GOODWIN et al v. WALTON COUNTY FLORIDA
Filing
59
ORDER: The 55 County's Motion to Dismiss is DENIED, and the 43 Goodwins' Motion for Preliminary Injunction is DENIED. The previously entered stay of discovery is lifted, and the parties have 45 days to complete discovery. Signed by CHIEF JUDGE M CASEY RODGERS on 3/31/2017. (SAS)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
EDWARD GOODWIN,
DELANIE GOODWIN,
Plaintiffs,
v.
Case No. 3:16-cv-364/MCR/CJK
WALTON COUNTY FLORIDA,
Defendant.
________________________________/
ORDER
This is a land use case. Plaintiffs have filed constitutional challenges to two
ordinances passed by the Defendant Walton County, Florida, and a request for entry
of a preliminary injunction as to one of them. ECF No. 43. Defendant has filed a
Motion to Dismiss Plaintiffs’ claim against that ordinance. ECF No. 55. Both
motions are due to be denied.
I. Background
In 1971, the Goodwins purchased beach-front property in Walton County
(“County”), where they built a home that they occupy as their primary residence. In
June, 2016, the County adopted a beach obstruction ordinance, which states “[i]t
shall be unlawful for any person to place, construct or maintain an obstruction on
the beach. Obstructions include, but are not limited to ropes, chains, signs, or
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fences.” Walton Cty. Code, Sec. 22-55 (“Sign Ordinance”). In June of 2016, the
Goodwins filed their Complaint in this case, raising a First Amendment Free Speech
challenge to the Sign Ordinance, and filed a Motion for Preliminary Injunction. The
County responded, arguing that the public had a right to use the dry sand beach under
the customary rights doctrine. A consolidated and expedited trial on the Motion for
Preliminary Injunction and the merits was scheduled, but on September 22, 2016,
the County consented to the preliminary injunction, precluding enforcement of the
Sign Ordinance during the pendency of the case. The trial was then continued and
the discovery period extended.
On October 25, 2016, the County enacted another ordinance, titled “Protecting
the Public’s Long-Standing Customary Use of the Dry Sand Areas of the Beaches.”
(“Customary Use Ordinance”). The Customary Use Ordinance, which will go into
effect April 1, 2017, declares that “[t]he public’s long-standing customary use of the
dry sand areas of all of the beaches in the County for recreational purposes is hereby
protected.” Id. § 2.1. It prohibits any “individual, group, or entity [from] impe[ding]
or interfer[ing] with the right of the public at large, including the residents and
visitors of the County, to utilize the dry sand areas of the beach that are owned by
private entities for recreational purposes.” Id. More specifically, the Ordinance
provides that the public may, inter alia, walk, jog, sunbathe with or without a beach
umbrella, picnic, fish, play beach games, build sand castles and other similar
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traditional recreational activities on the dry sand area of the beach “owned by private
entities.” Id. The Ordinance, however, prohibits public recreation within a fifteen
foot buffer zone “located seaward from the toe of the dune or from any permanent
habitable structure owned by a private entity.” The buffer zone does “not apply to
the Walton County Sheriff’s Office, the Walton County Tourist Development
Council, the South Walton Fire District, and other emergency service providers.”
Id. The Customary Use Ordinance imposes a $500.00 fine on anyone who impedes
or interferes with the public’s use of the dry sand areas outside of the buffer zone.
On November 7, 2016, the Goodwins filed a First Amended Complaint,
adding a facial physical takings challenge to the Customary Use Ordinance under
the Fifth Amendment, Count II. ECF No. 41. They also filed a Motion for
Preliminary Injunction to preclude the ordinance from becoming effective on April
1, 2017. The County filed a Motion to Dismiss the facial challenge.
II. Motion to Dismiss
A. Standard of Review
Federal pleading rules require only “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009). This requires a complaint to include
“sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
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544, 570 (2007)). Legal “labels and conclusions” devoid of any factual support will
not suffice and are not entitled to an assumption of truth. Id. (quoting Twombly, 550
U.S. at 555 (2007)). The “plausibility standard” requires a showing of “more than a
sheer possibility” that the defendant is liable on the claim. Id. When reviewing a
Rule 12(b)(6) motion to dismiss, the Court considers only the pleadings, attached
exhibits, or documents incorporated into the complaint by reference. See Thaeter v.
Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). In
considering the motion, the Court accepts the allegations of the complaint as true
and construes them in the light most favorable to the plaintiff. Hill v. White, 321
F.3d 1334, 1335 (11th Cir. 2003) (per curiam).
B. Discussion
The Takings Clause of the Fifth Amendment provides that private property
shall not “be taken for public use, without just compensation.” U.S. Const. amend.
V.
An unconstitutional taking occurs either because the government’s action
constituted an invalid exercise of the police power, Hawaii Hous. Auth. v. Midkiff,
467 U.S. 229, 240 (1984) (stating “[t]he ‘public use’ requirement [of the Takings
Clause] is . . . coterminous with the scope of a sovereign’s police powers.”), or the
government denied a property owner just compensation when taking his property.
See Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-24 (1978)
(“Penn Central”). The Takings Clause does not per se prohibit the taking of private
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property; rather it requires just compensation for the property owner when a lawful
taking occurs. Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 194 (1985). Despite this basic premise, “the question
of what constitutes a taking [remains] a problem of considerable complexity.” Gulf
Power Co. v. United States, 998 F. Supp. 1386, 1390 (N.D. Fla. 1998). There are
several types of takings claims, with differing standards. See Eide v. Sarasota Cty.,
908 F.2d 716, 722 (11th Cir. 1990) (discussing different types of “takings” and
noting that “often one cannot tell which claim has been brought or which standard
is being applied.”).
The classic taking involves the government’s exercise of eminent domain to
appropriate private property for public use, which is not at issue in this case. Lingle
v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). Government regulation can also
sufficiently interfere with the use of private property to the point that a taking occurs.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Generally, where a
regulation interferes with private property, a court engages in “ad hoc, factual
inquiries” under the multi-factor balancing test in Penn Central to determine
whether a regulatory taking has occurred. Penn Central, 438 U.S. at 124. Penn
Central requires the court to consider the economic impact on the property owner,
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the government’s interference with the property owner’s investment backed interest,
and the character of the government action. 1 Id.
Additionally, the Supreme Court has staked out two narrow categories of per
se regulatory takings. Lingle, 544 U.S. at 538. First, a per se regulatory taking
occurs where government action deprives a property owner of all economically
beneficial use of his property. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 101516 (1992). The second category of per se regulatory takings occurs if there has been
a permanent physical invasion of private property by the government. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-40 (1982). Within this
category, a “physical” regulatory taking also occurs when a government action
secures an exaction on private property for public access. Dolan v. City of Tigard,
512 U.S. 374, 384-85 (1994); Nolan v. Cal. Coastal Comm’n, 483 U.S. 825, 831-34
(1987) (defining exactions as “commonplace conditions on approval of
development”). The Goodwins have alleged that the County’s Customary Use
Ordinary is a per se physical taking of their property.
Ordinarily, a takings claim is raised as an “as-applied” challenge. An asapplied claim considers “the particular impact of government action on a specific
1
The Supreme Court has “been unable to develop any set formula for determining when
justice and fairness require that economic injuries caused by public action be compensated by the
government.” Kaiser Aetna v. U.S., 444 U.S. 164, 175 (1979) (quoting Penn Central, 438 U.S. at
124 (internal quotations omitted).
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piece of property” and “requires the payment of just compensation.” Keystone
Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494 (1987). This type of asapplied challenge can only be brought after the plaintiff has availed himself of all
available state procedures for seeking just compensation and been denied. See
Williamson Cty., 473 U.S. at 195 (“Williamson County ripeness doctrine”). A
plaintiff may also raise a facial takings challenge to “the mere enactment” of a statute
or regulation when it constitutes a taking. Id. Facial challenges to a statute or
regulation have been allowed both where the regulation denies all economically
viable use of land, and also where the regulation has authorized a physical taking.
See Hodel v. Va. Surface Mining & Reclamation, 452 U.S. 264, 295 (1981) (quoting
Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (citing Penn Central, 438 U.S.
at 138 n.36)); Gulf Power Co. v. United States, 187 F.3d 1324, 1331 (11th Cir. 1999);
see also Keystone Bituminous, 480 U.S. at 495 (quoting Hodel); Lucas, 505 U.S. at
1016 n.6 (quoting Hodel). Because the facial takings challenge is a narrow one,
plaintiffs “face an uphill battle[] in making a facial attack.” Hodel, 452 U.S. at 295.
In this case, the Goodwins challenge the County’s Customary Use Ordinance
on grounds that it constitutes a permanent physical invasion of their private beach
property. In other words, they claim that the mere enactment of the ordinance is a
per se regulatory taking. The County argues that the Goodwins’ facial taking claim
is not ripe because a facial takings claim is subject to the Williamson County ripeness
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doctrine, which requires that a plaintiff have sought compensation through available
state procedures before raising a takings claims, which the Goodwins have not done.
The County also argues that even if the ripeness doctrine does not apply to a facial
challenge, the Goodwins’ claim is nonetheless due to be dismissed because they
have actually raised (1) an improper substantially advances/due process challenge
rather than a takings claim, or (2) an as-applied claim that is subject to the ripeness
doctrine. The County argues further that the as-applied challenge is unripe both
because the Ordinance has not yet been enacted, and also because the Goodwins
have not sought compensation from the state. The County also argues that the
Goodwins have “not alleged conduct by the County that rises to the level of a
taking.” ECF No. 55 at 3.
First, the County argues in a conclusory manner that the Goodwins have failed
to state a claim because they have “not alleged conduct by the County that rises to
the level of a taking.” ECF No. 55 at 3. In response, the Goodwins argue that the
County has waived this argument by failing to brief it. The Court need not decide
whether the County waived the argument because the Goodwins have adequately
pled a facial physical takings claim. See Gulf Power Co., 187 F.3d at 1331. In order
“to state a Takings claim under [ ] federal . . . law, a plaintiff must first demonstrate
that he possesses a ‘property interest’ that is constitutionally protected.” Givens v.
Alabama Dept. of Corr., 381 F.3d 1064, 1066 (11th Cir. 2004). The factual
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allegations in this case plainly assert that the Goodwins have a protected property
interest in the dry sand area of the beach inland from the mean high water line.
Additionally, the Goodwins have alleged that the mere enactment of the County’s
ordinance is an unlawful, physical invasion of theirs and others’ private dry sand
beaches. As such, the Goodwins have adequately alleged a facial physical takings
claim.
Regarding the County’s argument that the Goodwins’ claim is in essence an
as-applied challenge rather than a facial change, the Court disagrees. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). It is then the court’s function to “draw legal
conclusions from the facts pled.” Borrero v. United Healthcare of N.Y., Inc., 610
F.3d 1296, 1303 (11th Cir. 2010) (citing Iqbal, 556 U.S. at 678). In this case, the
County chose to adopt an ordinance that applies the customary use doctrine to
privately owned sandy beaches throughout Walton County. The Goodwins have
alleged that the mere enactment of the Customary Use Ordinance is facially
unconstitutional because it authorized a physical invasion by the public onto private
land. See Loretto, 458 U.S. at 435 (“The power to exclude has traditionally been
considered one of the most treasured strands in an owner’s bundle of property
rights.”) (citing Kaiser Aetna, 444 U.S. at 179-80). Moreover, the Goodwins have
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alleged facts that the Customary Use Ordinance amounts to a taking of “the
Goodwins’ and others’ private dry sand beach.” ECF No. 41 at 15 (emphasis added).
Because the Goodwins do not allege that only their “specific piece of property” has
been “particular[ly] impact[ed] [by the] government action,” the claim is a facial
challenge. Keystone Bituminous, 490 U.S. at 494. Accordingly, the Court finds no
support for the argument that the facts as alleged give rise to an as-applied rather
than a facial challenge. 2
Alternatively, the County argues that the Goodwins’ claim should be
dismissed because the Goodwins are actually raising an invalid “substantially
advances” taking claim rather than a facial physical takings claim.
The
“substantially advances” regulatory taking claim was first articulated in Agins v. City
of Tiburon, 447 U.S. 255 (1980), in which the Supreme Court held that a taking
occurred when the government’s regulation of private property did not “substantially
advance” the government’s interest or denied an owner all economically viable use
of his property. Id. at 260. The County is correct that the Supreme Court has since
abandoned the “substantially advances” regulatory takings claim. See Lingle, 544
U.S. at 545. However, the Court in Lingle did not abandon all facial takings claims,
2
The County maintains that the as-applied challenge is due to be dismissed as unripe under
the Williamson County ripeness doctrine because the Goodwins have failed to exhaust available
state remedies. Because the Goodwins do not raise an as-applied challenge, the claim need not be
dismissed for ripeness reasons under Williamson County.
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only the substantially advances claim, finding the claim more akin to a due process
challenge. Id. at 542. Therefore, facial takings claims can still be valid even after
Lingle. It is clear from the First Amended Complaint that the Goodwins have
brought a facial physical invasion takings claim, not a “substantially advances”
takings claim; thus, the claim is not due to be dismissed on this ground.
Additionally, the County argues that the Goodwins’ facial taking claim is not
ripe under the Williamson County ripeness doctrine; however, the Court disagrees.3
The doctrine does not apply to a facial takings claim because a facial challenge is
“generally ripe the moment the challenged regulation or ordinance is passed.” 4
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n.10 (1997); Lucas, 505
U.S. at 1013 n.4 (“Facial challenges are ripe when the [ordinance] is passed.”).
Unlike as-applied takings challenges, which seek just compensation, a facial
challenge does not “depend on the extent to which [plaintiff]s are deprived of the
economic use of their particular pieces of property or the extent to which these
particular [plaintiffs] are compensated.” Yee v. City of Escondido, 503 U.S. 519,
534 (1992). Rather, a facial physical takings claim depends on whether the “mere
3
Although the County moves to dismiss under Rule 12(b)(6), their ripeness argument is
more appropriately addressed under Rule 12(b)(1) for lack of jurisdiction. See Lord Abbett Mun.
Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1205 (11th Cir. 2012).
4
Also, to the extent the County suggests that the facial taking claim is unripe because the
ordinance does not go into effect until April 1, 2017, the Court disagrees. Because the ordinance
has clearly been enacted, the facial takings claim is ripe.
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enactment of a piece of legislation” effects a per se taking of property under the Fifth
Amendment. See Suitum, 520 U.S. at 736 n.10; see also Gulf Power Co., 187 F.3d
at 1331 (concluding that the mandatory access provision of the Pole Attachment Act
was facially unconstitutional as a per se physical invasion of property). As such,
“by their nature,” facial challenges are immediately ripe because they “request[]
relief distinct from the provision of ‘just compensation.’” San Remo Hotel, L.P. v.
City & Cty. of San Francisco, Cal., 545 U.S. 323, 345-46 (2005). Accordingly,
because the Goodwins’ have alleged a facial physical takings challenge, which states
that the Ordinance unlawfully permits the public to invade their private property,
their claim is ripe.5 See also Abu-Khadier v. City of Fort Myers, Fla., Case No. 2:12CV-387-FTM-29CM, 2014 WL 3446416, at *4 (M.D. Fla. July 15, 2014) (holding
that a facial challenge to an ordinance does not require compliance with ripeness
doctrine) (citing Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, Fla., 727 F.3d
1349, 1359 n.6 (11th Cir. 2013)).
III. Motion for Preliminary Injunction
The Goodwins have requested that the Court issue a preliminary injunction
enjoining the County’s Customary Use Ordinance, which is due to take effect on
April 1, 2017. ECF No. 43. The County argues that a preliminary injunction is not
5
Because the Goodwins’ facial physical takings claim is ripe the Court need not consider
the Goodwins’ argument that the claim should nevertheless be considered for prudential reasons.
ECF No. 56 at 10.
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an available remedy for a takings claim and, in the alternative, that the Goodwins
have not met their burden for injunctive relief.6
As a threshold matter, the Court must address whether a preliminary
injunction is an available remedy for a facial takings claim. The Takings Clause of
the Fifth Amendment “does not prohibit the taking of private property, but instead
places a condition on the exercise of that power” by securing compensation in the
event of an otherwise lawful taking. First English Evangelical Lutheran Church of
Glendale v. Cty. of Los Angeles, Cal., 482 U.S. 304, 314-15 (1987) (“First English
Evangelical”). However, facial takings challenges are a horse of a different color,
because the relief requested is declaratory and injunctive, rather than just
compensation. See San Remo, 545 U.S. at 345-46. Therefore, “despite the strong
presumption that damages, not injunctive relief, are the appropriate remedy in a
Takings Clause action,” injunctive relief is available in limited circumstances.
Peters v. Vill. of Clifton, 498 F.3d 727, 732-33 (7th Cir. 2007) (recognizing that
injunctive relief may be granted where there are either “unavailable or inadequate
procedures” for seeking just compensation); see also Philip Morris, Inc. v.
Harshbarger, 159 F.3d 670, 680-81 (1st Cir. 1998) (affirming a preliminary
injunction that was based on a facial takings claim); D.A.B.E., Inc. v. City of Toledo,
6
The County also reiterates its argument that the Goodwins have not asserted a facial
takings claim, and in the alternative, that the claim is not ripe. The Court has rejected these
arguments.
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292 F. Supp. 2d 968, 973 (N.D. Ohio 2003) (recognizing that a preliminary
injunction is an available remedy for a facial regulatory takings claim), aff’d, 393
F.3d 692 (6th Cir. 2005). Accordingly, the Court finds that injunctive relief may be
an available remedy for a facial takings claim.
The decision to grant or deny a motion for preliminary injunction “is within
the sound discretion of the district court.” Palmer v. Braun, 287 F.3d 1325, 1329
(11th Cir. 2002). To obtain a preliminary injunction, the moving party must
demonstrate each of the following by a preponderance of the evidence:
(1) that there is “a substantial likelihood of success on the merits of the
underlying case,”
(2) that the moving party “will suffer irreparable harm in the absence
of an injunction,”
(3) that the balance of harm to the moving party in the absence of an
injunction would outweigh the harm to the opposing party from
issuance of an injunction, and
(4) that “an injunction would not disserve the public interest.”
Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir. 2011) (internal marks omitted); see
also LSSi Data Corp. v. Comcast Phone, LLC, 696 F.3d 1114, 1119 (11th Cir. 2012).
In this circuit, it is well settled that “a preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant clearly established the burden of
persuasion as to all four elements.” CBS Broadcasting, Inc. v. Echostar Commc’ns.
Corp., 265 F.3d 1193, 1200 (11th Cir. 2001) (internal marks omitted), cert. denied,
535 U.S. 1079 (2002). In deciding whether to grant a preliminary injunction, courts
should be mindful that “the chief function of a preliminary injunction is to preserve
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the status quo until the merits of the controversy can be fully and fairly adjudicated.”
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001)
(quoting Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of
Jacksonville, Fla., 896 F.2d 1283, 1284 (11th Cir. 1990)).
Having reviewed the record and the parties’ arguments, the Court finds that
the Goodwins have not shown that they will suffer an irreparable injury in the
absence of an injunction. To the extent the Customary Use Ordinance is ultimately
determined to be facially unconstitutional, the Goodwins’ remedy for the facial
invalidity of the ordinance will be limited in this case to declaratory and injunctive
relief.
See San Remo, 545 U.S. at 345-46 (noting that facial challenges are
immediately ripe because they “request[] relief distinct from the provision of ‘just
compensation.’”). Because a preliminary injunction is an extraordinary remedy,
however, and the Court must be satisfied that issuing the injunction will not harm
the public interest, preliminary relief is appropriate “only when that legal right has
been infringed by an injury for which there is no adequate legal remedy and which
will result in irreparable injury if the injunction does not issue.” Alabama v. U.S.
Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005). If the Goodwins are
successful in this suit, they will obtain the only requested relief, declaratory and
injunctive relief. At that time, the only harm they could have suffered in the interim
is the temporary loss of the right to exclude the public from their beach during the
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time this suit was pending. However, the remedy for that sort of temporary taking
for a public use, if in fact it has harmed the Goodwins, would be a request for “just
compensation,” which is not before this Court.7 See Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 328-29 (2002) (noting that a
temporary taking may or may not be compensable, but that it is a question first for
the state court). And where a harm is capable of being remedied by a monetary
payment, there is no irreparable injury. See Ferrero v. Associated Materials, Inc.,
923 F.2d 1441, 1449 (11th Cir. 1991) (“An injury is ‘irreparable’ only if it cannot
be undone through monetary remedies.”) (quoting Cate v. Oldham, 707 F.2d 1176,
1189 (11th Cir. 1983)); see also Deerfield Med. Ctr. v. City of Deerfield Beach, Fla.,
661 F.2d 328, 338 (5th Cir. 1981) (same). Thus, the Goodwins cannot demonstrate
that they will suffer irreparable injury if they do not receive preliminary injunctive
relief. 8 See generally Wisconsin Cent. Ltd. v. Pub. Serv. Comm’n of Wisconsin, 95
7
The Court acknowledges that it may appear inconsistent to say that, on the one hand, the
Goodwins’ facial takings challenge is ripe without having sought just compensation, and on the
other, to say that there is no irreparable harm because just compensation is available in state court;
however, it is important to note that facial takings challenges present a narrow, peculiar exception
to the requirement of just compensation, and does not preclude the availability of a later request
for just compensation if a taking has occurred.
8
The Court notes that the Goodwins have not requested the remedy of just compensation
at all, which, if they did at this point, would be considered an unripe as-applied challenge under
the Williamson County ripeness doctrine. See Williamson Cty., 473 U.S. at 195 (ripeness doctrine);
see also Busse v. Lee Cty., Fla., 317 F. App’x 968, 972 (11th Cir. 2009) (recognizing that Florida
procedures provide remedy for takings violations). Ultimately, if a taking has occurred during this
suit by reason of the Customary Use Ordinance, “no subsequent action by the government can
relieve [the County] of the duty to provide compensation for the period during which the taking
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F.3d 1359, 1369 (7th Cir. 1996) (stating, where just compensation is a remedy, and
the aggrieved party has “failed to perfect their available remedies under state law,”
irreparable harm cannot be shown). Moreover, to the extent the Goodwins also argue
that the failure to enjoin the Customary Use Ordinance will harm their First
Amendment rights, the Court disagrees. The County has already consented to a
preliminary injunction regarding the Sign Ordinance, which is the basis for the
Goodwins’ free speech claim. Based on that consent, the Court has previously
entered an order enjoining the enforcement of that ordinance, which remains in
effect. ECF No. 34.
Additionally, the balance of harms inquiry of the preliminary injunction
analysis shows that the balance swings in favor of the public interest. If this Court
grants a preliminary injunction and the County ultimately prevails (by showing that
the public has enjoyed longstanding customary use of the beach), then the public
would have suffered. Specifically, the preliminary injunction would have caused
harm to the public’s interest during the pendency of this suit, which is not
compensable. Because the Goodwins have failed to clearly establish the burden of
persuasion as to two of the four prerequisites for preliminary injunctive relief by
failing to show irreparable injury or a favorable balance of harms when injunctive
was effective.” First English Evangelical, 482 U.S. at 305 & 315, 318, 321; see also Tahoe-Sierra
Pres. Council, Inc., 535 U.S. at 328 (2002).
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relief is considered against the public interest, the Court need not address the
remaining elements. The motion is due to be denied.
Accordingly, the County’s Motion to Dismiss, ECF No. 55, is DENIED and
the Goodwins’ Motion for Preliminary Injunction is DENIED. ECF No. 43. The
previously entered stay of discovery is lifted, and the parties have 45 days to
complete discovery.
DONE and ORDERED this 31st day of March, 2017.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
Case No. 3:16-cv-364
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