DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BOCA CENTER AT MILITARY, LLC, a foreign limited liability company,
CP OTC, LLC, a foreign limited liability company, and
CP BOCA PLAZA, LLC, a foreign limited liability company,
Appellants,
v.
CITY OF BOCA RATON,
Appellee.
No. 4D19-2736
[February 3, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Jr., Judge; L.T. Case No. 50-2018-CA-
013466-XXXX-MB.
Henry B. Handler, William J. Berger, and David K. Friedman of Weiss,
Handler & Cornwell, P.A., Boca Raton, for appellants.
Laura K. Wendell and Daniel L. Abbott of Weiss Serota Helfman Cole &
Bierman, P.L., Fort Lauderdale, for appellee.
FORST, J.
Appellants Boca Center at Military, LLC, CP OTC, LLC, and CP Boca
Plaza, LLC, the owners of several properties within the Midtown area of
Boca Raton (“the subject properties”), appeal from the trial court’s final
order dismissing with prejudice their cause of action against Appellee, the
City of Boca Raton (“the City”). Appellants’ complaint alleged that the
City’s actions inordinately burdened their existing use of the subject
properties so as to require compensation under the Bert J. Harris Jr.
Private Property Rights Protection Act, section 70.001, Florida Statutes
(2018) (“the Bert Harris Act” or “the Act”).
The City responded that: (1) Appellants had not satisfied the Act’s pre-
suit notice requirements because they had changed their theory of
recovery and alleged new claims in their complaint as opposed to those
delineated in their pre-suit “Notice of Claim”; (2) no law or regulation had
been “applied” to the subject properties (because the City had failed to
either provide notice of the law’s enactment or formally deny a written
request submitted by the property owners for development or variance);
and (3) the City did not take an action that burdened an existing use of
the subject properties. The trial court agreed with the City on all three
grounds, and dismissed Appellants’ complaint with prejudice.
We need not address the trial court’s decision to dismiss the complaint
with prejudice as it relates to the failure to satisfy the pre-suit notice
requirements or to the failure to establish that a law or regulation had
been “applied” to the subject properties. As we conclude that dismissal of
Appellants’ complaint with prejudice was appropriate with respect to their
contention that the City took actions which newly burdened an existing
use of the subject properties, and that an amended complaint on this point
would be futile, we affirm.
Background
As noted above, the properties that are the subject of this litigation are
located within the Midtown area of the City. Before 2010, Midtown was
zoned for office, commercial and retail development, and had, in fact, been
used only for these purposes. In 2010, the City amended its
Comprehensive Plan to assign the area in which the subject properties
were located a Planned Mobility (“PM”) future land use designation, which
“may incorporate in addition to those permitted and conditional uses
authorized by the underlying zoning district regulations [already] in effect
. . . a range of uses such as commercial, office, financial institutions,
health care, residential, hotel, recreational, educational, community and
cultural facilities.” (emphasis added). Despite this amendment to the
City’s Comprehensive Plan, no actions were taken to change the actual
zoning of this area.
In 2014, four years after the City amended the comprehensive plan to
include a PM designation, Appellants acquired and became the owners of
the subject properties. At the time, there were no zoning regulations in
place permitting residential use on the properties at any level of density.
In early 2018, the City voted to postpone indefinitely the consideration
of supplemental land development regulations (“LDRs”). Such zoning
regulations, if adopted, would for the first time have allowed multi-family
residential development on the subject properties. This action (or inaction)
led Appellants to file pre-suit Notices of Claim, pursuant to section
70.001(4)(a). These Notices alleged that the City’s decision to postpone
enactment of LDRs “inordinately burdened” the subject properties. In
response, the City informed Appellants that, “notwithstanding that the
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City has taken no ‘action’ required for [Appellants] to state a claim under
the Act, the City hereby offers ‘no changes to the action of the government
entity.’” Appellants then filed their original Bert Harris Act complaint
against the City, in October 2018.
In January 2019, the City adopted new zoning regulations for the
Midtown area (including the area encompassed by the subject properties),
which reinforced its decision not to rezone for residential occupancy.
These regulations maintained the same zoning as had pre-existed the
Comprehensive Plan amendment. Specifically, the regulations continued
to allow for commercial, office and retail use of the subject properties but
did not provide for residential development.
Addressing the City’s recent actions and its motion to dismiss
Appellants’ original complaint, an amended complaint was filed in April
2019. After recounting the City’s actions/inaction since the 2010
Comprehensive Plan amendment, the complaint alleged:
The City’s actions alleged in the Amended Complaint
inordinately burden an “existing use” of the Subject Properties
(“existing use” defined as in § 70.001(3)(b)2., Fla. Stat.) in that,
by them, the City has directly restricted or limited the use of
the Subject Properties such that Plaintiffs are permanently
unable to attain the reasonable, investment-backed
expectation for the existing use of the Subject Properties as a
whole or that Plaintiffs are left with existing or vested uses
that are unreasonable such that Plaintiffs bear permanently a
disproportionate share of a burden imposed for the good of the
public, which in fairness should be borne by the public at
large.
The City’s actions prevent Plaintiffs from receiving the
benefit of the more favorable residential use applicable to the
PM land use designation and inordinately burden the Subject
properties.
The City filed a motion to dismiss the amended complaint. The trial
court, in a detailed order, granted the motion, dismissing the amended
complaint with prejudice. This appeal followed.
Analysis
A trial court’s ruling on a motion to dismiss is subject to de novo review.
See, e.g., Pillay v. Public Storage, 284 So. 3d 566, 568 (Fla. 4th DCA 2019)
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(“Orders granting motions to dismiss for failure to state a claim are
reviewed de novo.”) (citing Regis Ins. Co. v. Miami Mgmt., Inc., 902 So. 2d
966, 968 (Fla. 4th DCA 2005)); M & H Profit, Inc. v. City of Panama City, 28
So. 3d 71, 74 (Fla. 1st DCA 2009) (“We consider whether the trial court’s
order dismissing the case for failure to state a cause of action is correct as
a matter of law.”).
Determinations under the Bert Harris Act that a claimant has an
existing use of the real property are conclusions of law and we review such
conclusions de novo. City of Jacksonville v. Coffield, 18 So. 3d 589, 594
(Fla. 1st DCA 2009).
The Bert Harris Act “provides for relief, or payment of compensation,
when a new law, rule, regulation, or ordinance of the state . . . unfairly
affects real property.” § 70.001(1), Fla. Stat. (2018). The Act expressly
states that it is predicated on “specific action of a governmental entity
[that] has inordinately burdened an existing use of a real property or a
vested right to a specific use of real property . . . .” § 70.001(2), Fla. Stat.
(2018). For purposes of the Bert Harris Act, “[t]he term ‘action of a
governmental entity’ means a specific action of a governmental entity
which affects real property, including action on an application or permit.”
§ 70.001(3)(d), Fla. Stat. (2018) (emphasis added). “[I]nordinate burden”
and “inordinately burdened” are defined as “an action of one or more
governmental entities [that] has directly restricted or limited the use of real
property such that the property owner is permanently unable to attain the
reasonable, investment-backed expectation for the existing use of the real
property or a vested right to a specific use of the real property . . . .” §
70.001(3)(e)1., Fla. Stat. (2018) (emphasis added).
Thus, by its express terms, the Act protects against governmental
action rather than government inaction. Specifically, the Act provides a
mechanism to remedy burdens created by the enactment of new
regulations, ordinances, etc.—not the refusal to enact new laws or where
the governmental entity has taken no action and instead has maintained
the already established zoning restrictions.
However, Appellants rely on the Act’s definition of “existing use” to
include “[a]ctivity or such reasonably foreseeable, nonspeculative land
uses which are suitable for the subject real property and compatible with
adjacent land uses and which have created an existing fair market value
in the property greater than the fair market value of the actual, present
use or activity on the real property.” § 70.001(3)(b)2., Fla. Stat. (2018).
They argue that the 2010 amendments to the Comprehensive Plan created
a reasonable expectation that the subject properties would be zoned for
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residential use, creating an expectation that Appellants “could develop the
[subject properties] with an economically-viable, multi-family residential
land use density of up to 20 units per acre of gross land area which would
allow up to 1,274 multi-family units.” Thus, Appellants maintain that the
City’s subsequent inaction – namely, its decision to not fully adopt the
goals of the amended Comprehensive Plan – constituted an “inordinate[]
burden” on the Appellants’ land use.
As noted above, the subject properties were not and had never been
zoned for residential development, and the 2010 amendment to the
Comprehensive Plan merely expressed an expectation that, in the future,
residential development may be permitted, as the Plan “encourages” (and
therefore does not require) “a mixture of land uses.” Per the
“Mandatory/Permissive Canon,” the word “may” is commonly treated as a
permissive word granting discretion. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 112 (2012); Brooks
v. Anastasia Mosquito Control Dist., 148 So. 2d 64, 66 (Fla. 1st DCA 1963)
(“It must be assumed that the Legislature of this state must know the plain
and ordinary meaning of words and that the [word] ‘may’ when given its
ordinary meaning, denotes a permissive term rather than the mandatory
connotation of the word ‘shall.’”).
It is a leap in logic to argue that the Comprehensive Plan’s permissive
language made it “reasonably foreseeable” and “nonspeculative” to assume
that the subject properties would be zoned by a specific date for residential
use. A property owner does not “reasonably foresee” the enactment of land
development regulations authorizing whatever use it hopes to make of its
property in the future. As the Florida supreme court has declared:
A comprehensive plan only establishes a long-range
maximum limit on the possible intensity of land use; a plan
does not simultaneously establish an immediate minimum
limit on the possible intensity of land use. The present use of
land may, by zoning ordinance, continue to be more limited
than the future use contemplated by the comprehensive plan.
Bd. of Cnty. Comm’rs of Brevard Cnty. v. Snyder, 627 So. 2d 469, 475 (Fla.
1993) (emphasis added) (quoting City of Jacksonville Beach v. Grubbs, 461
So. 2d 160, 163 (Fla. 1st DCA 1984)).
Thus, per Snyder, even if the Comprehensive Plan explicitly authorized
development for residential use (which is not the case here, as the plan
merely contemplated a “range of uses”), the actual permitted uses of the
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subject properties would nevertheless be confined to those the City chose,
by legislative action, to expressly permit in the zoning code. The PM future
land use designation granted no right to residential development and did
not require the City to enact land development regulations establishing
such a right by permitting residential uses on the subject properties.
Snyder does not hold that a government must adopt land development
regulations authorizing all uses that are consistent with the
comprehensive plan. “[T]he comprehensive plan is intended to provide for
future use of land . . . .” Id. at 475. “[T]he fact that a proposed use is
consistent with the plan means that the planners contemplated that the
use would be acceptable at some point in the future.” Id. at 476 (emphasis
added); see also Citrus County v. Halls River Dev., Inc., 8 So. 3d 413, 421
(Fla. 5th DCA 2009) (“Zoning involves the exercise of discretionary powers
within limits imposed by the comprehensive plan.” (emphasis added)).
Conclusion
Appellants do not contend that the City adopted “any law, rule,
regulation or ordinance” in relation to the subject properties that burdened
their use as a residential development. Rather, they allege the opposite—
that the City affirmatively chose not to authorize residential use of property
within the subject properties’ zone, and that this “inaction” inordinately
burdened Appellants’ expectation that the subject properties would, for
the first time, be zoned for residential use.
However, the 2010 Comprehensive Plan merely gave the City a green
light to consider permitting “mixed use development” of the subject zone
at some unspecified time in the future, and stated that residential uses (of
an unspecified density) was one of several possible property uses that may
be approved at an unspecified time in the future. Thus, the trial court
correctly determined that none of the post-2010 City ordinances took away
existing development opportunities for the subject properties, real or
“reasonably foreseeable,” attributable to the 2010 amended
Comprehensive Plan. These laws and regulations merely preserved the
status quo zoning on the subject properties. As Appellants’ factual
allegations do not state an actual cause of action under the Bert Harris
Act, we affirm, finding it unnecessary to address the other grounds on
which the trial court rested its order of dismissal.
Affirmed.
CIKLIN and KUNTZ, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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