In a ruling on an interlocutory appeal, the Florida District Court of Appeal for the Fifth District recently reversed a summary judgment in favor of Waters Mark Development Enterprises, LC (“WMDE”) against Brevard County (“the County”) because WMDE had not proven that the County’s residential development density standard constituted an inordinate burden on WMDE’s use of its property intended for a subdivision. Brevard County v. Waters Mark Development Enterprises, LC, No. 5D21-1809, 2022 WL 41111172, at *1 (Fla. Dist. App. Sept. 9, 2022).
WMDE purchased its property in 2006, with the intention of constructing a subdivision that allocated one acre of land to every residence. This plan complied with the County’s comprehensive development plan in force at the time. The St. Johns River Water Management District (“the District”) raised concerns over the impact of the development on water quality and nearby wetlands, which WMDE never resolved; in the end, WMDE abandoned that application.
Over a year later, the County amended its comprehensive development plan to lower the developmental density for areas, including WMDE’s property. The new plan required every residence to have 2.5 acres of land, instead of just one.
Three years after the amendment, WMDE submitted a second application to build a subdivision development on the same property, with fewer houses than in its first application, but still more than the new plan allowed. In a letter identifying a number of issues with the application, the County informed WMDE that its proposal exceeded the development density limitations. Instead of curing the issues identified, WMDE filed suit, asserting that applying the amended comprehensive plan to its property “inordinately burdened an existing use of the [p]roperty in violation” of state law.
The County argued, as an affirmative defense, that regardless of whether the “one acre per residence” or the “two and a half acres per residence” development density standard applied, WMDE could not have developed the subdivision. WMDE sought and was granted summary judgment on this question.
On interlocutory appeal, the Court concluded that summary judgment was improper because WMDE did not even attempt to obtain the necessary approvals to move forward on the development. Instead, WMDE simply abandoned its application, for a second time, and then sued the County. Viewing the various issues with the application that the County identified in the light most favorable to the County, the Court concluded that the County had shown there was a genuine dispute of material fact as to whether WMDE would have been permitted to build the subdivision, regardless of the change in development density under the comprehensive plan.
In short, because WMDE had never completed the application process and thus could not show that the development density standard was the only barrier to building the development, there was a genuine question of material fact remaining for trial on the inordinate burden issue. Had WMDE obtained all other necessary approvals instead of abandoning its application for a second time, it may have received a different result.
Regardless of whether it would have prevailed at summary judgment if it had completed the process, WMDE put itself in a difficult position by not completing the application process. For developers in a similar position, it would be wise to move forward with the whole application process, in order to avoid creating needless pitfalls in a later dispute.