5D05-2935 Brevard Co. v. Stack

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2935

Case Date: 07/10/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2006

BREVARD COUNTY, FLORIDA, Appellant, v. CHARLES R. STACK, TRUSTEE etc., Appellee. _________________________________________/ Opinion filed July 14, 2006 Non Final Appeal from the Circuit Court for Brevard County, George W. Maxwell III, Judge. Scott L. Knox, County Attorney, of the Office of County Attorney, Viera, for Appellant. Lauri Waldman Ross, of Lauri Waldman Ross, P.A., Miami, and Phillip A. Hubbart of Wetherington, Klein & Hubbart, Miami, for Appellee. Steven Geoffrey Gieseler and Valerie A. Fernandez of Pacific Legal Foundation, Coral Gables, Amicus Curiae. Case No. 5D05-2935

SHARP, W., Senior Judge. Brevard County (the County) appeals a non-final order, 1 which granted partial summary judgment in favor of the appellees, 2 after they brought suit against the County under the Bert J. Harris, Jr. Act (the Act), section 70.001, Florida Statutes (2004). The order determined the issue of liability in favor of appellees, and reserved the issue of damages for a subsequent trial. In this appeal, the County argues that the Act is unconstitutional, and that the trial court failed to make findings required by the Act. We affirm in part, reverse in part and remand to the trial court. The facts of this case are not in dispute. Appellees purchased two adjoining parcels of land for investment purposes in 1984 and 1987. The parcels consist of over four acres, and are located near the northwest corner of Wickham Road and Interlachen Road (the Property). In the center of the Property is a wetlands area of about one acre. The zoning for these parcels was designated BU-1, a general retail commercial zoning classification, under the Brevard County Zoning Regulations at the time it was purchased. Since August 2001, it has been designated "community commercial" on the Future Land Use Map. In September of 2000, the County adopted section 62-3691, et. seq., of the Brevard County Code, known as the "Brevard County Wetlands Protection Act" (the

See Fla. R. App. P. 9.130(a)(3)(C)(viii). Rule 9.130(a)(3)(C)(iii) was added to make rule 9.130 consistent with section 70.001(6)(a), which permits a governmental entity to take an interlocutory appeal of a determination that a government action has resulted in an inordinate burden. Amendments to the Rules of Appellate Procedure, 894 So. 2d 202 (Fla. 2005). Charles Stack (Stack) is the Trustee of an investment group (the Group), which includes Michelle Headley, Eugene Kubicki, Harold Barkas and himself.
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Ordinance). Subsection 62-3694(c)(2) of the Ordinance provides that, with certain exceptions, commercial land development activities are prohibited in wetlands contained in properties designated on the Future Land Use Map as commercial after February 23, 1996. On March 17, 2003, appellees and Douglas Development Group, Inc. (Douglas) executed a contract for sale of the Property for $1.1 million. Douglas intended to

develop the Property as a 10,000 square foot shopping plaza and a 6,000 square foot restaurant, with 170 parking spaces, 35 of which were to be located in the wetlands area in the center of the Property, and required the destruction of that wetlands area. Douglas had 90 days to investigate the permitted uses of the Property and cancel the contract. Douglas' proposed site plan was in conformity with all County zoning and development requirements, except for the Ordinance. Douglas intended to mitigate the wetlands offsite, and received approval to do so from the St. John's Water Management District. Douglas then sought approval of its site plan by the County, based on an exception listed in the Ordinance. However, the County Office of Resource Management advised Douglas that the wetlands area could not be impacted by the proposed development, and any type of wetlands listed in section 62-3694(c)(3) of the Ordinance would require a natural, native upland buffer with wetlands ranging from fifteen to fifty feet, depending on the type of wetland. As a result Douglas cancelled the contract. Appellees submitted a Notice of Claim for $760,000 to the County for reduction in value of the Property pursuant to section 70.001(4) of the Act. The claim was later

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increased to $1 million. The County responded to appellees' Notice of Claim with a "ripening decision" i.e., an alternative layout plan prepared by County staff. The County's plan reflected the same intensity of commercial development as that proposed by Douglas, but reduced the number of parking spaces from 170 to 102. It also required construction of a bridge across the wetlands area for passage from the eastern portion of the Property to the western portion (one parcel to the other), to facilitate access to the Property. Other waivers and modifications, including buffering and grading requirements, and allowing the use of a portion of the wetlands for storm water management, were included in the County's plan, which the County approved. Appellees obtained a certified appraisal which indicated that prior to enactment of the Ordinance, the Property consisted of 142,006 square feet of buildable land, with a value of $1.7 million.3 After enactment of the Ordinance, the property consisted of only 98,446 square feet of buildable land, with a value of $700,000;4 a loss of $1 million. The appraiser found that the County's plan did not cure the problems created by the Ordinance, and that the diminution of value remained the same, because the plan required that the Property be bisected, it did not provide for sufficient parking, and it made no provision for a traffic signal. All of these factors made the Property less attractive to a developer. Appellees filed suit under the Act and eventually filed a motion for partial summary judgment on the issue of liability, in which they asserted that they had preexisting property rights and "reasonable investment backed expectations" at the time
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That is, 142,006 square feet x $12.00 a square foot = $1,704,072.

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they purchased the Property. They argued that the Property had suffered a significant diminution in value due to the Ordinance, and that the Ordinance, as applied, denied them their rights under the Act, including the ability to develop over the wetlands and mitigate at an off-site location. The circuit court agreed and entered the order from which the County appeals. On appeal, the County argues that the Act is unconstitutional for a variety of reasons. First, it submits that the Act authorizes local governments to contract away their inherent sovereign police powers, and requires them to buy-back their ability to exercise those powers, both of which violate the due process clause. We view the Act in a different light. In the Act, the Legislature expressed its recognition that in some instances, laws, regulations, and ordinances of the state and its political subdivisions, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking.

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