Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MOJITO SPLASH, LLC, Appellant/Cross-Appellee, v. CITY OF HOLMES BEACH, FLORIDA, Appellee/Cross-Appellant. No. 2D20-651 July 30, 2021 Appeal from the Circuit Court for Manatee County; Edward Nicholas, Judge. Jason M. Miller and Aaron Thomas of Najmy Thompson, P.L. Bradenton for Appellant/Cross-Appellee. Jay Daigneault of Trask Daigneault, LLP, Clearwater, for Appellee/Cross-Appellant. LaROSE, Judge. Mojito Splash, LLC, sued the City of Holmes Beach under the Bert J. Harris, Jr., Private Property Rights Protection Act, § 70.001- .80, Fla. Stat. (2018) (the "Act"). Mojito appeals the final summary judgment entered in favor of the City. The City cross-appeals, challenging the trial court's earlier orders denying the City's motions to dismiss and for judgment on the pleadings. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.130(g); e.g., Scotts Co. v. Hacienda Loma Linda, 942 So. 2d 899, 899-900 (Fla. 3d DCA 2005) (holding that an appellate court possesses jurisdiction over a cross-appeal from a nonfinal order by virtue of its jurisdiction over the order in the main appeal). We find merit in the City's first argument on cross-appeal. Because the density restrictions in the City's Comprehensive Plan took effect years before Mojito purchased the subject property, Mojito cannot claim that those restrictions inordinately burdened an existing use of its property. Therefore, we affirm, although on grounds different than those adopted by the trial court.1 See Pino v. Deutsche Bank Nat'l Tr. Co., 201 So. 3d 128, 128 n.1 (Fla. 3d DCA 2015) ("Our [affirmance of the final judgment] in this regard is not, strictly speaking, a 'tipsy coachman' scenario, since Appellee filed a 1 Our disposition on this issue renders moot the issues Mojito raises on appeal, as well as the City's remaining arguments on cross-appeal. 2 notice of cross-appeal on this issue, contending that although the trial court was ultimately correct in denying Appellants' motion for summary judgment, it erred in determining that Appellee's default letter commenced the running of the statute of limitations."). Background In February 2009, the City adopted Ordinance 08-05. This ordinance amended the City's Future Land Use Element of its Comprehensive Plan. With the amendment, the ordinance allowed vacation rentals in the City's Medium Density Residential R-2 zoning district. Critically, the ordinance restricted occupancy in such rentals to the greater of six persons or two persons per bedroom. With constructive notice2 of Ordinance 08-05, Mojito, in June 2013, purchased a five-bedroom property in the Medium Density 2 Mojito's principal testified that he was unaware of "that provision of the [C]omp[rehensive] [P]lan" before purchasing the property. Nonetheless, "[o]wners are deemed to purchase property with constructive knowledge of applicable land use regulations." See Metro. Dade County. v. Fontainebleau Gas & Wash, Inc., 570 So. 2d 1006, 1007 (Fla. 3d DCA 1990); c.f., e.g., Citrus County. v. Halls River Dev., Inc., 8 So. 3d 413, 415-17, 422-23 (Fla. 5th DCA 2009) (holding that the property owner was bound by the comprehensive plan in effect before it purchased the property where the property 3 Residential R-2 zoning district. Mojito intended to create a vacation rental property "capable of hosting 12 overnight guests." Mojito committed "significant cash investment along with additional accommodations specific to vacation rentals." By December 2013, Mojito began marketing the property as a vacation rental. Apparently, the property generated significant weekly rental income. Mojito further advises that the property's value increased. In September 2015, the City enacted Ordinance 15-12. This ordinance amended the City's Land Development Code to conform with the 2009 amendment, Ordinance 08-05, to the Comprehensive Plan. The City, in March 2016, enacted Ordinance 16-02. This ordinance created an enforcement mechanism to ensure compliance with the previously established occupancy limits for vacation rentals. Ordinance 16-02 restated the occupancy limits contained in Ordinance 08-05 and Ordinance 15-12. About a year later, in April 2017, Mojito presented the City with a claim under the Act. See § 70.001(4)(a). Mojito submitted owner misinterpreted the provisions of the plan and mistakenly believed its intended purpose for the property was permissible). 4 an appraisal that retrospectively valued the property as of September 2015, the date the City enacted Ordinance 15-12. The appraisal concluded that the property's value had diminished $295,000 due to Ordinance 15-12. The City denied the claim. See § 70.001(5)(a). So, Mojito sued. See generally P.I.E., LLC v. DeSoto County, 133 So. 3d 577, 578 (Fla. 2d DCA 2014) ("The . . . [Act] contains some relatively complex presuit requirements. The property owner must submit a claim in writing to the head of the governmental entity. If the matter is not resolved during the presuit period, the property owner can file its lawsuit in circuit court." (citations omitted)). After a September 2019 hearing on the parties' competing summary judgment motions, the trial court rendered its final summary judgment in favor of the City. The judgment stated that "at the time [Mojito] purchased and developed the[] propert[y], they did have under the Act an 'existing' use of vacation rentals able to be rented to an unlimited number of occupants." However, the trial court concluded that Mojito's claims fail under the Act because they cannot demonstrate an "inordinate burden." While the limitation on permissible occupants in vacation rentals imposed by 5 Ordinance 15-12 represented a change in the existing use . . . it did not result in an inordinate burden as that term is defined by the Act. Local governments clearly have the right to add to, subtract from, and amend land development regulations, and [Mojito is] not permanently unable to obtain [its] reasonable, investment-backed expectations as the result of Ordinance l5-12's passage. To the contrary, [Mojito] still possess[es] such reasonable, investment-backed expectation despite the ordinance. Analysis "[W]e review the grant of summary judgment de novo." Scott v. Strategic Realty Fund, 311 So. 3d 113, 116 (Fla. 2d DCA 2020) (quoting Griffin v. ARX Holding Corp., 208 So. 3d 164, 168 (Fla. 2d DCA 2016)); Highlands-In-The Woods, L.L.C. v. Polk County, 217 So. 3d 1175, 1178 (Fla. 2d DCA 2017) ("We review de novo the trial court's determination that the County was entitled to–and that Highlands was not entitled to–a judgment as a matter of law."). In reviewing the summary judgment before us, we must interpret and apply the Act. "Statutory interpretation is a question of law subject to de novo review." GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007); see, e.g., Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1165 (Fla. 2017) (employing de novo review of the Act). Mojito maintains that "[a]s a direct and intentional result of the City's adoption of Ordinances 15-12 and 16-02" it is 6 "permanently restricted and unable to obtain its reasonable investment-backed expectations for an existing use of the Property. . . . Mojito's investment in the exercised use of its Property has been permanently restricted by the passage of the Ordinances." Mojito contends that Ordinances 15-12 and 16-02 deprived it of its "existing use" of the property, that is, Mojito had the right to rent the property to an unregulated number of guests. This argument, too, is subject to our de novo review. See Boca Ctr. at Mil., LLC v. City of Boca Raton, 312 So. 3d 920, 923 (Fla. 4th DCA 2021) ("Determinations under [the Act] that a claimant has an existing use of the real property are conclusions of law and we review such conclusions de novo." (citing City of Jacksonville v. Coffield, 18 So. 3d 589, 594 (Fla. 1st DCA 2009))). "The [Act] addresses circumstances when the government enacts laws, regulations or ordinances that 'may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution.' " Indian River County v. Ocean Concrete, Inc., 308 So. 3d 1010, 1013 (Fla. 4th DCA 2020) (quoting § 70.001(1), Fla. Stat. (2008)). Accordingly, the Act created "a separate and distinct cause 7 of action from the law of takings . . . when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property." § 70.001(1). We must construe the Act narrowly. See Hardee County, 221 So. 3d at 1165 ("Because the Act alters the common law and waives sovereign immunity, it must be narrowly construed."). As relevant to this appeal, the Act provides that [w]hen 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, the property owner of that real property is entitled to relief [including] compensation for the actual loss to the fair market value of the real property caused by the action of government. § 70.001(2). The parties agree that the property owner must prove (1) a specific governmental action has (2) inordinately burdened (3) an existing use of the owner's property. See Bair v. City of Clearwater, 196 So. 3d 577, 583 (Fla. 2d DCA 2016). Facing a claim under the Act, a trial court must first assess whether the claimed "existing use of real property" or the claimed "vested right to a specific use of real property" actually existed. § 70.001(2); see, e.g., Ocean Concrete, Inc. v. Indian River Cnty., Bd of Cnty. Comm'rs, 241 So. 3d 181, 186 (Fla. 4th DCA 2018) ("[W]hen 8 a claim under the [Act] is presented for judicial review, the court must first consider whether a claimed 'existing use of the real property' or a claimed 'vested right to a specific use of the real property' actually existed. If it finds either, it must next determine whether the government action inordinately burdened the property." (quoting § 70.001(6)(a), Fla. Stat. (2008))). The Act defines an "existing use" as "[a]n actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use." § 70.001(3)(b)(1).3 Mojito claims that it "had an existing use for its Property for several years renting to an unregulated number of guests and reaping the benefit of its hefty reconstruction investment." Mojito, however, skirts the obvious: years before it purchased the property, Ordinance 08-05 limited vacation rental occupancy. 3 The Act furnishes an alternative definition of "existing use." See § 70.001(3)(b)(2). However, Mojito did not pursue relief under this definition. It told the trial court that "[t]he existing use applicable to our case is under subsection (3)(b)(1), that being an actual present use or activity on the real property. . . . [T]his is important because we're not dealing with existing use under (3)(b)(2)." 9 Although Mojito could use the property as a vacation rental, it had no right to rent to an unlimited number of guests. When Mojito purchased the property in June 2013, the City's Comprehensive Plan prohibited use of the property as "a vacation rental . . . capable of hosting 12 overnight guests." Indeed, Ordinance 08-05 never permitted rental to "an unlimited number of occupants." See, e.g., Citrus County v. Halls River Dev., Inc., 8 So. 3d 413, 422 (Fla. 5th DCA 2009) ("This case is based entirely on the fact that Halls River's project does not comply with the Plan. . . . Inasmuch as the property maintained the CL designation since 1997, well before Halls River bought the property, Halls River never had a lawful right to the proposed use for a multifamily dwelling . . . ." (emphasis added)). Mojito had no right to use the property as it had. Indeed, Mojito overstates the scope of its claimed existing use. Unlimited occupancy speaks to the degree of the use as a characteristic of the permitted use, the vacation rental. In this case, the City limited that degree of use in Ordinance 08-05. We cannot agree that any use to which Mojito put the property 10 established an "existing use" under the Act merely by virtue of an unauthorized use. Mojito ignores the significance and effect of the City's Comprehensive Plan, as amended by Ordinance 08-05. "A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality." Machado v. Musgrove, 519 So. 2d 629, 631-32 (Fla. 3d DCA 1987) (first citing § 163.3167(1), Fla. Stat. (1985); then citing Southwest Ranches Homeowners Ass'n v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987)). The legislature instructs us "that adopted comprehensive plans shall have the legal status set out in this [Community Planning Act] and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act." § 163.3161(6), Fla. Stat. (2018); see Lee County v. Sunbelt Equities, II, Ltd. P'ship, 619 So. 2d 996, 1003 (Fla. 2d DCA 1993) ("In Florida, all zoning and development permitting must now be consistent with the comprehensive plan of the city or county in question."). 11 Compliance with a comprehensive plan is mandatory. See § 163.3194(1) ("[A]ll development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted."); e.g. Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 198 (Fla. 4th DCA 2001) ("Section 163.3194 requires that all development conform to the approved Comprehensive Plan, and that development orders be consistent with that Plan. The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans after they have been approved by the State."). Clearly, the legislature has established the primacy and legal effect of a local government's Comprehensive Plan. See Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011) ("[C]ourts are 'without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.' " (quoting McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998))). 12 The trial court erred in finding an "existing use" under the Act; all development must comply with the City's Comprehensive Plan. From the start, Mojito's development was inconsistent with, and unauthorized by, the City's Comprehensive Plan. Mojito argues that "[t]he 2009 Comprehensive Plan had no teeth prior to the Ordinance[s -- 15-12 and 16-02 --] being passed"4 and, in any event, "[t]he City's Comprehensive Plan restrains the City, not the [developer]." However, Mojito ignores the legislature's command that "no . . . private development shall be permitted 4 As part its argument that Ordinance 08-05 lacked "teeth," Mojito suggests that a 2011 amendment to section 509.032(7), Florida Statutes (2018), preempted the City from adopting any ordinance regulating vacation rentals. See ch. 2011-119, § 7(b), Laws of Fla. (prohibiting "[a] local law, ordinance, or regulation" from "restrict[ing]," "prohibit[ing]," or "regulat[ing] vacation rentals based solely on their classification, use, or occupancy"). However, Mojito overlooks the language exempting "any local law, ordinance, or regulation adopted before June 1, 2011." Id. In any case, the legislature amended section 509.032(7) in 2014 to remove the preemptive language covering occupancy restrictions in vacation rentals. See ch. 2014-71, § (7)(b), Laws of Fla. Thus, the City was not preempted from adopting Ordinances 15-12 and 16-02, as consistent with its 2009 amendment to its Comprehensive Plan. See City of Miami v. AIRBNB, Inc., 260 So. 3d 478, 482 (Fla. 3d DCA 2018) (holding that the City's 2016 re-adoption of the zoning code was not preempted because its substantive content was identical to the provision already in place in 2009, during the period protected by section 509.032(7)(b)'s grandfather clause). 13 except in conformity with comprehensive plans." § 163.3161(6). Florida law requires all development, public and private alike, be consistent with a local government's comprehensive plan. We cannot agree that Mojito is unfettered by such law. Cf. Pinecrest Lakes, Inc., 795 So. 2d at 209 ("[Section 163.3215, titled "Standing to enforce local comprehensive plans through development orders,"] says that an affected or aggrieved party may bring an action to enjoin an inconsistent development allowed by the County under its Comprehensive Plan. The statutory rule is that if you build it, and in court it later proves inconsistent, it will have to come down. The court's injunction enforces the statutory scheme as written. The County has been ordered to comply with its own Comprehensive Plan and restrained from allowing inconsistent development; and the developer has been found to have built an inconsistent land use and has been ordered to remove it. The rule of law has prevailed."). Mojito's theory is at odds with the intent of the Community Planning Act: It is the intent of this act that local governments have the ability to preserve and enhance present advantages; encourage the most appropriate use of land, water, and resources, consistent with the public interest; overcome present handicaps; and deal effectively with 14 future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, it is intended that units of local government can preserve, promote, protect, and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare; facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services; and conserve, develop, utilize, and protect natural resources within their jurisdictions. § 163.3161(4); cf. Nat. Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1379 n.19 (D.C. Cir. 1977) ("The classic account of the Tragedy of the Commons can be found in Hardin, The Tragedy of the Commons, 162 Science 1243 (1968).").5 Conclusion We affirm the trial court's grant of summary judgment in favor of the City. At the time Mojito purchased and developed its property, Mojito's claimed existing use was inconsistent with and 5 Nat. Res. Def. Counsel, Inc., 568 F.2d at 1379 n.19 ("Hardin makes the point in the context of sheep-grazing. Put simply, . . . Hardin shows that if no one is authorized to set limits to preserve open pasture land as a whole, allowing sheep to graze on that land may lead to serious overgrazing, as each herdsman thinks only of his own advantage. The solution lies in some mandate, from above or by agreement, with sanctions to compel conformance."). 15 unauthorized by the City's Comprehensive Plan. Mojito never had a lawful right to use the property as a vacation rental for twelve overnight guests, let alone an unlimited number of occupants. Affirmed. NORTHCUTT and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 16