IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BREVARD COUNTY, FLORIDA,
Appellant,
v. Case No. 5D21-1809
LT Case No. 05-2014-CA-41947
WATERS MARK DEVELOPMENT
ENTERPRISES, LC,
Appellee.
________________________________/
Opinion filed September 9, 2022
Nonfinal Appeal from the Circuit Court
for Brevard County,
Curt Jacobus, Judge.
Dale A. Scott and Michael J. Roper, of
Roper, P.A., Orlando, for Appellant.
John H. Pelzer, Richard A. Epstein,
Jeffrey A. Backman and Roy Taub, of
Greenspoon Marder, LLP, Fort
Lauderdale, and Geoffrey A. Pette, of
Pette, P.A., Fort Lauderdale, for Appellee.
NARDELLA, J.
This appeal involves a claim under the Bert J. Harris, Jr., Private
Property Rights Protection Act (“Bert Harris Act” or “Act”), section 70.001,
Florida Statutes (2012). The Appellant, Brevard County (“County”), appeals
a summary judgment ruling for Appellee, Waters Mark Development
Enterprises, LC (“Waters Mark”) on the issue of liability under the Act.
Because the County came forward with sufficient evidence that Waters
Mark’s proposed development faced regulatory barriers, which, apart from
the County’s challenged action, could have barred the development, we
reverse the trial court’s entry of summary judgment for Waters Mark. The
County also appeals the denial of its competing motion for summary
judgment. The Court lacks jurisdiction over that ruling and, thus, we dismiss
that aspect of the appeal.
Undisputed Facts and Procedural History
In 2006, Waters Mark purchased land (“Property”) in Brevard County
with plans to develop a 90-unit residential subdivision covering
approximately 97 acres of the Property. At the time, the comprehensive
future land use plan (“comprehensive plan”) 1 permitted the building of one
residence per acre on the Property. Although Waters Mark’s proposed
1
A comprehensive plan is a statutorily mandated legislative plan to
control and direct the use and development of property within a county or
municipality. Citrus Cnty. v. Halls River Dev., Inc., 8 So. 3d 413, 420 (Fla.
5th DCA 2009). The plan is similar to a constitution for all future development
within the governmental boundary. Id. at 420–21. The plan is implemented
through zoning, which involves the exercise of discretionary powers within
the limits imposed by the comprehensive plan. Id. at 421.
2
development complied with that aspect of the comprehensive plan, it still
needed to apply for and obtain approval from the County and other agencies
to proceed.
The St. Johns River Water Management District (“District”) was among
the governmental agencies whose approval Waters Mark needed to develop
a residential subdivision on the Property. After a year of back-and-forth
between the District and Waters Mark, it appears important issues remained
unresolved. For example, it appears Waters Mark had yet to demonstrate
that the development would not affect water quality or impact the surrounding
wetlands. Without curing the concerns raised by the District, Waters Mark’s
application with the District languished, leading it to inform Waters Mark that
its application would be deemed abandoned if it did not timely move forward
in the process. Eventually, Waters Mark abandoned its first attempt to
develop the Property.
More than a year after Waters Mark abandoned its first application, the
County adopted Ordinance 09-21 (“Ordinance”). The Ordinance amended
the comprehensive plan by lowering the developmental density for the
Property and surrounding land. The new developmental density allowed
only one residence per 2.5 acres.
3
Approximately three years after the Ordinance was adopted, Waters
Mark submitted a new application with the County for a similar subdivision.
Per the new application, Waters Mark sought to develop a similarly designed
84-unit residential subdivision covering approximately 97 acres of the
Property.
As part of the initial review of the second application, the County sent
Waters Mark a letter with several “pre-application review comments,”
including one that “disapproved” of the proposed development for exceeding
the new developmental density in the amended comprehensive plan
(“Comments Letter”). In apparent response to the Comments Letter and
without completing the other steps of the County’s application process,2
2 The application process for the construction of a residential
subdivision in Brevard County consists of three stages: 1) the preapplication
conference; 2) the construction plans and preliminary plat review; and 3) the
final plat review. Brevard Cnty., Fla., Land Dev. Regul. (“LDR”) § 62-
2805(a)(1) (“The first stage is the preapplication conference. This stage is
mandatory for the applicant, and allows the applicant to solicit comments
from the reviewing agencies on the proposed subdivision prior to submittal
and review of preliminary plat and construction plans.”); Id. at § 62-
2805(a)(2) (“The second stage is the construction plans and preliminary plat
review. The applicant formally submits construction plans and preliminary
plat for review and approval by the county reviewing agencies.”); Id. at § 62-
2805(a)(3) (“The third stage is final plat review. This stage follows
construction plans and the preliminary plat review and is the final stage
necessary before recording a plat. The applicant, after obtaining
construction plans and preliminary plat approval, may receive final plat
approval by the board.”).
4
Waters Mark discontinued its second effort to develop the Property and sent
a pre-suit notice to the County, claiming that its application of new density
requirements to Waters Mark’s second proposed development inordinately
burdened an existing use of the Property in violation of the Bert Harris Act.
Waters Mark filed suit. The County answered and asserted several
affirmative defenses, of which one is determinative in this interlocutory
appeal, namely, that regardless of the residential density allowed, Waters
Mark could not have developed its desired residential subdivision. This was
the issue at the heart of Waters Mark’s motion for summary judgment, with
each party offering evidence in support of its position. Without any mention
of the County’s responsive argument and the evidence on which it relied, the
trial court granted Waters Mark’s motion for summary judgment and denied
the County’s competing motion for summary judgment. This appeal
challenges both rulings.
The New Summary Judgment Standard
The Florida Supreme Court recently amended Florida Rule of Civil
Procedure 1.510 to conform with the federal summary judgment
standard. Fla. R. Civ. P. 1.510(a) (2021) (“The summary judgment standard
provided for in this rule shall be construed and applied in accordance with
the federal summary judgment standard.”).
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Under the amended rule, which applies to the orders being appealed,
summary judgment is appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Id. Looking to the federal summary judgment standard, an issue of fact is
“genuine” only if “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if the fact could affect the outcome of the lawsuit under the
governing law. Id.
The moving party bears the initial burden of identifying those portions
of the record demonstrating the lack of a genuinely disputed issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does
so, then the burden shifts to the non-moving party to demonstrate that there
are genuine factual disputes that preclude judgment as a matter of
law. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). To satisfy its
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To do so, the non-
moving party must go beyond the pleadings and “identify affirmative
evidence” that creates a genuine dispute of material fact. Crawford–El v.
Britton, 523 U.S. 574, 600 (1998).
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In determining whether a genuine dispute of material fact exists, the
court must view the evidence and draw all factual inferences therefrom in a
light most favorable to the non-moving party and must resolve any
reasonable doubts in that party’s favor. Skop v. City of Atlanta, 485 F.3d
1130, 1136 (11th Cir. 2007). Summary judgment should only be granted
“[w]here the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party[.]” Matsushita, 475 U.S. at 587.
We review the order granting summary judgment and issues involving
statutory interpretation de novo. Dean Wish, LLC v. Lee Cnty., 326 So. 3d
840, 845 (Fla. 2d DCA 2021), review denied, No. SC21-1529, 2022 WL
852956 (Fla. Mar. 23, 2022).
Waters Mark’s Motion for Summary Judgment
The County argues that the trial court erred by granting summary
judgment in favor of Waters Mark because there is a genuine dispute of
material fact as to whether the application of the lower density limitation
inordinately burdened an existing use of the Property. 3 In order to analyze
3
The County raised other arguments challenging the order granting
Waters Mark’s motion for summary judgment, but we need not address those
arguments because, as discussed in this decision, there are genuine issues
of material fact that preclude the entry of summary judgment in Waters
Mark’s favor.
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the County’s argument, we begin with the requirements of the Bert Harris
Act.
The Act provides a mechanism to compensate landowners whose
property is affected by government action not rising to the level of a taking.
§ 70.001(1), Fla. Stat. (2012).4 To prevail under the Act, a property owner
must prove that “a specific action of a governmental entity has inordinately
burdened an existing use of real property or a vested right to a specific use
of real property.” § 70.001(2), Fla. Stat. (2012).
An “existing use” is defined as “[a]ctivity or such reasonably
foreseeable, nonspeculative land uses which are suitable for the subject real
property . . . 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. (2012). Here, the County agrees
that under the old comprehensive plan Waters Mark had the ability to build
one residence per acre and therefore had an “existing use” under the Act. 5
But a change in land use which impacts an “existing use” does not
necessarily equal an “inordinate burden.” Karenza Apartments, LLP v. City
The version of the Act in existence at the time of the Comments Letter
4
and pre-suit notice apply to this case.
5
Waters Mark does not argue that it had a vested right to a specific
use of the Property.
8
of Miami, 47 Fla. L. Weekly D1497, D1498 (Fla. 3d DCA July 13, 2022)
(explaining that even if a landowner has an existing use under the Act the
trial court must examine and objectively analyze whether that landowner’s
investment-backed expectation for the property is objectively reasonable).
An inordinate burden is 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 . . . .”
§ 70.001(3)(e)1., Fla. Stat. (2012). This is akin to a causation requirement
that each landowner must prove to prevail. If Waters Mark could not have
developed the proposed residential subdivision for other reasons, then the
County did not cause an “inordinate burden.”
Relatedly, if Waters Mark could not have developed the proposed
residential subdivision for other reasons, then Waters Mark’s expectation to
the develop the Property was unreasonable. This is an objective test.
Karenza Apartments, LLP, 47 Fla. L. Weekly at D1498. Where unrelated
physical or regulatory barriers stand in the way of a landowner’s intended
development, it cannot be said that the landowner’s investment-backed
expectation is reasonable. Ocean Concrete, Inc. v. Indian River Cnty, Bd. of
Cnty. Comm’rs, 241 So. 3d 181, 189 (Fla 4th DCA 2018); see also City of
9
Jacksonville v. Coffield, 18 So. 3d 589, 599 (Fla. 1st DCA 2009); Palm Beach
Polo, Inc. v. Vill. of Wellington, 918 So. 2d 988, 995 (Fla. 4th DCA 2006).
With this in mind, we find that the trial court erred in granting summary
judgment for Waters Mark on the issue of liability. Summary judgment was
inappropriate on this record because the County presented evidence, which,
when viewed in the light most favorable to the County, could lead a rational
trier of fact to find against Waters Mark on the issue of inordinate burden.
Specifically, the County identified the Comments Letter it sent to Waters
Mark after the County completed its initial review of the second application.
The Comments Letter listed various problems, aside from the developmental
density, that apparently had to be addressed by Waters Mark before its
application could move onto the next stage of review.
Instead of attempting to address the identified problems, it appears,
from this record, that Waters Mark simply abandoned its application for a
second time. This is problematic because it leaves unanswered the question
of whether Waters Mark could ever obtain the approvals needed to proceed,
especially the approval of the District, which never consented to Waters
Mark’s earlier proposed development that complied with the comprehensive
plan in effect. As the County correctly argues, considering the regulatory
history between Waters Mark and the District, it cannot be assumed that the
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District would have permitted the development. When the litany of issues
listed in the Comments Letter are viewed in a light most favorable to the
County, we find there is a genuine dispute of material fact as to whether other
regulatory barriers, apart from the new density requirements, prevented the
Property from being developed as intended.
Waters Mark attempts to avoid this result by arguing that the Act does
not require a proposed use of the Property to be otherwise fully approved
and shovel ready. But Waters Mark’s argument ignores the fact that it was
not even that close. On this record, Waters Mark was at the beginning of a
multistage application process that it previously failed to complete with
questions remaining as to whether it would obtain the approval of other
agencies, including the District, which withheld its consent in the past.
Because the County came forward with sufficient evidence to create a
genuine issue of material fact that Waters Mark’s proposed development
faced unrelated regulatory barriers, which alone could have barred the
development, summary judgment for Waters Mark was error on this record
and we reverse.
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The County’s Motion for Summary Judgment
The County also appeals the trial court’s denial of its motion for
summary judgment, which is not presently appealable.
“As a general rule, a party may not seek interlocutory review by appeal
of a nonfinal order, including an order denying a motion for summary
judgment.” Miami-Dade Cnty. v. Pozos, 242 So. 3d 1152, 1153 (Fla. 3d DCA
2017). An exception exists for specific nonfinal orders listed and described
in Florida Rule of Appellate Procedure 9.130, among which are nonfinal
orders determining “that a governmental entity has taken action that has
inordinately burdened real property within the meaning of section
70.001(6)(a), Florida Statutes.” Fla. R. App. P. 9.130(a)(3)(C)(vii).
While the order granting Waters Mark summary judgment made such
a determination, the same cannot be said for the trial court’s denial of the
County’s competing motion. By denying the County’s competing motion, the
trial court declined to make such a determination. To read Rule
9.130(a)(3)(C)(vii) as authorizing the appeal of a denial of a motion for
summary judgment would require this Court to replace the word “that” with
“whether.” Because the exception carved out by Rule 9.130(a)(3)(C)(vii)
authorizes only a nonfinal appeal of an order determining “that a
governmental entity has taken action that has inordinately burdened real
12
property . . .,” we lack jurisdiction to review the denial of the County’s motion
for summary judgment. Fla. R. App. P. 9.130(a)(3)(C)(vii) (emphasis added).
As a result, we express no view on the arguments raised in the County’s
motion for summary judgment and dismiss that aspect of the County’s appeal
for want of jurisdiction.
In sum, the County came forward with sufficient evidence that Waters
Mark’s proposed development faced regulatory barriers, unrelated to the
application of the Ordinance, which created a genuine issue of material fact
as to whether the development could proceed as planned. As such,
summary judgment for Waters Mark was error on this record.
DISMISSED in part; REVERSED in part; and REMANDED for further
proceedings.
LAMBERT, C.J., and WALLIS, J., concur.
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