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Water Log 29.1, May, 2009

Florida Court Reverses Dismissal of Takings Claims on Statute of Limitations Grounds

Collins v. Monroe County, 999 So. 2d 709 (Fla. Dist. Ct. App. 3d Dist. 2008)

Moses R. DeWitt, 2010 J.D. Candidate, Florida State University School of Law

The Third District Court of Appeal of Florida held that a takings claim was not a categorical challenge and, therefore, the statute of limitations did not begin to run until the land use authority made a determination as to what type of use is permitted, if any, on the landowners’ properties.

Background
In 1985, the Florida Legislature enacted a State Comprehensive Plan that Monroe County adopted in 1986. The Comprehensive Plan altered the zoning classification for much of the County, which includes the Florida Keys, from “General Use” to “Conservation-Offshore Island” in an effort to protect areas of sensitive environmental character. In 1996, Monroe County adopted its Year 2010 Comprehensive Plan (“2010 Comprehensive Plan”).

Collins and several other plaintiffs (together, "Land­ owners") owned real property in Monroe County.1 In 1997, the Land­ owners filed Bene­ ficial Use De­ termination (BUD) petitions under the 2010 Com­ prehensive Plan, which permits property owners whose properties have been deprived of all economic use to secure relief through an efficient, non-judicial proceeding.2 In 2002, the Monroe County Board of County Commissioners reviewed the BUD recommendations of a Special Master, found that each Landowner had been deprived of "all economic use," and approved the Special Master's recommendations that the County purchase the properties.3

In 2004 the Landowners brought suit alleging that their property had been taken without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution, for the County never offered nor paid the Land­ owners just compensation.

In declaring that the adoption of the 2010 Com­ prehensive Plan de­ prived the Land­ owners of all economic value in their properties, the trial court found that this government action constituted a categorical taking. However, the Flo­ rida statute of limitations requires landowners to file inverse condemnation suits within four years of the government action that allegedly caused the taking. Therefore, the trial court agreed with the State’s defense that the causes of action were barred because the four-year statute of limitations had elapsed, for the County and the City had adopted the 2010 Comprehensive Plan in 1996.

Categorical vs. As-Applied Takings Claims
The United States Supreme Court established a categorical regulatory takings test in Lucas v. South Carolina Coastal Council, declaring that a regulation that deprives a landowner of all economic use of her property constitutes a per se taking, unless the regulation simply restates a preexisting limitation on title under state common law.4 However, only in rare circumstances does property possess absolutely no economically beneficial use, and indeed several Justices questioned the valueless finding in Lucas itself.5

The Florida appellate court here described an as-applied challenge as a claim that raises the question of whether there has been a substantial deprivation of economic use through the application of a regulation that amounts to a taking, in accordance with the applicable balancing test under the U.S. Supreme Court’s opinion in Penn Central Transp. Co v. City of New York.6 A Penn Central analysis involves assessing the “economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the government action.”7

The Appellate Court’s Determination
The appellate court found that while the adoption of the 2010 Comprehensive Plan in the cases at hand restricted the development of the properties, it did not deprive the landowners of all economically beneficial use. To the contrary, some received post-BUD building permits or sold their properties. Thus, the mere enactment of the plan at issue did not eliminate all economically beneficial use of the property, contrary to the finding of the Special Master.

The Appellate Court ruled that the trial courts erred in determining that the adoption of the 2010 Comprehensive Plan constituted a categorical Lucas taking because the property retained economic value. Instead, the court asserted that the land­ owners’ takings claims were “as-applied” challenges to the application of the Monroe County land use regulations to specific properties.8

Takings jurisprudence states that a landowner cannot be expected to bring a takings cause of action when she does not know the allowable uses of her property, nor should a governmental land use authority face takings challenges before having an opportunity to make a final determination on the permitted uses, if any, for the property. Thus, an as-applied challenge is not ripe for judicial review until the government has made that final determination.8 Therefore, the statute of limitations cannot begin to run until the land use authority has notified the landowner of that determination, as well as had an opportunity to determine whether to grant any variances or waivers that are allowed by law. The court declared that the 2002 BUD determination constituted a final decision on the uses of the properties. Thus, the 2004 filing fell well within the four year statute of limitations.

Endnotes:
1.   Collins v. Monroe County, 999 So. 2d 709 (Fla. Dist. Ct. App. 3d Dist. 2008).
2.  Id. at 711.
3.  Id. at 711-12.
4.  505 U.S. 1003, 1017 (1992).
5.  See, e.g., id. at 1076 (Souter, J., dissenting) (stating that he would dismiss the writ of certiorari as improvidently granted in light of the “highly questionable” trial court conclusion that Lucas was deprived of his “entire economic interest.”).
6.  438 U.S. 104 (1978).
7.  Id.
8.  Collins, 999 So. 2 at 715-16.
9.  Id. at 715.

Recommended citation: Moses R. DeWitt, Florida Court Reverses Dismissal of Takings Claims on Statute of Limitations Grounds, 29:1 Water Log 8 (2009).

University of Mississippi