the concerns raised by the District, Waters Mark’s

application with the District languished, leading it to inform Waters Mark that

its application would be deemed abandoned if it did not timely move forward

in the process. Eventually, Waters Mark abandoned its first attempt to

develop the Property.

More than a year after Waters Mark abandoned its first application, the

County adopted Ordinance 09-21 (“Ordinance”). The Ordinance amended

the comprehensive plan by lowering the developmental density for the

Property and surrounding land. The new developmental density allowed

only one residence per 2.5 acres.

3 Approximately three years after the Ordinance was adopted, Waters

Mark submitted a new application with the County for a similar subdivision.

Per the new application, Waters Mark sought to develop a similarly designed

84-unit residential subdivision covering approximately 97 acres of the

Property.

As part of the initial review of the second application, the County sent

Waters Mark a letter with several “pre-application review comments,”

including one that “disapproved” of the proposed development for exceeding

the new developmental density in the amended comprehensive plan

(“Comments Letter”). In apparent response to the Comments Letter and

without completing the other steps of the County’s application process,2

2 The application process for the construction of a residential subdivision in Brevard County consists of three stages: 1) the preapplication conference; 2) the construction plans and preliminary plat review; and 3) the final plat review. Brevard Cnty., Fla., Land Dev. Regul. (“LDR”) § 62- 2805(a)(1) (“The first stage is the preapplication conference. This stage is mandatory for the applicant, and allows the applicant to solicit comments from the reviewing agencies on the proposed subdivision prior to submittal and review of preliminary plat and construction plans.”); Id. at § 62- 2805(a)(2) (“The second stage is the construction plans and preliminary plat review. The applicant formally submits construction plans and preliminary plat for review and approval by the county reviewing agencies.”); Id. at § 62- 2805(a)(3) (“The third stage is final plat review. This stage follows construction plans and the preliminary plat review and is the final stage necessary before recording a plat. The applicant, after obtaining construction plans and preliminary plat approval, may receive final plat approval by the board.”). 4 Waters Mark discontinued its second effort to develop the Property and sent

a pre-suit notice to the County, claiming that its application of new density

requirements to Waters Mark’s second proposed development inordinately

burdened an existing use of the Property in violation of the Bert Harris Act.

Waters Mark filed suit. The County answered and asserted several

affirmative defenses, of which one is determinative in this interlocutory

appeal, namely, that regardless of the residential density allowed, Waters

Mark could not have developed its desired residential subdivision. This was

the issue at the heart of Waters Mark’s motion for summary judgment, with

each party offering evidence in support of its position. Without any mention

of the County’s responsive argument and the evidence on which it relied, the

trial court granted Waters Mark’s motion for summary judgment and denied

the County’s competing motion for summary judgment. This appeal

challenges both rulings.

The New Summary Judgment Standard

The Florida Supreme Court recently amended Florida Rule of Civil

Procedure 1.510 to conform with the federal summary judgment

standard. Fla. R. Civ. P. 1.510(a) (2021) (“The summary judgment standard

provided for in this rule shall be construed and applied in accordance with

the federal summary judgment standard.”).

5 Under the amended rule, which applies to the orders being appealed,

summary judgment is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Id. Looking to the federal summary judgment standard, an issue of fact is

“genuine” only if “a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is

“material” if the fact could affect the outcome of the lawsuit under the

governing law. Id.

The moving party bears the initial burden of identifying those portions

of the record demonstrating the lack of a genuinely disputed issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does

so, then the burden shifts to the non-moving party to demonstrate that there

are genuine factual disputes that preclude judgment as a matter of

law. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). To satisfy its

burden, the non-moving party “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To do so, the non-

moving party must go beyond the pleadings and “identify affirmative

evidence” that creates a genuine dispute of material fact. Crawford–El v.

Britton, 523 U.S. 574, 600 (1998).

6 In determining whether a genuine dispute of material fact exists, the

court must view the evidence and draw all factual inferences therefrom in a

light most favorable to the non-moving party and must resolve any

reasonable doubts in that party’s favor. Skop v. City of Atlanta, 485 F.3d

1130, 1136 (11th Cir. 2007). Summary judgment should only be granted

“[w]here the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party[.]” Matsushita, 475 U.S. at 587.

We review the order granting summary judgment and issues involving

statutory interpretation de novo. Dean Wish, LLC v. Lee Cnty., 326 So. 3d

840, 845 (Fla. 2d DCA 2021), review denied, No. SC21-1529, 2022 WL

852956 (Fla. Mar. 23, 2022).

Waters Mark’s Motion for Summary Judgment

The County argues that the trial court erred by granting summary

judgment in favor of Waters Mark because there is a genuine dispute of

material fact as to whether the application of the lower density limitation

inordinately burdened an existing use of the Property. 3 In order to analyze

3 The County raised other arguments challenging the order granting Waters Mark’s motion for summary judgment, but we need not address those arguments because, as discussed in this decision, there are genuine issues of material fact that preclude the entry of summary judgment in Waters Mark’s favor. 7 the County’s argument, we begin with the requirements of the Bert Harris

Act.

The Act provides a mechanism to compensate landowners whose

property is affected by government action not rising to the level of a taking.

§ 70.001(1), Fla. Stat. (2012).4 To prevail under the Act, a property owner

must prove that “a specific action of a governmental entity has inordinately

burdened an existing use of real property or a vested right to a specific use

of real property.” § 70.001(2), Fla. Stat. (2012).

An “existing use” is defined as “[a]ctivity or such reasonably

foreseeable, nonspeculative land uses which are suitable for the subject real

property . . . which have created an existing fair market value in the property

greater than the fair market value of the actual, present use or activity on the

real property.” § 70.001(3)(b)2., Fla. Stat. (2012). Here, the County agrees

that under the old comprehensive plan Waters Mark had the ability to build

one residence per acre and therefore had an “existing use” under the Act. 5

But a change in land use which impacts an “existing use” does not

necessarily equal an “inordinate burden.” Karenza Apartments, LLP v. City

The version of the Act in existence at the time of the Comments Letter 4

and pre-suit notice apply to this case. 5 Waters Mark does not argue that it had a vested right to a specific use of the Property. 8 of Miami, 47 Fla. L. Weekly D1497, D1498 (Fla. 3d DCA July 13, 2022)

(explaining that even if a landowner has an existing use under the Act the

trial court must examine and objectively analyze whether that landowner’s

investment-backed expectation for the property is objectively reasonable).

An inordinate burden is defined as “an action of one or more governmental

entities [that] has directly restricted or limited the use of real property such

that the property owner is permanently unable to attain the reasonable,

investment-backed expectation for the existing use of the real property . . . .”

§ 70.001(3)(e)1., Fla. Stat. (2012). This is akin to a causation requirement

that each landowner must prove to prevail. If Waters Mark could not have

developed the proposed residential subdivision for other reasons, then the

County did not cause an “inordinate burden.”

Relatedly, if Waters Mark could not have developed the proposed

residential subdivision for other reasons, then Waters Mark’s expectation to

the develop the Property was unreasonable. This is an objective test.

Karenza Apartments, LLP, 47 Fla. L. Weekly at D1498. Where unrelated

physical or regulatory barriers stand in the way of a landowner’s intended

development, it cannot be said that the landowner’s investment-backed

expectation is reasonable. Ocean Concrete, Inc. v. Indian River Cnty, Bd. of

Cnty. Comm’rs, 241 So. 3d 181, 189 (Fla 4th DCA 2018); see also City of

9 Jacksonville v. Coffield, 18 So. 3d 589, 599 (Fla. 1st DCA 2009); Palm Beach

Polo, Inc. v. Vill. of Wellington, 918 So. 2d 988, 995 (Fla. 4th DCA 2006).

With this in mind, we find that the trial court erred in granting summary

judgment for Waters Mark on the issue of liability. Summary judgment was

inappropriate on this record because the County presented evidence, which,

when viewed in the light most favorable to the County, could lead a rational

trier of fact to find against Waters Mark on the issue of inordinate burden.

Specifically, the County identified the Comments Letter it sent to Waters

Mark after the County completed its initial review of the second application.

The Comments Letter listed various problems, aside from the developmental

density, that apparently had to be addressed by Waters Mark before its

application could move onto the next stage of review.

Instead of attempting to address the identified problems, it appears,

from this record, that Waters Mark simply abandoned its application for a

second time. This is problematic because it leaves unanswered the question

of whether Waters Mark could ever obtain the approvals needed to proceed,

especially the approval of the District, which never consented to Waters

Mark’s earlier proposed development that complied with the comprehensive

plan in effect. As the County correctly argues, considering the regulatory

history between Waters Mark and the District, it cannot be assumed that the

10 District would have permitted the development. When the litany of issues

listed in the Comments Letter are viewed in a light most favorable to the

County, we find there is a genuine dispute of material fact as to whether other

regulatory barriers, apart from the new density requirements, prevented the

Property from being developed as intended.

Waters Mark attempts to avoid this result by arguing that the Act does

not require a proposed use of the Property to be otherwise fully approved

and shovel ready. But Waters Mark’s argument ignores the fact that it was

not even that close. On this record, Waters Mark was at the beginning of a

multistage application process that it previously failed to complete with

questions remaining as to whether it would obtain the approval of other

agencies, including the District, which withheld its consent in the past.

Because the County came forward with sufficient evidence to create a

genuine issue of material fact that Waters Mark’s proposed development

faced unrelated regulatory barriers, which alone could have barred the

development, summary judgment for Waters Mark was error on this record

and we reverse.

11 The County’s Motion for Summary Judgment

The County also appeals the trial court’s denial of its motion for

summary judgment, which is not presently appealable.

“As a general rule, a party may not seek interlocutory review by appeal

of a nonfinal order, including an order denying a motion for summary

judgment.” Miami-Dade Cnty. v. Pozos, 242 So. 3d 1152, 1153 (Fla. 3d DCA

2017). An exception exists for specific nonfinal orders listed and described

in Florida Rule of Appellate Procedure 9.130, among which are nonfinal

orders determining “that a governmental entity has taken action that has

inordinately burdened real property within the meaning of section

70.001(6)(a), Florida Statutes.” Fla. R. App. P. 9.130(a)(3)(C)(vii).

While the order granting Waters Mark summary judgment made such

a determination, the same cannot be said for the trial court’s denial of the

County’s competing motion. By denying the County’s competing motion, the

trial court declined to make such a determination. To read Rule

9.130(a)(3)(C)(vii) as authorizing the appeal of a denial of a motion for

summary judgment would require this Court to replace the word “that” with

“whether.” Because the exception carved out by Rule 9.130(a)(3)(C)(vii)

authorizes only a nonfinal appeal of an order determining “that a

governmental entity has taken action that has inordinately burdened real

12 property . . .,” we lack jurisdiction to review the denial of the County’s motion

for summary judgment. Fla. R. App. P. 9.130(a)(3)(C)(vii) (emphasis added).

As a result, we express no view on the arguments raised in the County’s

motion for summary judgment and dismiss that aspect of the County’s appeal

for want of jurisdiction.

In sum, the County came forward with sufficient evidence that Waters

Mark’s proposed development faced regulatory barriers, unrelated to the

application of the Ordinance, which created a genuine issue of material fact

as to whether the development could proceed as planned. As such,

summary judgment for Waters Mark was error on this record.

DISMISSED in part; REVERSED in part; and REMANDED for further proceedings.

LAMBERT, C.J., and WALLIS, J., concur.