Decker v. Citrus County
Filing
32
ORDER: Defendant Citrus County's Motion to Dismiss Plaintiff's First Amended Complaint ( 27 is GRANTED in part and DENIED in part. Count III is DISMISSED without prejudice. Count IV is abated until Plaintiff's claim for inverse condemnation has been fully adjudicated. Count VI is DISMISSED in part. Count IX is DISMISSED without prejudice. Within fourteen (14) days of the date of this Order, Plaintiff may file a second amended complaint correcting the deficiencies noted above. Signed by Judge James S. Moody, Jr on 11/10/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GEORGE H. DECKER,
Plaintiff/Petitioner,
v.
Case No: 5:15-cv-24-Oc-30PRL
CITRUS COUNTY, a political
Subdivision of the State of Florida,
Defendant/Respondent.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendant Citrus County’s (the
“County”) Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 27) and
Plaintiff’s response in opposition thereto (Doc. 30). The Court having reviewed the motion
and response, and being otherwise fully advised in the premises, concludes that the
County’s motion should be granted in part and denied in part.
BACKGROUND 1
In 2003, Plaintiff George Decker began to acquire a property known as Pirate’s
Cove located in the Ozello community of Citrus County, Florida. By January 2012,
Plaintiff acquired all 3.6 acres comprising the Pirate’s Cove property. Pirate’s Cove is
1
In considering a motion to dismiss, a court must accept the factual allegations of the complaint as
true and evaluate all inferences derived from those facts in the light most favorable to the plaintiff. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, these facts were gleaned from Plaintiff’s first
amended complaint (Doc. 24) and the exhibits attached to Plaintiff’s original complaint and incorporated
by reference into the first amended complaint, and they do not constitute findings of fact.
mostly vacant, but beginning in 2011, Plaintiff took steps to start development of the
property.
Plaintiff desired to develop a resort condominium on Pirate’s Cove with
approximately thirty units that would permit occupancies of 180 days or less. To achieve
this end, Plaintiff began drafting a request to negotiate a development agreement pursuant
to Florida Statutes §§ 163.3221-.3243 and § 78.83 of the Citrus County Land Development
Code. 2 Plaintiff filed a request to negotiate a development agreement with the County on
January 27, 2012, and he submitted an initial executive summary of a planning review to
the County describing the development as a “resort condominium” with occupancies
“presently expected to be approximately six months.” 3 (Doc. 1, Exs. D, F at 5). The Citrus
County Board of County Commissioners (the “Board”) approved the request on February
14, 2012. (Doc. 1, Exs. D, E).
On December 27, 2012, Plaintiff submitted an application for approval of a
development agreement to the County, which attached condominium documents
describing the intended 185-day-maximum occupancy of the development. 4 (Doc. 1, Ex.
I at 43). Plaintiff provided the final planning review to the County in July 2013, which
also described the project as a “33 [unit] resort condominium [which] will be owned by
individual owners who may use those units up to approximately 185 days per year. For
2
The Citrus County Land Development Code was subsequently rewritten and the applicable
provision—former § 78.83—was encapsulated in Chapter 12 of the revised code.
3
On October 5, 2012, Plaintiff submitted a revised initial executive summary of the planning
review, which also described the intended occupancies as six months. (Doc. 1, Ex. G at 5).
4
Prior to submitting the application, Plaintiff held various neighborhood meetings and
pre-application meetings with County staff regarding the project.
2
the remaining approximately 180 days of the year the unit must be in the rental pool.”
(Doc. 1, Ex. W).
At the application review meeting on August 15, 2013, County staff expressed to
Plaintiff, for the first time, that the concept of a resort condominium with occupancies in
the 180-day range was prohibited based upon a reading of the Florida Building Code
(“FBC”) and the Citrus County Comprehensive Plan (the “Comprehensive Plan”). County
staff also informed Plaintiff at this meeting that the County would be unable to fulfill its
obligations under the proposed development agreement.
On January 24, 2014, Plaintiff met with County staff to further discuss the rationale
behind their determination that the occupancies must be limited to thirty days because,
according to Plaintiff, this interpretation rendered the project infeasible. County staff
explained during the meeting that their interpretation was based upon a change to the FBC
defining the term “transient,” which County staff opined was automatically incorporated
into the Comprehensive Plan. After the meeting, Plaintiff made a formal request for the
County to make a determination regarding the permitted occupancy at Pirate’s Cove. (Doc.
1, Ex. K at 20-25). The County provided a written determination on May 13, 2014,
concluding that the occupancies at Pirate’s Cove would have to be limited to thirty days.
(Doc.1, Ex. K at 28-30).
The written determination discussed policy 4.10.10 of the Comprehensive Plan,
which provides, in pertinent part:
New construction or expansion of the following residential occupancy uses
are allowed within the Coastal High Hazard Area:
3
R1: Residential occupancies where the occupants are primarily transient in
nature, including: Boarding housing (transient), hotels, and motels.
(Doc. 1, Ex. K at 29) (emphasis added). The 2004 version of the FBC did not contain a
definition of the term “transient.” However, the FBC was amended so that the 2010 version
defined the term transient as “[o]ccupancy of a dwelling unit or sleeping unit for not more
than 30 days.” (Id.). County staff opined that the Comprehensive Plan incorporated the
FBC definition of “transient” by reference. (Doc. 1, Ex. K at 30). Thus, County staff
concluded that pursuant to the FBC amendment the occupancies at Pirate’s Cove could not
exceed thirty days. (Doc. 1, Ex. K). Plaintiff appealed the decision to the Board, and
ultimately prevailed on appeal.
Because the County could not fulfill its obligations pursuant to the development
agreement, Plaintiff withdrew the application for the development agreement and instead
decided to pursue approval of a planned unit development (“PUD”) for Pirate’s Cove.
Plaintiff also submitted an application for amendments to the Generalized Future Land Use
Map and the Zoning Atlas. While the amendment application was pending, Plaintiff’s
architect engaged in conversation with County staff regarding the yield of the proposed
development based on the permitted floor area ratio (“FAR”).
The FAR is determined by dividing the gross floor area of a building by the area of
the lot on which it is located. (Doc. 24 at 15 n.3). Gross floor area was previously defined:
The sum of the gross horizontal areas of the several floors of a building
measured from the exterior face of exterior walls or from the centerline of a
wall separating two buildings, but not including interior parking spaces,
loading space for motor vehicles, or any space where the floor-to-ceiling
height is less than six feet.
4
(Doc. 1, Ex. M at 1). In 2012, however, the County amended the definition of gross floor
area via Ordinance 2012-06, which provides:
The floor area within the inside perimeter of the exterior walls of the building
under consideration, exclusive of vent shafts and courts, without deduction
for corridors, stairways, closets, the thickness of interior walls, columns, or
other features. The floor area of a building, or portion thereof, not provided
with surrounding exterior walls shall be the usable area under the horizontal
projection of the roof or floor above. The gross floor area shall not include
shafts with no openings or interior courts.
(Doc. 1, Ex. M at 1-2).
One County staff member opined that under the revised definition of gross floor
area, the ground floor of the building, which would contain an open parking area, was not
included in the calculation. A second County staff member disagreed, however, stating
that the open parking area under the building must be included in calculating the gross floor
area pursuant to the revised definition. According to Plaintiff, a FAR calculation that
included the open, ground-floor parking lot in the gross floor area would reduce the yield
of the Pirate’s Cove project by twenty-five percent.
Plaintiff’s land use planning consultant challenged the interpretation of gross floor
area as including the ground floor and also opined that, alternatively, the project should be
evaluated based on the previous definition of gross floor area which was in effect when the
first application for approval of the development was submitted. (Doc. 1, Ex. M). County
staff agreed that Plaintiff’s original application was vested under the previous definition of
gross floor area, but, according to Plaintiff, County staff implied that any new application
might be subject to the current definition of gross floor area, which would include the
ground floor in the gross-floor-area calculation. (Doc. 1, Ex. N).
5
Despite these apparent disagreements with County staff, Plaintiff submitted the
application for approval of the PUD as an addition to his pending application for
amendments to the Generalized Future Land Use Map and the Zoning Atlas on August 13,
2014. The applications were heard by the Planning Commission on October 2, 2014, and
by the Board on December 16, 2014. (Doc. 1, Ex. U). Both the Planning Commission and
the Board denied the applications. (Doc. 1, Ex. U at 132; Ex. V at 146-47).
On January 15, 2015, Plaintiff initiated this action by filing a complaint raising
various state and federal law claims against the County arising from disagreements
between Plaintiff and the County during Plaintiff’s pursuit to develop Pirate’s Cove as a
resort condominium. The County filed a motion seeking a more definite statement of
Plaintiff’s complaint, or, alternatively, seeking dismissal of Plaintiff’s complaint. (Doc.
9). The Court granted in part and denied in part the County’s motion, dismissing with
prejudice several counts of the complaint but allowing Plaintiff an opportunity to amend
his claim for denial of equal protection (Count III). (Doc. 20). Plaintiff’s claims for
declaratory judgment (Count VI) and for certiorari review of the County’s decision denying
his PUD application (Count VIII) were permitted to proceed as pled. (Id.).
Plaintiff then filed a motion seeking partial reconsideration of dismissal of his
temporary takings claim (Count IV) and requesting permission to add a claim for state-law
inverse condemnation to his complaint to be pled as a prerequisite to his takings claim.
(Doc. 21). The Court granted Plaintiff’s motion. (Doc. 23). Consequently, Plaintiff added
a state-law claim for inverse condemnation to his first amended complaint and also asserted
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a claim, in the event his inverse condemnation claim was unsuccessful, for a temporary
taking under the Fifth Amendment. (Doc. 24).
The County again moves for dismissal of Plaintiff’s claims under Federal Rule of
Civil Procedure 12(b)(6). (Doc. 27).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed
for failure to state a claim upon which relief can be granted. In considering a motion to
dismiss under Rule 12(b)(6), a court must accept the factual allegations of the complaint
as true and evaluate all inferences derived from those facts in the light most favorable to
the plaintiff. See Erickson, 551 U.S. at 94. Conclusory allegations, unwarranted factual
deductions, or legal conclusions masquerading as facts, however, are not entitled to the
assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Davila v. Delta Air
Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
ANALYSIS
1. Denial of Equal Protection under the Fifth and Fourteenth Amendments (Count
III)
Plaintiff asserts an equal protection claim based on the differential treatment of
Pirate Cove’s from that of comparators Margueritagrill and Riverside Resort. (Doc. 24 at
19-21).
Specifically, Plaintiff alleges that Pirate’s Cove was subjected to rigorous
enforcement of County rules, ordinances, regulations, and policies, while the comparators
were not subjected to similarly rigorous enforcement.
(Id.).
The Court previously
dismissed this claim without prejudice because Plaintiff failed to allege facts demonstrating
7
that the comparators were similarly situated. (Doc. 20 at 11). The County contends that
Plaintiff has not remedied this deficiency in that Plaintiff has only alleged facts showing
that Plaintiff was treated differently than the comparators, not that the comparators were
similarly situated. (Doc. 27 at 3-5).
The Equal Protection Clause provides that “[n]o State shall make or enforce any law
which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const., amend. XIV, § 1. The Supreme Court has “recognized successful equal
protection claims brought by a ‘class of one,’ where the plaintiff alleges that [he or] she
has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000). “To prove a ‘class of one’ claim, the plaintiff must show (1) that he [or
she] was treated differently from other similarly situated individuals, and (2) that the
defendant unequally applied a facially neutral ordinance for the purpose of discriminating
against him [or her].” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301,
1307 (11th Cir. 2009).
In establishing that he or she was treated differently from similarly situated
individuals, a plaintiff generally must identify comparators. See Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1202-07 (11th Cir. 2007); see also Crystal Dunes Owners Ass’n Inc.
v. City of Destin, 476 F. App’x 180, 184-85 (11th Cir. 2012). Moreover, the “showing that
two projects were similarly situated requires some specificity,” Campbell v. Rainbow City,
434 F.3d 1306, 1314 (11th Cir. 2006), which means that the projects being compared “must
be prima facie identical in all relevant respects.” Racine Charter One, Inc. v. Racine
8
Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005) (internal quotation marks omitted).
“A ‘class of one’ plaintiff might fail to state a claim by omitting key factual details in
alleging that it is ‘similarly situated’ to another.” Griffin Indus., Inc., 496 F.3d at 1205;
see also Apothecary Dev. Corp. v. City of Marco Island, 517 F. App’x 890, 892 (11th Cir.
2013).
Plaintiff asserts that Margueritagrill and Riverside Resort are similarly situated to
Pirate’s Cove because, like Pirate’s Cove, both properties are commercial waterfront
properties with uses that are considered to be “water dependent.” (Doc. 24 at 19-20). In
supporting his position that the allegations of his first amended complaint sufficiently
demonstrate that his property was similarly situated to that of the comparators, Plaintiff
relies on the Eleventh Circuit’s decision in Executive 100, Inc. v. Martin County, 922 F.2d
1536, 1541 (11th Cir. 1999).
In Executive 100, the Eleventh Circuit upheld equal
protection claims asserted by two plaintiffs who owned parcels of land located along a
newly constructed segment of Interstate 95. Id. at 1538. The plaintiffs applied to the
county to change the zoning designation of their parcels from agricultural/rural ranchette
to industrial, and the county denied their applications. Around the same time, however,
the county granted two other applications to amend the zoning designation on parcels also
located along Interstate 95. Id. With no discussion of the similarly-situated requirement,
the Eleventh Circuit concluded that the plaintiffs stated viable claims for violation of equal
protection. Id. at 1541.
Plaintiff’s reliance on Executive 100 is misplaced. As a preliminary matter, the
court in Executive 100 did not directly address the question of whether the plaintiffs
9
sufficiently alleged that the comparators were similarly situated.
Nevertheless, the
Executive 100 plaintiffs’ situation is distinguishable from Plaintiff’s situation. In Executive
100, the allegations demonstrating the similarities between plaintiffs and the identified
comparators did not require greater factual detail because, for the most part, the decision
of the county was one-dimensional, and did not involve consideration of a variety of
factors.
In the present case, however, the County’s decision was “undeniably
multi-dimensional, involving varied decisionmaking criteria applied in a series of
discretionary decisions made over an extended period of time.” Griffin Indus., Inc., 496
F.3d at 1203. In pleading a “class of one” equal protection claim, a challenged decision
that is multidimensional necessitates a greater level of factual detail so that the court can
determine whether the governmental action was the result of discrimination. Id. at 1205.
Thus, when a decision is multi-dimensional, it is more onerous to establish that a
comparator is similarly situated. Id. (“[W]hen plaintiffs in ‘class of one’ cases challenge
the outcome of complex, multi-factored government decision-making processes, similarly
situated entities must be very similar indeed.” (internal quotation marks omitted)).
Plaintiff also directs the Court’s attention to Bloomingdale Development, LLC v.
Hernando County, No. 8:07-CV-575-T-30MAP, 2009 WL 347786 (M.D. Fla. Feb. 11,
2009), and emphasizes that the equal protection claim in that case was permitted to proceed
past summary judgment on allegations less complete than those asserted by Plaintiff. (Doc.
30 at 7-8). The Court disagrees. In Bloomingdale Development, plaintiff filed an equal
protection claim alleging that the county treated two phases of the same project differently
10
by granting an exception as to one phase of the project but denying it as to the other.
Bloomingdale Development, 2009 WL 347786, at *1-5. The plaintiff alleged that the two
phases were adjoining parcels, located in the same subdivision, part of the same master
plan, in the same phase of development, sought the same relief, and were subject to the
same or similar governmental decisionmaking process. Id. at *10. The court concluded
that the plaintiff sufficiently alleged that the two phases were similarly situated such that
the equal protection claim stated a genuine issue of material fact and survived defendant’s
motion for summary judgment. Id.
The allegations in Bloomingdale Development are significantly more detailed than
Plaintiff’s. Plaintiff’s first amended complaint is practically devoid of any facts showing
that the comparators are similarly situated to Plaintiff. The only fact Plaintiff relies upon
to demonstrate that Pirate’s Cove was similarly situated to Margueritagrill and Riverside
Resort are that the developments are commercial waterfront properties that are water
dependent. This is simply too broad a criteria to fulfill the similarly-situated requirement.
See Griffin Indus., 496 F.3d at 1203 (noting that “[t]oo broad a definition of ‘similarly
situated’ could subject nearly all state regulatory decisions to constitutional review in
federal court and deny state regulators the critical discretion they need to effectively
perform their duties.”). Given the multidimensional nature of Plaintiff’s claim, Plaintiff’s
allegations are insufficient to demonstrate that Margueritagrill and Riverside Resort are
similarly situated to Pirate’s Cove. Plaintiff must allege with greater specificity the
existence of similarly-situated comparators; otherwise his “class of one” equal protection
claim fails.
11
Because Plaintiff has not demonstrated the existence of similarly-situated
developments that were treated differently from Pirate’s Cove, Plaintiff’s equal protection
claim is inadequate. Plaintiff’s equal protection claim should therefore be dismissed.
Plaintiff will be provided a final opportunity to amend this claim.
2. Temporary Taking (Count IV)
Plaintiff asserts a claim for a temporary taking under the Fifth Amendment as an
alternative to his claim for inverse condemnation. (Doc. 24 at 21-23). Generally, for a
regulatory takings claim to be ripe, a property owner must show that the government has
issued a final decision and must allege
either that the state law provides him [or her] no process for obtaining just
compensation (such as an action for inverse condemnation) or that the state
law appears to provide such process, but due to state court interpretation, the
process is inadequate.
Agripost, Inc. v. Miami-Dade Cnty., 195 F.3d 1225, 1231 (11th Cir. 1999); see also
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 186-87 (1985).
Florida law provides for an inverse condemnation action to
compensate parties for a temporary taking. See Abusaid v. Hillsborough Cnty. Bd. of Cnty.
Comm’rs, 637 F. Supp. 2d 1002, 1016 n.13 (M.D. Fla. 2007) (“The State of Florida
provides an adequate procedure for seeking just compensation, namely, a remedy for
inverse condemnation.”).
The County argues that Plaintiff’s claim for a temporary taking is not ripe, and, even
if ripe, fails as a matter of law. (Doc. 27 at 5-10). The Court agrees that Plaintiff’s
temporary takings claim is not ripe. Nevertheless, the Court permitted Plaintiff to amend
12
his complaint to add a claim for inverse condemnation under Florida law. (Doc. 23). The
Court also permitted Plaintiff to include a claim for a temporary taking to be considered
only in the event that his inverse condemnation claim is unsuccessful. (Doc. 23). Both
Plaintiff and Defendant agree that Plaintiff’s claim for a temporary taking should be abated
until Plaintiff’s inverse condemnation claim is fully adjudicated. (Doc. 27 at 6; Doc. 30 at
8). Because this claim is not ripe, the Court declines to consider it on the merits, but it
grants the parties’ request to abate litigation of this claim until Plaintiff’s inverse
condemnation claim has been fully adjudicated.
3. Declaratory Judgment Regarding the Floor Area Ratio Determination (Count VI)
Plaintiff seeks declaratory judgment that Citrus County Ordinance 2012-06, which
contains the most current definition of gross floor area, is void because the County did not
enact the ordinance in accordance with the procedures established by Florida Statute
§ 125.66(4)(b)(2), which provides the language that should be used in publishing notices
of hearings regarding amendments to ordinances.
(Doc. 1 at 29-31).
Specifically,
§ 125.66(4)(b)(2) states that the title of the notice should read “NOTICE OF (TYPE OF)
CHANGE.” Here, the heading of the notice regarding the change to the ordinance defining
gross floor area stated, “Notice of Intent to Consider an Ordinance Regulating Land
Development in Citrus County to be Known as the Citrus County Land Development
Code.” (Doc. 1, Ex. T). According to Plaintiff, because this heading did not indicate that
it reflected a change, it was not in substantial compliance with § 125.66(4)(b)(2). (Id. at
29).
13
Plaintiff also alleges that the County failed to comply with Florida Statute
§ 163.3194(2) in enacting Ordinance 2012-06, which requires that a review and
recommendation be made by the local planning agency regarding the relationship of the
proposed regulation to the comprehensive plan.
(Id. at 29-30).
Florida Statute
§ 163.3194(2) provides:
After a comprehensive plan for the area, or element or portion thereof, is
adopted by the governing body, no land development regulation, land
development code, or amendment thereto shall be adopted by the governing
body until such regulation, code, or amendment has been referred either to
the local planning agency or to a separate land development regulation
commission created pursuant to local ordinance, or to both, for review and
recommendation as to the relationship of such proposal to the adopted
comprehensive plan, or element or portion thereof. Said recommendation
shall be made within a reasonable time, but no later than within 2 months
after the time of reference. If a recommendation is not made within the time
provided, then the governing body may act on the adoption.
Plaintiff alleges that no such review and recommendation occurred regarding Ordinance
2012-06.
Based on the County’s failure to comply with these Florida Statutes, Plaintiff
requests that Ordinance 2012-06, containing the definition of gross floor area, be declared
void ab initio. The County renews its previous argument that its notice substantially
complied with Florida Statute § 125.66(4)(b)(2). (Doc. 27 at 11). The County also argues
that even taking Plaintiff’s allegations as true, it did not violate Florida Statute
§ 163.3194(2) such that the ordinance is invalid. (Doc. 27 at 13-14).
As to the County’s renewed argument that Plaintiff failed to demonstrate that it did
not comply with Florida Statute § 125.66(4)(b)(2), the Court recognizes that the rule
articulated in Neumont v. Florida, 451 F.3d 1284, 1286 (11th Cir. 2006) requiring strict
14
compliance with the notice requirements extends only to § 125.66(4)(b)(2)’s direction that
the advertisement be in “substantially” the same form as provided for in the statute. The
Court previously took issue with the County’s argument because it provided no support for
its proposition that its notice was in “substantially” the same form as required by the statute.
The crux of Plaintiff’s argument is whether the omission of the word “change” alters the
message intended to be conveyed by the notice. Since the County did not make a
compelling argument that its notice substantially complied with the statute, the Court
denied its request to dismiss Plaintiff’s claim for declaratory judgment.
The County still does not articulate what is required by “substantial” compliance
nor does it present a compelling argument that its notice conformed to this vague concept
of “substantial” compliance. Without more, the Court concludes that it is inappropriate to
dismiss Plaintiff’s claim on the County’s present argument. See Brady v. Medtronic, Inc.,
No. 13-CV-62199-RNS, 2014 WL 1377830, at *6 (S.D. Fla. Apr. 8, 2014) (“Generally, a
‘litigant who fails to press a point by supporting it with pertinent authority, or by showing
why it is sound despite a lack of supporting authority or in the face of contrary authority,
forfeits the point. The court will not do his research for him.’” (quoting Phillips v. Hillcrest
Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (internal quotation marks omitted))).
As to Florida Statute § 163.3194(2), the Court agrees with the County that Decker’s
allegations do not demonstrate violation of that provision. Decker admits in his amended
complaint that Ordinance 2012-06 was referred to the local planning agency, was
considered, and was recommended for approval. (Doc. 24 at 24; Ex. Q). Rather, Plaintiff’s
qualm is that the local planning agency did not make a finding regarding the ordinance’s
15
relationship to the comprehensive plan. But under the plain language of the statute, such a
finding is not necessary to the viability of an ordinance. Florida Statute § 163.3194(2)
specifically contemplates a scenario where such a finding is not made, i.e., if an ordinance
is referred to the local planning agency and no recommendation or review is made within
two months after referral, the governing body may act on the adoption. Thus, even if the
local planning agency failed to make a finding regarding Ordinance 2012-06’s relationship
to the comprehensive plan, such failure is not critical to the ordinance’s validity.
Plaintiff’s claim is allowed to stand to the extent that Plaintiff argues that Ordinance
2012-06 is void because the County violated Florida Statute § 125.66(4)(b)(2), but is
dismissed to the extent Plaintiff argues that the ordinance is void because the County did
not comply with Florida Statute § 163.3194(2).
4. Petition for Writ of Certiorari (Count VIII)
Until the Court resolves Plaintiff’s Motion for Entry of an Order to Show Cause as
to Count VIII Petition for on the Record Review (Doc. 25), the County has no obligation
to respond to Plaintiff’s request for a writ of certiorari. The Court recognizes the County’s
reservation of its right to respond to the petition if necessary.
5. Inverse Condemnation (Count IX)
Finally, Plaintiff’s first amended complaint asserts a claim for inverse condemnation
under Florida law for the alleged taking of his property rights. (Doc. 24 at 44-45). Plaintiff
asserts that the County intentionally delayed the development of his project in several
respects to such an extent that it amounted to a temporary taking of his property to which
he is entitled to just compensation. (Id.). Specifically, Plaintiff highlights the County’s
16
failure to object to the 180-day proposed occupancy of the project until eighteen months
after the intended occupancy had been disclosed to the County. (Id. at 45). The County
argues that Plaintiff’s claim for inverse condemnation is vague and fails to identify that the
County actually “took” anything or the conduct of the County that amounted to a taking.
(Doc. 27 at 15-16). The County also argues that his claim for inverse condemnation is not
ripe because Plaintiff cannot show that a final decision was ever made as to his property.
(Id.).
Plaintiff’s claim for inverse condemnation is vague and confusingly pled. Plaintiff’s
claim will therefore be dismissed with leave to amend to allege with greater clarity the
conduct of the County that allegedly resulted in a temporary taking. To the extent it appears
that Plaintiff alleges that a temporary taking occurred because the County, during
negotiations for the development agreement, belatedly expressed concern regarding the
length of the occupancies intended for the Pirate’s Cove resort condominium project, the
Court concludes that Plaintiff has not alleged facts demonstrating that the temporary taking
“denie[d] substantially all economically beneficial or productive use of [the] land.”
Tampa-Hillsborough Cnty. Expressway Auth. v. A.G.W.S. Corp., 640 So. 2d 54, 58 (Fla.
1994), as clarified (June 23, 1994).
As such, Plaintiff’s claim for inverse condemnation should be dismissed, but
Plaintiff will be granted leave to amend the claim.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
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1.
Defendant Citrus County’s Motion to Dismiss Plaintiff’s First Amended
Complaint (Doc. 27) is GRANTED in part and DENIED in part.
2. Count III is DISMISSED without prejudice.
3. Count IV is abated until Plaintiff’s claim for inverse condemnation has been fully
adjudicated.
4. Count VI is DISMISSED in part.
5. Count IX is DISMISSED without prejudice.
6. Within fourteen (14) days of the date of this Order, Plaintiff may file a second
amended complaint correcting the deficiencies noted above.
DONE and ORDERED in Tampa, Florida, this 10th day of November, 2015.
Copies furnished to:
Counsel/Parties of Record
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