The Town of Fort Myers Beach, Florida, barred the sale of alcohol on beaches in 1995. Turns out that a beachfront business was already (legally) selling alcohol on its property at the time of the ban. And we know what that usually means: a grandfathered nonconforming use.
Today's case from the Florida District Court of Appeal (Second District), Persaud Properties FL Investments, LLC v. Town of Fort Meyers Beach, No. 2D19-1282 (Dec. 11, 2020), is at the intersection of two of our favorite subjects, land use and inverse condemnation.
No one questioned whether Persaud possessed a nonconforming use. The issue was whether it had it abandoned it when it closed the establishment "to begin extensive renovations."
The Town was well aware of the renovations as various construction permits had to be issued and inspections had to occur; additionally, during the renovation period, multiple stop-work orders were issued by the Town. Upon completion of the renovations in October 2015, Persaud sought the necessary approval to reopen and begin selling alcohol on the premises, including in the EC zone. During the one-year period of closure and at the request of Persaud, the property's liquor license had been held in escrow or "inactive status" by the Department of Alcoholic Beverages and Tobacco, a fact which had been known to the Town and which was important to a Town planner for purposes of the abandonment issue.
Slip op. at 2-3.
No-go, said the Town, you abandoned.
Persaud sued for a taking, among other claims, but the trial court granted the Town summary judgment, concluding Persaud had abandoned the nonconforming use by non-use, and that it did not, therefore, possess property that was taken.
The court of appeal reversed. Reading the Town's land development code's definition of abandonment to mean non-use of the location for nine straight months, the court held that an owner must intentionally cease the use:
Strictly construing the Town's ordinance in favor of the property owner, as we must, abandonment of a nonconforming use requires more than the passage of nine months while the property was closed for renovations; it requires voluntary cessation of the nonconforming use with the intent that the cessation of such use be permanent. The trial court erred in failing to apply the common law and in determining, as a matter of law, that Persaud had abandoned the nonconforming use of its property where there was no evidence that Persaud intended to discontinue selling alcohol in the EC zone.
Persaud did not abandon or discontinue the nonconforming use of the
property during the one-year period of closure where renovations and construction were ongoing. Persaud is therefore entitled, under the applicable provisions of the Town's municipal code, to maintain the property's status as a grandfathered nonconforming use.
Slip op. at 9.
Persaud Properties FL Investments, LLC v. Town of Ft Myers Beach, No. 2D19-1282 (Fla. Dist. Ct. App. Dec. 1...