Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MANATEE COUNTY, a political ) subdivision of the State of Florida, ) ) Appellant, ) ) v. ) Case No. 2D18-4053 ) MANDARIN DEVELOPMENT, INC., ) a Florida corporation, ) ) Appellee. ) ) Opinion filed March 18, 2020. Appeal from the Circuit Court for Manatee County; Don T. Hall and Gilbert A. Smith, Jr., Judges. Christopher M. De Carlo, Anne M. Morris, and William E. Clague, Bradenton, for Appellant. S. William Moore of Moore Bowman & Rix, P.A., Sarasota, for Appellee. VILLANTI, Judge. In this case that pitted a property developer against Manatee County, the County appeals two aspects of the final judgment: first, the trial court's finding that one section of the County's Land Development Code was facially unconstitutional, and second, the finding that the County was liable to Mandarin Development, Inc., for an uncompensated taking of a portion of the property owned by Mandarin. Because the ruling on the takings claim is supported by the evidence presented at the bench trial, we affirm that portion of the final judgment without further discussion. However, because Mandarin's challenge to the facial constitutionality of the Land Development Code was barred by the statute of limitations, we reverse that portion of the final judgment. Pursuant to sections 163.3177(6)(d) and 163.3202(2), Florida Statutes (1989), the County developed and adopted a Comprehensive Plan and a Land Development Code which contained, among numerous other provisions, provisions relating to the protection and conservation of wetlands. Pertinent to the issue in this case, the Comprehensive Plan requires the County to identify and classify wetlands based on the nature and function of those wetlands, and it requires property owners to set aside and maintain certain buffer areas around all identified wetlands, with the size of the buffer depending on the County's classification of the wetlands. In addition, the Land Development Code requires that, as a condition of any property development, the property owner dedicate a conservation easement to the County over any required wetland buffers, with the size of the required easement again being related to the County's classification of the wetlands. The purpose of the wetlands buffer is to protect the wetlands from encroachment, damage, or destruction, while the purpose of the conservation easement is to allow the County to enter the property periodically to ensure that the wetlands are, in fact, being protected. In 2006, Kimball Hill Homes filed a preliminary site plan with the County for the development of a 41.2-acre parcel of property that is bounded on the north by -2- the Braden River, on the east by I-75, on the south by an existing subdivision, and on the west by Honoré Avenue. In addition to the northern border that abuts the Braden River, the property contains a linear wetland that runs generally south to north through roughly the middle of the parcel and two ponds on the northern half of the parcel. In total, these wetlands comprise approximately three acres of the 41.2-acre parcel. Kimball Hill Homes proposed to construct a 126-unit multifamily home project on the property, which the County approved in 2007. As a condition of the approval, the County identified wetlands buffers along the river, the ponds, and the linear wetlands, and it required the dedication of conservation easements totaling 9.55 acres over those identified wetlands buffers. In late 2007, Riva Trace, LLC, purchased the property from Kimball Hill Homes. Riva Trace filed an amended site plan that proposed to build eighty-six single- family homes on the site. During the approval process for the amended site plan, Riva Trace sought and obtained a number of variances to the applicable Land Development Code requirements; however, it did not seek a variance relating to the wetlands buffers or required conservation easements. Hence, despite the reduction in the density of the development, the amended site plan approved by the County in 2010 contained the same requirements concerning wetlands buffers and conservation easements as the previous site plan. Shortly after the amended site plan was approved, Mandarin took ownership of the property from its corporate predecessor, Riva Trace, and began active development of the property. In 2012, after significant development had already occurred on the property, Mandarin sent a letter to County staff asking for a variance from the wetlands -3- buffer requirement.1 County staff responded that no such relief was possible under the Comprehensive Plan or the Land Development Code. Two years later, Mandarin sent a letter to the County requesting compensation for the dedication of the required conservation easement on the basis that such dedication constituted an impermissible taking without compensation. The County denied this request. Shortly thereafter, Mandarin filed a three-count complaint against the County. Count I sought a declaration that the wetlands buffer and conservation easement provisions of the County's Comprehensive Plan and Land Development Code were facially unconstitutional under the doctrine of unconstitutional conditions.2 Count III of the complaint alleged that application of the challenged provisions to Mandarin resulted in a per se violation of the Takings Clause. In response, the County argued, inter alia, that Mandarin's facial challenges to the Comprehensive Plan and Land Development Code were barred by the statute of limitations. It also denied that imposition of the required wetlands buffers and conservation easements constituted a taking. Prior to trial, the County filed a motion for summary judgment on the statute of limitations defense to the challenge to the facial constitutionality of the wetlands provisions. After a hearing, the trial court denied this motion. At the conclusion of the subsequent bench trial, the court found that the challenged provisions 1The record does not reflect whether Mandarin had a strategic reason for holding back its request for a variance of the wetlands buffer until after the County had approved the development plan with the other variances. 2Count II, which was subsequently withdrawn, alleged that the same provisions were unconstitutional as applied to Mandarin. -4- of the Comprehensive Plan and most of the challenged provisions of the Land Development Code were not facially unconstitutional; however, it determined that one section of the Land Development Code—section 706.8.B—was facially unconstitutional as a violation of the doctrine of unconstitutional conditions. The court also found in favor of Mandarin on the County's liability under the takings claim, and it scheduled a jury trial on the issue of the compensation due Mandarin for the taking. Shortly thereafter, Mandarin and the County reached an agreement on the value of the takings claim, and the trial court entered a final judgment as to all of the claims. The County then brought this appeal. As mentioned above, after thorough consideration, we reject the County's arguments concerning Mandarin's takings claim without further discussion. However, we agree with the County that the statute of limitations barred Mandarin's claim based on the alleged unconstitutionality of section 706.8.B of the Land Development Code. Therefore, we must reverse that portion of the final judgment that found section 706.8.B of the Land Development Code facially unconstitutional.3 The discrete question before this court is when the statute of limitations begins to run on a challenge to the facial constitutionality of a land use ordinance. The County asserts that the statute of limitations for a facial challenge started to run when the Comprehensive Plan and Land Development Code were originally adopted in 1990. In contrast, Mandarin argues that an unconstitutional ordinance is void; that statutes of 3The trial court found the remainder of the challenged provisions in the Comprehensive Plan and Land Development Code constitutional, and Mandarin has not challenged that ruling by way of a cross-appeal. Therefore, the only section at issue in this appeal is section 706.8.B of the Land Development Code. -5- limitation can never bar a challenge to a void ordinance; and that therefore there is no statute of limitations applicable to its facial challenge. While the answer may be different in the context of an as-applied challenge, in the context of a facial challenge to the constitutionality of a land use ordinance, the County is correct that the statute of limitations begins to run when the ordinance is enacted or adopted. Initially, we note that Mandarin raised its challenges to the constitutionality of the Comprehensive Plan and Land Development Code in a declaratory judgment action. Declaratory judgment actions are subject to a four-year statute of limitations. See § 95.11(3)(p), Fla. Stat. (2015) (providing a four-year statute of limitations for all causes of action not otherwise specifically listed in the statute). And in the usual circumstance, the four-year statute would begin when there is an actual controversy between the parties that the court must address. As the supreme court has explained: Individuals may challenge the validity of a statute in a declaratory action. § 86.021, Fla. Stat. (1989). This Court has long held, however, that individuals seeking declaratory relief must show that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from -6- curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts. May v. Holley, 59 So. 2d 636, 639 (Fla. 1952) (emphasis added). Accord Williams v. Howard, 329 So. 2d 277 (Fla. 1976); Bryant v. Gray, 70 So. 2d 581 (Fla. 1954). Thus, although a court may entertain a declaratory action regarding a statute's validity, there must be a bona fide need for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief. Ervin v. Taylor, 66 So. 2d 816 (Fla. 1953); see § 86.011, Fla. Stat. (1989). Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (underlined emphasis added). Hence, if Mandarin were contending that the Comprehensive Plan and Land Development Code provisions in question were unconstitutional as applied to it, the four-year statute of limitations would have begun when Mandarin took title to the property in 2012 since that is the point when Mandarin would have had a bona fide need for a declaration of its rights. However, Mandarin dismissed its as-applied challenge to the Comprehensive Plan and Land Development Code sections and proceeded solely on a claim that those provisions were facially unconstitutional. In general terms, "[a] facial challenge considers only the text of the statute, not its application to a particular set of circumstances, and the challenger must demonstrate that the statute's provisions pose a present total and fatal conflict with applicable constitutional standards." State v. Cotton, 198 So. 3d 737, 742 (Fla. 2d DCA 2016) (quoting In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 690 (Fla. 2012)). In the context of land use ordinances and unconstitutional conditions, the basis of a facial constitutional challenge "is that the very enactment of the statute has reduced the value of the -7- property or has effected a transfer of a property interest. This is a single harm, measurable and compensable when the statute is passed." Hillcrest Prop., LLC v. Pasco County, 754 F.3d 1279, 1282 (11th Cir. 2014) (quoting Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993)); see also Kuhnle Bros. v. County of Geauga, 103 F.3d 516, 521 (6th Cir. 1997); Collins v. Monroe County, 999 So. 2d 709, 713 (Fla. 3d DCA 2008) ("A facial taking, also known as a per se or categorical taking, occurs when the mere enactment of a regulation precludes all development of the property, and deprives the property owner of all reasonable economic use of the property."). Hence, the harm—and the need for a determination of a property owner's rights and interests—"occurs immediately upon, and because of, the statute's enactment: the property value depreciates and a taking occurs as soon as the statute goes into effect." Hillcrest Prop., 754 F.3d at 1282. Therefore, the statute of limitations for a facial challenge begins to run at the point of enactment or adoption, which in this case would be 1990. Since Mandarin did not bring its facial challenge until 2015, that challenge was barred by the statute of limitations, and the trial court should have granted the County's motion for summary judgment on this basis. In defense of the trial court's ruling, Mandarin relies on Sarasota County v. Taylor Woodrow Homes, Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995), but that reliance is misplaced. In that case, Taylor Woodrow entered into a contract with Sarasota County in 1973 relating to the development of a 1300-acre parcel as a master-planned community called the Meadows. Id. at 1249. At the time, Sarasota County did not have a public wastewater system in place, but it had adopted a master plan to construct a county-wide wastewater treatment system at public expense and for public use. Id. As -8- part of Taylor Woodrow's development contract with the County for the Meadows, Taylor Woodrow agreed that it would construct a wastewater treatment system specifically for the Meadows at its own expense and run it privately. Id. However, Taylor Woodrow also agreed that, at some point in the future when the County reached the point of providing public wastewater service to the Meadows, Taylor Woodrow would dedicate its wastewater treatment system to the County without charge or encumbrance. Id. In 1993, the County adopted a resolution seeking to enforce its right to obtain a dedication of the Meadows' wastewater treatment system, but Taylor Woodrow refused to turn over the system. Id. at 1250. The County then filed a declaratory judgment action seeking to enforce the portion of the original development contract that required the dedication. In response, Taylor Woodrow argued that the County's effort would result in an unconstitutional taking of its property without just compensation—a claim the County contended was barred by the statute of limitations. In refusing to conclude that Taylor Woodrow's taking claim was barred by the statute of limitations as a matter of law, this court stated: Taylor Woodrow Homes wishes to analyze the case as a constitutional taking occurring in 1993. The County sees the matter as enforcement of a contractual concession reasonably made by Taylor Woodrow Homes without protest under 1974 law. Generally, the judiciary cannot allow any governmental agency, including Sarasota County, to take private property without due process or just compensation. It is equally true, as a general proposition, that any party to a valid contract, including Taylor Woodrow Homes, can be expected to abide by the terms of the contract, especially if it executed the agreement without protest twenty years ago and has accepted the benefits of that contract. We conclude Taylor Woodrow Homes is entitled to the benefit of current constitutional case law, but it must establish that the factual -9- circumstances in 1974 rendered its agreement invalid at that time. Although we do not regard these issues as barred by any statute of limitations, the County has the right to raise issues in the nature of waiver and estoppel under these circumstances. Id. at 1250-51. Thus, this court did not hold, as Mandarin argues before this court, that Taylor Woodrow had the right to raise a facial challenge to a statute or county ordinance nineteen years after it was enacted. Instead, on review of an order granting a motion to dismiss, this court refused to foreclose the possibility of Taylor Woodrow challenging a contractual provision on constitutional grounds pending further factual development. The factual differences between that case and Mandarin's case render the language in Taylor Woodrow wholly inapplicable. Mandarin also argues that the trial court's ruling was correct because the four-year statute of limitations did not begin to run until the County actually required the dedication of the conservation easement as part of final plat approval. And while that may have been a valid argument if the issue was whether the easement requirement was constitutional as applied to Mandarin, Mandarin does not explain why its facial challenge to the constitutionality of the Comprehensive Plan and Land Development Code should be governed by its own development activities. As the Fourth District noted in a similar case involving a challenge to the validity of a dedication made fifteen years earlier, "Patently, there must be an outside limit on when a landowner can seek compensation for a taking where the owner does not pursue administrative or judicial remedies readily available at the time of approval and continues to accept the benefits of the development." New Testament Baptist Church Inc. of Miami v. State, Dep't of Transp., 993 So. 2d 112, 117 (Fla. 4th DCA 2008). - 10 - Here, the wetlands buffers and conservation easements were originally required as part of the final site plan approved for Kimball Hill Homes. When Riva Trace, LLC, purchased the property in 2007, it did so with full knowledge of the conditions the County had imposed, and it developed an amended site plan that again incorporated the wetlands buffers and conservation easements. The County approved the amended site plan in 2010 and approved the final plat in 2012. Riva Trace transferred the already-platted property to Mandarin, and Mandarin then proceeded to completely develop the project, including requesting a number of variances and other accommodations from the County, without ever mentioning the issues relating to the wetlands buffers and conservation easements that it now raises. In essence, Mandarin failed to pursue any remedy for the alleged constitutional violation while accepting the benefits of the development approval and sought to challenge the conservation easement only after the entire development was completed as approved. We refuse to hold that a developer may dictate when the statute of limitations begins for a facial challenge to the constitutionality of land development ordinances by virtue of its own actions. We recognize that this result may seem harsh at first glance; however, it does not strip Mandarin of a remedy it otherwise would have had. Mandarin had the option to go forward with its as-applied challenge to the Comprehensive Plan and Land Development Code, which contended that those provisions violated Mandarin's due process rights when they were applied to the particular parcel at issue. "In an as- applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of - 11 - property. The standard of proof for an as-applied taking is whether there has been a substantial deprivation of economic use or reasonable investment-backed expectations." Collins, 999 So. 2d at 713 (citations omitted). Here, for reasons not apparent from the record, Mandarin elected to dismiss its as-applied challenge prior to trial. The fact that Mandarin did not pursue a remedy potentially available to it does not require this court to create one in derogation of the law. Moreover, we note that it is not at all clear that Mandarin—or any other subsequent purchaser of platted property—has suffered or will suffer any compensable loss based on any alleged facial unconstitutionality of land development ordinances that are in place at the time the property is purchased. As the Hillcrest Property court noted, "Any future owners could not arguably have suffered an injury [as a result of the ordinance] because the 'price they paid for the [property] doubtless reflected the burden of [the ordinance] they would have to suffer.' " 754 F.3d at 1283 (second alteration in original) (quoting Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010)). In essence, since any subsequent purchaser would (or should) have known of the development restriction, that purchaser would have adjusted the purchase price accordingly and therefore has suffered no loss in value of its property. Here, Mandarin purchased the property years after the County had approved plats that required, as a condition of final approval, the development restrictions within the wetlands buffers and the dedication of the conservation easement. Presumably, the purchase price that Mandarin paid for the property reflected the burdens imposed by those regulations. Therefore, it is at least arguable that Mandarin suffered no actual loss as a result of the - 12 - ordinance and so was entitled to no relief in connection with a facial challenge to the ordinances. In short, the requirements for wetlands buffers and conservation easements have been part of the County's Comprehensive Plan and Land Development Code since 1990. To fall within the statute of limitations, any challenge to the facial constitutionality of these provisions should have been brought by 1994. Therefore, the trial court should have granted the County's motion for summary judgment as it related to the statute of limitations defense to Mandarin's claim of facial unconstitutionality. Accordingly, we reverse the portion of the final judgment finding section 706.8.B of the Land Development Code unconstitutional and remand for entry of a judgment in favor of the County on this issue. Affirmed in part, reversed in part, and remanded with instructions. SLEET, J., Concurs. ATKINSON, J., Concurs in result only. - 13 -