THOMAS C. BURNHAM AND NEDRA BURNHAM, TRUSTEES, APPELLANTS,
v.
MONROE COUNTY, ETC., ET AL., APPELLEES

Fla. 3d DCA | 1999-07-28
No. 98-2372
Before JORGENSON, LEVY, and FLETCHER, JJ.
738 So. 2d 471 Florida District Court of Appeal, Third District (1999)

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Synopsis

Property owners in Monroe County challenged a growth management ordinance (ROGO) that awards building permits based on points for sustainable design features, claiming inverse condemnation. The court affirmed that no taking occurred because the owners retained beneficial use of their property and could obtain permits by making minor plan modifications.


Holding

No taking occurred because the property owners retained beneficial use of their land and could obtain building permits by making minor modifications to their construction plans. The ROGO ordinance is constitutional because it substantially advances legitimate state interests in water conservation, windstorm protection, energy efficiency, growth control, and habitat protection.


Headnotes

[1] A regulation constitutes a taking by inverse condemnation only if it denies all economically beneficial or productive use of land.

[2] A property owner must demonstrate a complete deprivation of all economically beneficial or productive use of their land to establish a claim for inverse condemnation.

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Key Quotes

“To establish a taking by inverse condemnation, a plaintiff must show that the challenged regulation denies all economically beneficial or productive use of land.”

Establishes the legal standard for inverse condemnation claims, citing Lucas v. South Carolina Coastal Council

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Facts & Procedural History

The Burnhams owned property in Monroe County since 1967 and submitted a building permit application in July 1992, after Monroe County's Rate of Growth…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Property owners in Monroe County appeal from a final judgment declaring that Monroe County had not taken their property in an inverse condemnation proceeding, and that Monroe County’s “Rate of Growth Ordinance” is constitutional. We affirm.

The Burnhams have owned their property in Monroe since 1967; they submitted their application for a building permit in July, 1992, after Monroe County’s “Rate of Growth Ordinance”, commonly referred to as “ROGO” became effective. See Monroe County, Fla., Ordinance 16-1992 (June 23, 1992). Under ROGO, Monore County awards points for certain design features included in building plans1; Building permits are allocated to applicants who have accumulated the most points.

The owners’ construction plans did not include enough of the features that ROGO sought to encourage to entitle them to a building permit. The County repeatedly informed them that they could obtain a ROGO allocation, and the ensuing building permit, at any time simply by incorporating simple changes to their plans. At no time did the owners make those changes; they instead chose to challenge the ordinance and sued the County for inverse condemnation. The trial court ruled that no taking had occurred because the County had not deprived the owners of all beneficial use of their property. The trial court further found that the ordinance was constitutional. We agree.

It is clear from the record that no taking occurred; all that the owners had to do in order to obtain the necessary points for their building permit was make a few minor changes to their plans. To establish a taking by inverse condemnation, a plaintiff must show that the challenged regulation denies all economically beneficial or productive use of land. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Tampa-Hillsborough County v. A.G.W.S. Corp., 640 So. 2d 54 (Fla. 1994); Jacobi v. City of Miami Beach, 678 So. 2d 1365 (Fla. 1996). The owners made no such showing in this case.

Moreover, the trial court correctly determined that the ROGO ordinance was constitutional, as it substantially advances the legitimate state interests of promoting water conservation, windstorm protection, energy efficiency, growth control, and habitat protection. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

AFFIRMED.

. Building features for which points are awarded include solar hot water heaters; high-efficiency air conditioning systems; hurricane-strength structural windloads; and low-flow plumbing fixtures.


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