CITY OF KEY WEST, APPELLANT,
v.
DONALD BERG, APPELLEE
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The City of Key West appealed an interlocutory order from a bench trial in which the trial court found liability on a regulatory taking claim. The appellate court reversed, holding that the plaintiff's regulatory taking claim was not ripe for judicial determination because the plaintiff had failed to apply to the city for a development permit under the challenged comprehensive plan.
The regulatory taking claim is not ripe for judicial determination because Berg failed to apply for development rights under the plan. A prerequisite showing for a regulatory taking claim is that the regulation has deprived the owner of substantially all economically beneficial use, which cannot be determined without exhausting administrative remedies, including applying for a beneficial use exception.
[1] An interlocutory order determining the issue of liability in favor of a party seeking affirmative relief is appealable.
[2] A regulatory "taking" claim is not ripe for judicial determination when the property owner has not applied to the relevant governmental entity for development under its r…
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Join FLexlaw to unlock all legal intelligence“it cannot be determined at this time whether the subject Plan has deprived the plaintiff of substantially all economically beneficial use of the property, a prerequisite showing in order to establish plaintiffs regulatory "taking" claim”
Establishes the core requirement for ripeness—showing actual deprivation of all economically beneficial use—which cannot be done without first seeking administrative relief
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Join FLexlaw to unlock all legal intelligenceThe City of Key West adopted a 1994 Comprehensive Plan that restricted wetlands development. The plan's eight policies would prevent any development o…
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PER CURIAM.
This is an appeal by the defendant City of Key West from an adverse interlocutory order entered after a non-jury trial in which the trial court ruled in favor of the plaintiff Donald Berg on the issue of liability on a regulatory “taking” claim in an inverse condemnation action. We have jurisdiction to entertain this interlocutory appeal because the non-final order appealed from “deter-minéis] ... the issue of liability in favor of a party seeking affirmative relief.” Fla. R.App.P. 9.130(a)(3)(C)(iv); see Art. V, § 4(b)(1), Fla. Const.; Broward County v. Wakefield, 636 So. 2d 123 (Fla. 4th DCA 1994); Division of Admin., State of Fla. Dep’t. of Transp. v. Mobile Gas Co., 427 So. 2d 1024, 1025 (Fla. 1st DCA), rev. denied, 437 So. 2d 677 (Fla.1983).
Without burdening this opinion with the complex facts of the instant case, suffice it to say that we conclude, contrary to the trial court’s determination, that the plaintiffs regulatory “taking” claim is not ripe for judicial determination in this action. The trial court found that the defendant City of Key West’s 1994 Comprehensive Plan [Plan] restricts the development of wetlands in the City of Key West to such an extent that: (1) eight of the policies stated in the Plan would prevent any development of plaintiffs wetlands property, and (2) at best, the Plan would allow the construction of only one homesite on plaintiffs property, amounting to a market value of $100,000 if built facing the ocean; in addition, the Plan allows the City to grant a “beneficial use” exception to an applicant under limited circumstances when the literal application of the Plan’s provisions would deny all economically reasonable or viable use of the subject property. The plaintiff, however, has made no application to the City of Key West to develop his property under the provisions of this Plan, and, thus, it cannot be determined at this time whether the subject Plan has deprived the plaintiff of substantially all economically beneficial use of the property, a prerequisite showing in order to establish plaintiffs regulatory “taking” claim; in this respect, we do not agree with the trial court that it would be futile for the plaintiff to make such an application. City of Jacksonville v. Wynn, 650 So. 2d 182, 187 (Fla. 1st DCA 1995); Estate of Tippett v. City of Miami, 645 So. 2d 533 (Fla. 3d DCA 1994), rev. dismissed, 652 So. 2d 819 (Fla.1995); Tinnerman v. Palm Beach County, 641 So. 2d 523 (Fla. 4th DCA 1994). The order under review is reversed, and the cause is remanded to the trial court to (1) dismiss the regulatory “taking” claim as not being ripe for judicial determination, and (2) to conduct further proceedings on the “taking” by flooding claim which is still pending in the instant action.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Taylor v. Vill. OF N. Palm Beach, 659 So. 2d 1167 (Fla. 4th DCA 1995)…ent would be futile, especially in light of the fact that North Palm Beach has already amended the plan to expand the available uses by adding single-family residential units as an additional permissible use. See Tinnerman; City of Key West v. Berg, 655 So. 2d 196 (Fla. 3d DCA 1995). Accordingly, we agree that landowner’s takings claim, as applied to her property, is not ripe for review. CONCLUSION While the scope of permissible zoning may have been curtailed over a twenty-year period, the 1989 plan does no…
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Osceola Cnty. v. Best Diversified, Inc., 830 So. 2d 139 (Fla. 5th DCA 2002)…wing non-final orders finding liability in inverse condemnation suits have based their jurisdiction on rule 9.130(a)(3)(C)(iv). For example, Palm Beach County v. Cove Club Investors Ltd., 692 So. 2d 998 (Fla. 4th DCA 1997); City of Key West v. Berg, 655 So. 2d 196 (Fla. 3d DCA 1995); Broward County v. Wakefield, 636 So. 2d 123 (Fla. 4th DCA 1994); and Pinellas County v. Brown, 450 So. 2d 240 (Fla. 2d DCA 1984), allowed the appeals to go forward, finding jurisdiction pursuant to rule 9.130(a)(3)(C)(iv), which…
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Jimmy T. and Nancy A. Bauknight v. Monroe Cnty., 994 So. 2d 362 (Fla. 3d DCA 2008)…are deprived of all beneficial use may secure relief through an efficient nonjudicial procedure.” § 9.5-161, Monroe County, Fla., Code (1986). The owners could have applied at any time before 2002, but failed to do so. See City of Key West v. Berg, 655 So. 2d 196, 196 (Fla. 3d DCA 1995) (discussing availability of beneficial use exception). When applications for beneficial use were filed in 2002, relief was provided to the owners. As the delay in obtaining relief was attributable to the owners themselves, th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The City OF Jacksonville v. Wynn, 650 So. 2d 182 (Fla. 1st DCA 1995)
- Laszlo Madari v. Gabor N. Bozsoky & the Fla. Unemployment Appeals Comm'n, 641 So. 2d 523 (Fla. 3d DCA 1994)
- Tinnerman v. Palm Beach Cnty., 641 So. 2d 523 (Fla. 4th DCA 1994)
- Est. OF Mary Elizabeth Whitney Tippett v. City OF Miami, 645 So. 2d 533 (Fla. 3d DCA 1994)
- Division of Administration v. Mobile GAS Co., Inc., 427 So. 2d 1024 (Fla. 1st DCA 1983)
- Broward Cnty. v. Wakefield, 636 So. 2d 123 (Fla. 4th DCA 1994)