As long-time readers know, we often kvetch about the way many courts ignore the Palazzolo rule that simply because someone obtains property subject to preexisting restrictions on use does not preclude them automatically from raising takings claims. See here, here, here, and here, for example. More about the Palazzolo case here, including video.
But not all courts get it wrong, however. Now you can add to the plus-column the Florida District Court of Appeal (Second District)'s decision in Jamieson v. Town of Fort Myers Beach, No. 2D19-238 (Mar. 25, 2020).
The court held that a property owner who purchased land that earlier had been designated as 100% "wetlands" on the Town's land use map was not prohibited from pursuing takings (and since this is Florida, Bert Harris Act) claims. The case is a two-fer, because the court also concluded that the claims were ripe because the uses which the Town will allow are "clear to a reasonable degree."
The two parcels here total seven acres (subdivided back in 1919 into 40 separate lots), but a wetlands designation means a max density of one home per twenty acres. But the Town's land use plan allows a property owner to apply for a "MUD" (a minimum use determination, which includes a variance process) to see whether each lot qualifies for residential use. After the owner purchased the land, the Town adopted a development code that barred any development in property already designated as wetlands.
The owner sought a determination from the state water management agency of how much of its property was actually wetlands. The agency concluded that roughly 27% was uplands, 61% was wetlands, and the rest was surface water. The owner showed this determination to the Town, arguing the 100% wetlands designation was wrong. Nope, the Town concluded, there was "no clear factual error."
The owner sought a MUD that all 40 lots qualified for residential development. The local planning agency denied the MUD (no residential development on wetlands). The owner even sought to amend the comprehensive plan to allow transferable development credits to be used. No deal, no legislative amendment. [Barista's note: for a takings claim to be ripe, a property owner does not need to amend the law, but it appears the owner here tried anyway.]
The owner even sought a variance. Again, no luck: the Town didn't even process the request, concluding that a variance wasn't available as a matter of law.
So the owner sued, raising inverse condemnation and takings claims, as well as claims under the Bert Harris Act. The trial court granted the Town summary judgment, concluding first that because the owner purchased the property already subject to the wetlands designation (and thus it was already ineligible for development), he could not raise a takings claim as a matter of law. Second, the court concluded the claims were not ripe because the owner had not made a "meaningful application" for development, because he had not sought to amend the wetlands designation or the allowable max density requirement.
The court of appeal reversed. Relying on Palazzolo, the court concluded:
The trial court recognized Palazzolo in its order but distinguished the facts of Palazzolo, noting that "the claim [in Palazzolo] had not yet ripened by the time the property was transferred to a 'new owner' who has been the sole shareholder in the corporation that had owned the property for decades." The trial court went on to say that Palazzolo "holds that an owner who acquires title to property while awaiting a final decision from the government on the property's development rights is not subject to a 'blanket rule' that always strips that owner of a potential taking claim." We do not read Palazzolo so narrowly. The language in Palazzolo makes it clear that notice of a preexisting regulation does not operate as an absolute bar to a takings claim. See also Rukab v. City of Jacksonville Beach, 811 So. 2d 727, 733 (Fla. 1st DCA 2002) ("[W]e find no legal support for the contention that the [property owners] are somehow precluded from asserting their constitutional rights . . . because they bought the property subject to the previous determination of blight." (relying on Palazzolo, 533 U.S. at 627)).....Here, Jamieson acquired the full property rights when he bought the property, including the right to challenge the existing wetlands designation. Therefore, the trial court erred in determining that count I was barred as a matter of law because the wetlands designation existed before he acquired the property.
Slip op. at 8-9.
The court also made short work of the trial court's ripeness conclusion, holding that "the permissible uses of the property were clear to a reasonable degree of certainty when Jamieson filed his complaint." Slip op. at 11. The court went through the efforts the owner undertook, including the variance, and concluded, "it is reasonably certain that the Town will not permit Jamieson to develop ninety-three percent of his property based on its wetlands designation." Id. (footnote omitted).
It's a short opinion (13 double-spaced pages), and we recommend you read it in its entirety.
As for why the "My Generation" lede? Whenever we hear "Palazzolo," we think of that song by The Who. Not sure why, exactly. Maybe it's because both have the same number of syllables. No other reason, really. But there it is.
In that vein, we have sought a variance from the actual lyrics:
Town says I can't u-use my land
(Talkin' 'bout my Palazzolo)Just because it's wetlands planned
(Talkin' 'bout my Palazzolo)I just want to build a h-house
(Talkin' 'bout my Palazzolo)And ennn-nforce the Takings Clause
(Talkin' 'bout my Palazzolo)This is my Palazzolo
This is my Palazzolo, baby.
Jamieson v. Town of Fort Myers Beach, No. 2D19-238 (Fla. Dist. Ct. App. Mar. 25, 2020)
