Legal Report, March 2018

General Counsel, General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.

1. Key Biscayne Gateway Partners, Ltd. v. Vill. Council for Key Biscayne, 2018 Fla. App. LEXIS 2479, 2018 WL 988341 (Fla. 3rd DCA 2018). Site Plan Approval; sanctions.

This case was first reported in the February 2016 legal report.  Key Biscayne Gateway Partners, Ltd. ("developer") owned land within the Village of Key Biscayne (“Village”). The developer applied for site plan approval to develop the property as a Walgreens pharmacy store. In February 2014, the Village approved the site plan but imposed a condition of approval that limited cross-access to the property from an adjacent commercial property to only pedestrians, bicycles and golf cars.  Vehicles would not be permitted to use the cross-access.

The developer filed a petition for writ of mandamus against the Village seeking to compel approval of its site plan application without the condition of approval regarding cross-access.  The trial court dismissed the mandamus action with prejudice because mandamus is not the appropriate remedy to appeal quasi-judicial site plan decisions.  Mandamus is appropriate to compel ministerial acts only.  The Third District Court of Appeal upheld the dismissal affirming that petitions for writ of certiorari, not mandamus, are the appropriate mechanism to appeal a denial of a site plan.

This case was again appealed to the Third DCA after the trial court determined that the developer’s mandamus action against the Village was frivolous under Section 57.105, Florida Statutes, and awarded the Village attorney’s fees as sanctions.  The developer argued that his mandamus case was brought in good faith and in attempt to have federal case law on mandamus actions applied in a Florida State court.  The Third DCA held that the developer’s arguments did not demonstrate the level of frivolousness or lack of good faith to warrant imposition of attorney’s fees under Section 57.105.  Therefore, the Third DCA reversed the award of attorney’s fees in favor of the Village.

2. Ocean Concrete, Inc. v. Indian River County, Bd. of County Commissioners, 2018 Fla. App. LEXIS 3647, 2018 WL 1313420 (Fla. 4th DCA 2018). Bert J. Harris, Jr. Act; takings.

In 2002, a developer sought to develop a concrete batch plant. In 2004, the developer contracted to purchase a piece of property for $575,000. He and his engineer attended a meeting with Indian River County (“County”) planning staff where staff represented that a concrete batch plant was a permitted use as a matter of right under the zoning code. The developer and his engineer left the meeting believing that the development of the plant was feasible and that none of the feedback from the planning staff would prohibit development. Based on the foregoing, the developer purchased the property.

In 2005, the developer filed a site plan application for review by the County's Technical Review Committee ("TRC"). The TRC’s written response listed several "discrepancies" but noted that a concrete batch plant was a permissible use of the property as a matter of right and that since the discrepancies were not significant, a second TRC was not required. After letting that site plan lapse, the developer filed a new site plan application in December 2006. The TRC issued another discrepancy letter which again noted that the "site is zoned IL, Light Industrial. Concrete batch plants are a use permitted by right in the IL district" and that "the discrepancies do not appear to be significant, therefore, no second TRC meeting will be required for reconsideration of the proposal." The developer continued to address the discrepancies but, as he did, the project began garnering resident opposition.

Based on resident opposition, the BCC directed planning staff to analyze the project and shortly thereafter, the County's planning director issued a memo recommending that the BCC change the zoning code to "restrict industrial uses such as concrete plants and paper mills that process large quantities of materials, produce dust and noise, and have outdoor activities to the IG (General Industrial) district." At its next meeting, the BCC voted to have the staff change the zoning code. Following the BCC's vote, County staff began amending the zoning code. During this time and unbeknownst to the developer, the county attorney and the planning director had discussions about whether the proposed zoning code change would apply to the Ocean Concrete project. After the attorney opined that the change would apply to the project, the Planning & Zoning Commission (“PZC”) voted to recommend approval of the zoning code changes. Thereafter, the BCC unanimously voted to adopt the amendments to the zoning code without making exceptions for projects that were grandfathered or that had vested rights.  Later on, the Community Planning Director made a specific finding that the developer’s site plan had no vested rights under the old code and therefore, the site plan application was denied.

The developer sued the County for, among other things, violation of the Bert J. Harris Act.  After trial, a final judgment was entered in favor of the County on all claims.  The developer thereafter filed an appeal.  On appeal, the Fourth District Court of Appeal reversed the final judgment in favor of the County on the Bert J. Harris Act.  The Fourth DCA held that there was a violation of the Act and remanded the case for a trial on damages suffered by the developer.  The Court held that the trial court erred in finding that the concrete batch plant was a speculative use under the Bert J. Harris Act because the plant was a permitted use under the zoning code at the time of government action.  The Fourth DCA noted that the plain language of the Harris Act is clear—a "non-speculative use" analysis really only comes into play when a party is arguing that it may have been able to use its land in the future for a purpose not expressly provided for by the zoning code at the time of the government action.  Here, the use was expressly provided for in the zoning code.  The Fourth DCA also held that the trial court erred in finding that the developer failed to demonstrate a “reasonable, investment-backed expectation” regarding the plant.  The plant was a permitted use under the zoning code and there was evidence presented at trial that it was feasible to build.  Additionally, the County led the developer to believe that approval was inevitable throughout the site plan approval process.  The fact that the overall undertaking may have been expensive and a significant task did not invalidate the developer’s reasonable investment-backed expectations.