PINELLAS COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLANT,
v.
DALE W. ASHLEY, APPELLEE

Fla. 2d DCA | 1985-02-01
No. 84-1801
SCHEB, A.C.J., and CAMPBELL, J., concur.
464 So. 2d 176 Florida District Court of Appeal, Second District (1985) Positive Treatment
Cited by 10 cases

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Synopsis

Pinellas County appeals from a judgment finding it liable for inverse condemnation after it denied a landowner's building permit application due to a conflict between the property's zoning classification and the county's comprehensive land use plan. The court reverses, holding that the temporary denial of a permit for a particular requested use does not constitute a compensable taking when the property retains other beneficial uses and the denial is temporary.


Holding

The county's actions constituted a temporary impairment of use rather than a temporary taking requiring compensation. To establish a taking, a property owner must show that the county's actions substantially deprived them of all beneficial uses of the property, not merely the particular requested use.


Headnotes

[1] A governmental entity's denial of a building permit for a use permissible under its zoning ordinance, coupled with a reasonable delay to resolve conflicts between the ord…

[2] To establish a taking, a property owner must demonstrate a substantial deprivation of all beneficial uses of the property, not merely an impairment of a particular use.

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Key Quotes

“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.”

Establishes the legal standard for inverse condemnation claims—deprivation of all beneficial uses, not just a particular use

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Facts & Procedural History

Dale Ashley sought a land use permit to develop his property for commercial use (C-3 zoning), but Pinellas County denied the permit because the proper…

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Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

Pinellas County takes this appeal from a nonfinal order which determined liability in favor of appellee landowner who sought compensation for inverse condemnation of his property. We reverse on the authority of our decision in Pinellas County v. Brown, 420 So. 2d 308 (Fla. 2d DCA 1982), petition for rev. denied, 430 So. 2d 450 (Fla.1983).

Brown concerned factual circumstances similar to those in the case before us. There we held that the county’s denial of a building permit for a use permissible only under its zoning ordinance and the attendant reasonable delay occurring while it resolved the conflict between the ordinance and its comprehensive land use plan1 did not rise to the level of a taking. In doing so, this court said:

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. [Citations omitted.]

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. [Emphasis supplied.]

Id. at 310.

In the case before us, appellee has only demonstrated that he was deprived of his particular requested use.2 He has not established that the county’s actions manifested an attempt to appropriate his property, even temporarily, or that he was deprived of all beneficial uses of his property during the period of conflict. Additionally, appellee was only deprived temporarily as the county resolved the conflict and rezoned the property to the residential use consistent with its comprehensive land use plan.

We note as well that the county’s denial of the requested permit while it resolved the conflict between its zoning ordinance and comprehensive land use plan was in accord with the enabling legislation. § 163.3194, Fla.Stat. (1983). Appellee here, as in Brown, at no time sought to use his property for a use consistent with the plan. Had appellee made such a request and had the county also denied that request (based upon its policy) then arguably the county’s actions would constitute a temporary taking. However, even in such a situation where a zoning ordinance or resolution is confiscatory, no inverse condemnation is necessary; the relief available is a judicial determination that the ordinance or resolution is unenforceable and must be stricken. See Dade County v. National Bulk Carriers, 450 So. 2d 213 (Fla.1984); Grady v. Lee County, 458 So. 2d 1211 (Fla. 2d DCA 1984).

In view of the foregoing, the county’s actions constituted a temporary impairment of use rather than a temporary taking for which compensation should be awarded. Accordingly, the partial final judgment is reversed and the cause is remanded with directions to enter judgment for the appellant.

SCHEB, A.C.J., and CAMPBELL, J., concur. . Appellant adopted its land use plan pursuant to the Local Government Comprehensive Planning Act of 1975, section 163.3161, Florida Statutes (1983).

. Appellee applied for a land use permit to utilize the property in accordance with its current C-3 (commercial) zoning classification. The property was designated on the county's land use plan for low-density residential use. When the county denied appellee's application, it stated that, pursuant to its policy, "no land use permit may be issued in conflict with the Land Use Plan.” [Emphasis supplied.]


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Citator

Cited By

  • LEE Cnty. v. Morales, 557 So. 2d 652 (Fla. 2d DCA 1990)
    …d, the matter should be resubmitted to the zoning authorities to determine the proper zoning classification. Wood, 123 So. 2d at 744. Lastly, a zoning change cannot give rise to a cause of action for inverse condemnation. Pinellas County v. Ashley, 464 So. 2d 176, 177 (Fla. 2d DCA), review denied, 475 So. 2d 693 (Fla.1985); Grady v. Lee County, 458 So. 2d 1211, 1213 (Fla. 2d DCA 1984). Thus, even if the zoning ordinance were appropriately found to be confiscatory, appellees would not be entitled to a damage…
  • Assocs. OF Meadow Lake, Inc. v. City OF Edgewater, 706 So. 2d 50 (Fla. 5th DCA 1998)
    …zoning regulation prevented a property owner from having any reasonable use of his property. Interestingly, two years after Gutierrez, and before First English Evangelical, the author of the Gutierrez decision suggested in Pinellas County v. Ashley, 464 So. 2d 176 (Fla. 2d DCA), rev. denied, 475 So. 2d 693 (Fla.1985), that Florida does recognize a cause of action for a temporary taking (“[h]ad appellee made such a request and had the county also denied that request ... then arguably the county’s actions would…
  • Orange Cnty. v. R.G. Gardner and Eugene Bernard, 477 So. 2d 621 (Fla. 5th DCA 1985)
    …g, and a significant change in the applicable law. By itself, I think it constitutes a sufficient change to avoid the application of res judicata based on a pre-plan judgment. Wagner v. Baron, 64 So. 2d 267 (Fla.1953); see Pinellas County v. Ashley, 464 So. 2d 176 (Fla. 2d DCA 1985). However, I also think that the eight to ten years of nondevelopment of this property constitutes a sufficient change of circumstances in this case to avoid any res judicatd effect of the 1974 judgment. The property was drastical…

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