PINELLAS COUNTY, FLORIDA, APPELLANT,
v.
PETER BROWN AND J. WARREN HUGHES, APPELLEES

Fla. 2d DCA | 1982-07-07
No. 81-1463
OTT, C.J., and SCHOONOVER, J., concur.
420 So. 2d 308 Florida District Court of Appeal, Second District (1982) Positive Treatment
Cited by 11 cases

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Synopsis

Pinellas County denied a building permit to landowners Brown and Hughes for a use permitted by the existing zoning ordinance, citing a conflict with the county's comprehensive land use plan. The court reversed a damages judgment, holding that the county's temporary denial of the permit did not constitute a compensable taking under inverse condemnation doctrine.


Holding

The county's denial of the building permit did not constitute a compensable taking. The appellees were not completely deprived of all beneficial uses of the property—only of their particular requested use—and the deprivation was temporary. The court held that irrespective of whether appellees were entitled to a permit, the original denial and attendant delay did not rise to the level of a taking.


Headnotes

[1] A government's denial of a building permit, even if it temporarily deprives landowners of a specific permitted use, does not constitute a taking if the landowners are not…

[2] A temporary denial of a building permit, pending resolution of a conflict between a zoning ordinance and a comprehensive land use plan, does not constitute a taking if th…

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Key Quotes

“In order to establish a taking, appellees must show that the county's actions have substantially deprived them of all beneficial uses of the property, as compared with merely impairing its use.”

States the legal standard for inverse condemnation claims, distinguishing between deprivation of all uses versus impairment of particular uses.

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Facts & Procedural History

Brown and Hughes purchased land zoned M-1 (industrial) in 1978 and applied for a permit in May 1979 to build a manufacturing plant for their yacht bus…

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Opinion of the Court
SCHEB, Judge.

SCHEB, Judge.

Appellant, Pinellas County, challenges a judgment for damages awarded against it because it withheld issuing a building permit to appellee landowners. We reverse.

On May 10, 1979, appellees Brown and Hughes applied to the county for a permit to erect a manufacturing plant for their yacht business. When appellees purchased their land in 1978, it was zoned M-l, an industrial classification which permitted their proposed use. Although there had been no change in the zoning, the county denied the permit because its comprehensive land use plan, adopted in 1974, did not sanction manufacturing uses on appellees property. The county’s policy in this situation was to withhold the permit until the conflict was resolved.

Appellees were informed of the policy and proceeded to petition the-county to amend its plan to allow their request. On July 24, 1979, the county denied the request and directed its staff to initiate rezoning of appellees’ parcel to C-3. This is a commercial zoning category in harmony with the land use plan but it would not permit appel-lees’ proposed use.

Appellees sued the county seeking injunctive relief and damages. During the litigation on November 15, 1979, the county attorney represented to the court that the county had determined to revise the land use plan to accommodate appellees’ request and that the permit would be issued. That point was then moot so the litigation proceeded only on the count seeking damages which appellees claimed on the basis of the county’s initial denial and its attendant delay in approving their application for a permit. Before the appellees were assured of receiving their building permit, they purchased another suitable parcel and erected their plant thereon. The county’s acts finally became official on February 20, 1980, when the Pinellas County Planning Council amended the countywide plan to reflect the change to an industrial classification of appellees’ property.

In a nonjury trial the court awarded appellees $116,077.15. The county’s motion for rehearing was denied and this appeal ensued. The court made no specific findings of fact or conclusions of law as to the basis of its award. However, both parties argue this appeal in light of whether there has been a taking by the county compensable under the theory of inverse condemnation.

Did the county’s denial in issuing a building permit for a use permitted by its zoning ordinance while it resolved the conflict between its ordinance and comprehensive land use plan constitute a taking, thereby rendering the county liable to the appellees for damages? We think not.

At the outset, we recognize that the basic rights arising from ownership of property must always be balanced against the government’s power to protect and regulate in the interest of public health, safety, morals, and general welfare. Thus, the zoning of land and the attendant administration of zoning ordinarily gives no rise to any claim for compensation by owners against the zoning authority.

Appellees, however, seek to sustain their judgment for damages on the ground that the county’s action precluded them from using their property for one of the uses permitted under the applicable zoning ordinance. The county’s action, appellees say, was equivalent to the county condemning their property under its power of eminent domain.

Eminent domain is the exercise of the government’s power to take private property for public purposes. This sovereign power is limited by our constitution, which states that any taking of private property for a public purpose must be with full compensation to the owner. Art. X, § 6, Fla. Const. (1968). Ordinarily, a public body seeking to take private land for the public good will exercise its power to condemn through formal proceedings. On the other hand, if a public body takes private property without initiating formal proceedings, the injured property owner may bring an action in inverse condemnation. City of Jacksonville v. Schumann, 167 So. 2d 95 (Fla. 1st DCA 1964), cert. denied, 172 So. 2d 597 (Fla.1965). Of course, the action will not lie unless there has been a taking, and the question of what constitutes a taking is a matter for judicial determination depending upon the facts and circumstances of each case. See State Department of Health & Rehabilitative Services v. Scott, 418 So. 2d 1032 (Fla. 2d DCA 1982).

There is no settled formula for determining when the valid exercise of police power stops and an impermissible encroachment on private property rights begins. Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla.1981). However, the most common cases of inverse condemnation involve an actual physical invasion and in these instances the courts more readily find a taking to have occurred. See 21 Fla.Jur.2d Eminent Domain 65 (1980). Nevertheless, there are instances where overly restrictive regulations and actions can result in a taking. See Askew v. Gables-by-the-Sea, Inc., 333 So. 2d 56 (Fla. 1st DCA 1976), cert. denied, 345 So. 2d 420 (Fla.1977).

In order to establish a taking, appel-lees must show that the county’s actions have substantially deprived them of all beneficial uses of the property, as compared with merely impairing its use. State Department of Transportation v. Donahoo, 412 So. 2d 400 (Fla. 1st DCA 1982); Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla.), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979).

Assuming that appellees were entitled to a permit since existing zoning allowed it, and further assuming that the conflict between the ordinance and the comprehensive plan did not constitute a pending change as contemplated by Smith v. City of Clearwater, 383 So. 2d 681 (Fla. 2d DCA 1980), cert. dismissed, 403 So. 2d 407 (Fla.1981), we do not think that the county’s denial constituted a taking of appellees’ land. First, appellees were not completely deprived of all beneficial uses of their property; they were only deprived of their particular requested use. Appellees did not seek to use their property for commercial uses which presumably would have been approved. Second, appellees were only deprived temporarily as the county stipulated that it would issue the permit even before a judicial determination was reached.

We therefore hold that irrespective of whether appellees were entitled to a permit, the county’s original denial and attendant delay in approving their application did not rise to the level of a taking.

Accordingly, we vacate the judgment against the county and remand for appropriate proceedings.

OTT, C.J., and SCHOONOVER, J., concur.


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Citator

Cited By

  • …ion suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation. See United States v. Certain Parcels of Land in Monroe County, 509 F. 2d 801, 803 (5th Cir.1975); Pinellas County v. Brown, 420 So. 2d 308 (Fla. 2d DCA 1982), petition for review denied, 430 So. 2d 450 (Fla.1983). The trial court’s determination of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, s…
  • Schick v. Fla. Dep't OF Agric., 504 So. 2d 1318 (Fla. 1st DCA 1987)
    ….2d 377 (1979). Thus, a cause of action for inverse condemnation will lie against a government agency, which by its conduct or activities, has taken private property without a formal exercise of the power of eminent domain. Pinellas County v. Brown, 420 So. 2d 308, 309 (Fla. 2d DCA 1982), petition for review denied, 430 So. 2d 450 (Fla.1983). It is well settled that an action for inverse condemnation is available only in those instances where the “taking” has effectively deprived the owner of all reasonable…
  • State v. Mid-Florida Growers, Inc., 505 So. 2d 592 (Fla. 2d DCA 1987)
    …ht to just compensation. This appeal ensued. Whether regulatory action of a public body amounts to a taking must be determined from the facts of each case. Pinellas County v. Brown, 450 So. 2d 240, 242 (Fla. 2d DCA 1984); Pinellas County v. Brown, 420 So. 2d 308, 309 (Fla. 2d DCA 1982). The trial court’s determination of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by substantial, competent evidence. Faison v. Division of Adminis…

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