Here's the latest from a case we've featured here before.
There's something for everyone in the Florida District Court of Appeal (Second District)'s opinion in Jamieson v. Town of Fort Myers Beach, No. 2D21-2722 (Dec. 29, 2022).
Let's start with the outcome: the court reversed the trial court's summary judgment in a wetlands takings case, sending the matter back for a trial. Sounds good.
But let's back up a sec. The case started a long time ago, when Jamieson's seven-acre residentially-zoned property was designated as a wetland, resulting in a use density decline from 40 buildable lots to zero (wetlands density is one residence per 20 acres). For a decade, Jamieson tried to "change and/or correct the wetlands designation[.]" Slip op. at 3. The opinion lists out his efforts. He tried for
an application for boundary clarification regarding the extent of the wetlands, a request to transfer the residential density from the affected lots to another parcel, a request for an administrative determination that the wetlands designation was inaccurate as demonstrated by a South Florida Water Management District (SFWMD) survey that determined that the property was only sixty-one percent wetland, a request for a minimum use determination (MUD) to establish that the platted lots were entitled to residential development despite being "nonconforming," and a request for a variance from the Town's Land Development Code to allow development in accordance with state guidelines, which allowed development on wetlands with mitigation.
Slip op. at 3-4 (footnote omitted).
When "[a]ll of his efforts failed[,]" he filed a Bert Harris Act notice of claim. In response, the Town offered to settle by removing the wetlands designation on three lots, provided Jamieson surrender development rights on the remaining 37 lots. No thanks, he replied, and sued for a taking, both a Lucas categorical, and a Penn Central ad hoc.
As you might predict, this was just the opening of the second phase of his odyssey. The trial court granted the Town summary judgment on ripeness (which the court of appeal eventually reversed). The court of appeal reversed and remanded.
Back in the trial court, after a series of cross-motions for summary judgment (see page 5 of the slip opinion), the court denied Jamieson's motions, and again granted the Town's.
Back up to the court of appeal.
The Good: The court rejected the trial court's rationale for granting the Town summary judgment on Jamieson's categorical takings claim. The trial court relied on a footnote in the court of appeal's earlier opinion on ripeness to conclude that the takings issue had been resolved by the court of appeal and this merits ruling was law of the case. The logic goes like this: if Jamieson had not rejected the Town's settlement offer, he could have developed his property. In short: "you were willing to settle the case, so that proves that the wetlands designation hasn't deprived your property of all economically beneficial uses."
The court of appeal said no, the mention of the offer of settlement in the prior ripeness decision was only to show that the Town's position about uses of the Jamieson property was known "to a reasonable degree of certainty" and the case was therefore ripe, and decidedly did not resolve the merits (and indeed, the inferences the trial court should have drawn from the situation were that the Town was likely to reject the settlement even if Jamieson had accepted it).
The court also reversed the grant of summary judgment to the Town on Jamieson's Penn Central takings claim. These are "ad hoc" factors, and lack any 'set formula" and thus cannot be determined by summary judgment. Factual inquiries require a trial.
The Bad: But the court also rejected Jamieson's argument he is entitled to win his Bert Harris Act claim. Noting first that the claim might be untimely ("it appears that Jamieson may not have been entitled to assert a Bert Harris Act claim to begin with" slip op. at 15 [oof]), the opinion pointed out that the trial court never ruled on this issue. Thus, it remanded the claim, first providing a bit of guidance "[s]hould the trial court find that Jamieson's Bert Harris Act claim is not time-barred[.]" Slip op. at 16.
The short story here is that the Town's wetlands designation was not dispositive either way under the Act's "inordinately burdened" standard. The designation may be a factor, but that must be weighed against other factors (see the list on page 17). No summary judgment here for either party, and "these are issues of fact that must be brought to light in a trial[.]" Slip op. at 17.
The Ugly: The court doubled down on the unfortunate mislabeling of takings claim that appear from time to time in Florida courts. See for example page 5, where the opinion contrasts "total" or "per se" takings (i.e., categorical Lucas wipeouts), with "partial" or "as-applied" takings (what the court labels ad hoc Penn Central takings). This doesn't appear to be an error of substance, but one of labeling. But as we know, preciseness matters here, in an area of law that is already confusing enough. "Partial" takings are not Penn Central takings, but takings of less than an entire interest in property (an easement, for example). And "as-applied" takings are also not Penn Central takings, but rather the format of a challenge (whether the plaintiff is claiming the government action is facially unconstitutional or only as applied to her property).
Jamieson v. Town of Fort Myers Beach, No. 2D21-2722 (Fla. Dist. Ct. App. Dec. 29, 2022)
