Legal Report, October 2020

General Counsel, Keith Davis

1. Jamieson v. Town of Fort Myers Beach, 2020 Fla. App. LEXIS 3866 (Fla. 2d 2020). Property rights; inverse condemnation.
In 2002, James J. Jamieson (“Jamieson”) purchased seven (7) acres of vacant land (“Subject Property”) in the Town of Fort Myers Beach (“Town”). The Town’s Comprehensive Plan (adopted in 1998) designated the  Subject Property as wetlands, with a permitted maximum density of one (1) dwelling unit per twenty (20) acres subject to the “minimum use determination” (“MUD”) process which allowed a property owner to apply for a determination of whether each plotted lot qualified for residential use. A year later, the Town adopted its own development code which included § 34-3274, Town Code, providing that “[l]ots qualifying for a [MUD] may not place the home, accessory structures, or driveways on any land in the ‘wetlands’ or ‘recreation’ category on the future land use map of the comprehensive plan.” This provision restricted the MUD process as it applied to property designated as wetlands on the future land use map of the Comprehensive Plan.

In 2010, Jamieson petitioned the South Florida Water Management District for a formal determination regarding the extent of wetlands on the Subject Property, which he presented to the Town. In 2012, Jamieson applied for MUD for all his lots, which the Town denied pursuant to § 34-3274, Town Code. He appealed to the Town Council, but the appeal was held in abeyance. In 2013, Jamieson applied for a small-scale comprehensive plan amendment to transfer the historical density of his lots to another property so he could develop the other property, but the Town denied his application. In December 2014, the Town Council heard the appeal and granted Jamieson an MUD that allowed for construction of one single-family home per lot. Because § 34-3274, Town Code, prevents homes from being placed in wetlands, Jamieson applied for a variance; however, the Town refused to process his variance application.

In 2016, Jamieson filed a Bert J. Harris, Jr., Private Property Rights Protection Act Notice of Claim per § 70.001, F.S., to which the Town responded with an offer to administratively remove three (3) lots from the wetlands category to allow development with residential units. The Town’s offer required Jamieson to agree that development of the three (3) lots “represent[ed] the full amount of development rights to which the property owner is entitled.” Jamieson rejected the Town’s offer by filing suit in 2017 alleging, among other things, a categorical taking under inverse condemnation by the Town’s regulations causing him to suffer a permanent and total deprivation of all use and enjoyment of the Subject Property. The trial court granted summary judgment in favor of the Town, finding that the Subject Property was ineligible for development with single‑family residences because Jamieson took title to the Subject Property after the Town adopted its Comprehensive Plan which restricted development in wetlands. This appeal ensued.  

The Second District Court of Appeals (“2nd DCA”) reversed the trial court’s ruling, interpreting the U.S. Supreme Court case Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001) more broadly than the trial court had and concluding that notice of a preexisting regulation does not operate as an absolute bar to a takings claim. The 2nd DCA held that: 1) Jamieson acquired full property rights when he bought the Subject Property, including the right to challenge the existing wetlands designation and 2) the fact that the wetlands designation existed before he acquired the property did not bar his inverse condemnation claim.

After the 2nd DCA’s decision, a municipality’s regulation of real property by Comprehensive Plan, Charter and/or Code of Ordinances is vulnerable to an inverse condemnation suit if it permanently and totally deprives the use and enjoyment of a property, even though the regulation existed before the property owner acquired the property.