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.
