               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT

GOLFROCK, LLC, a Florida limited     )
liability company,                   )
                                     )
              Appellant,             )
                                     )
v.                                   )         Case No. 2D15-2105
                                     )
LEE COUNTY, FLORIDA, a political     )
subdivision of the State of Florida, )
                                     )
              Appellee.              )
________________________________ )


Opinion filed July 7, 2017.

Appeal from the Circuit Court for Lee
County; Alane Laboda, Judge.

Gregory S. Rix and S. William Moore of
Moore Bowman & Rix, P.A., Tampa, for
Appellant.

Jay J. Bartlett and Jeffrey L. Hinds of
Smolker, Bartlett, Loeb, Hinds &
Sheppard, P.A., Tampa, and Richard
Wm. Wesch, County Attorney, Fort
Myers, for Appellee.

Mark Miller and Christina M. Martin,
Palm Beach Gardens, for Amicus
Curiae Pacific Legal Foundation.


KELLY, Judge.
              Appellant, GolfRock, LLC, submitted an application to Appellee, Lee

County, seeking to change the zoning of a parcel of land. Complete details of what

transpired in the application process are not pertinent to our disposition of this appeal.

It suffices to say that Lee County amended its comprehensive plan and asked GolfRock

to withdraw its application. GolfRock did not withdraw the application; however, Lee

County has deemed it withdrawn so no rezoning application is presently pending.

              After being asked to withdraw its application for rezoning, GolfRock filed

an action for declaratory judgment against Lee County. The complaint alleged that "[i]n

order to assert its private property rights under Article X, Section 6(a) of the Florida

Constitution . . . or under the statutory protection of Section 70.001, Florida Statutes . . .

the 'Bert J. Harris, Jr., Private Property Rights Protection Act,' GolfRock is required to

'ripen' its claim. . . ." GolfRock asked the trial court to "enter a Declaratory Judgment

finding that any continuation of the current zoning request is futile as a matter of law and

that any claims for remedy for the injury to GolfRock's private property rights under the

constitution or laws of Florida are ripe for adjudication."

              Initially, Lee County moved to dismiss the complaint on several grounds.

Among them, Lee County argued that the complaint failed to state a claim for

declaratory relief. The trial court denied the motion and the case proceeded.

Eventually, the parties filed cross-motions for summary judgment on the issue of

ripeness. GolfRock's motion asked the trial court to find that "under the futility exception

to the ripeness doctrine, any claim by GolfRock for a regulatory partial taking is now ripe

for adjudication." Lee County argued that regardless of which type of takings claim

GolfRock might eventually pursue, its claims were not ripe and the futility exception to



                                             -2-
the ripeness doctrine did not apply. The trial court agreed that GolfRock had not

established its claim was ripe nor had it established "the applicability of the futility

exception[]." It entered summary judgment in favor of Lee County.

              In this appeal GolfRock challenges that determination. We need not reach

the merits of that issue, however, because we conclude GolfRock's complaint did not

state a cause of action for declaratory relief. As a result, the trial court lacked

jurisdiction and it should have dismissed the complaint.

              To state a claim for declaratory relief, the party seeking the declaration

must show that he is in doubt as to the existence or nonexistence of some right, status,

immunity, power, or privilege and that he is entitled to have such doubt removed. May

v. Holley, 59 So. 2d 636, 638-39 (Fla. 1952); see § 86.011, Fla. Stat. (2013).

GolfRock's complaint does not allege GolfRock is in doubt as to the existence or

nonexistence of any immunity, power, privilege, status, or right. The only mention of

rights anywhere in the complaint is GolfRock's assertion that it has private property

rights, the existence of which is unquestioned.

              GolfRock's complaint explains that to pursue a takings claim for any injury

to its property rights occasioned by how Lee County handled its zoning application, it

must have a final denial of the application. It alleges it would be "prohibitively

expensive" to pursue the application further, however, and that its denial is a "fait

accompli." It points to the fact Lee County's comprehensive plan, as amended while

GolfRock's application was pending, no longer permits the planned use of its property.

Accordingly, it asks the court to declare that "any continuation of the current zoning

request is futile as a matter of law."



                                             -3-
              The concepts of ripeness and futility are pertinent to a takings claim

challenging the application of land use regulations. See Palazzolo v. Rhode Island, 533

U.S. 606, 620-21 (2001); Lost Tree Vill. Corp. v. City of Vero Beach, 838 So. 2d 561,

569-71 (Fla. 4th DCA 2002). "[A] takings claim challenging the application of land-use

regulations is not ripe unless 'the government entity charged with implementing the

regulations has reached a final decision regarding the application of the regulations to

the property at issue.' " Palazzolo, 533 U.S. at 618 (quoting Williamson Cty. Reg'l

Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985)). "[A]

landowner may not establish a taking before a land-use authority has the opportunity,

using its own reasonable procedures, to decide and explain the reach of a challenged

regulation." Id. at 620; see also Lost Tree, 838 So. 2d at 573 ("In order to succeed in

stating an as-applied takings claim, Lost Tree must show that it obtained a final decision

on the permitted use of the land . . . ."). The Supreme Court has explained the

necessity of having a final decision:

              A final decision by the responsible state agency informs the
              constitutional determination whether a regulation has
              deprived a landowner of "all economically beneficial use" of
              the property, or defeated the reasonable investment-backed
              expectations of the landowner to the extent that a taking has
              occurred. These matters cannot be resolved in definitive
              terms until a court knows "the extent of permitted
              development" on the land in question.

Palazzolo, 533 U.S. at 618 (citations omitted) (quoting MacDonald, Sommer & Frates v.

Yolo County, 477 U.S. 340, 351 (1986)). The "final decision requirement 'responds to

the high degree of discretion characteristically possessed by land-use boards in

softening the strictures of the general regulations they administer.' " Id. at 620 (quoting

Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 738 (1997)).

                                            -4-
              The Supreme Court has carved out a limited exception for cases where

further attempts to obtain approval of an application would be futile. Id. at 620; see Lost

Tree, 838 So. 2d at 573. As explained in Palazzolo,

              [w]hile a landowner must give a land-use authority an
              opportunity to exercise its discretion, once it becomes clear
              that the agency lacks the discretion to permit any
              development, or the permissible uses of the property are
              known to a reasonable degree of certainty, a takings claim is
              likely to have ripened.

533 U.S. at 620.

              GolfRock's complaint asks the trial court to declare that any further pursuit

of its application is futile. Viewed in the context of the case law on takings and ripeness,

GolfRock is asking the trial court to determine the existence of an element of its

potential as-applied regulatory takings claim. GolfRock has utterly failed to explain how

this is an appropriate claim for declaratory relief. The complaint does not allege, even in

a perfunctory fashion, that GolfRock is in doubt regarding the existence of a right,

power, privilege, or immunity as required to invoke the trial court's jurisdiction to render

a declaratory judgment. Nor has GolfRock argued its complaint can somehow be

construed to satisfy that requirement. GolfRock does not claim it is in doubt regarding

the existence of its property rights, nor does it say it is in doubt regarding the effect of

the amended comprehensive plan on the land use it had proposed in its now withdrawn

rezoning application. While the declaratory judgment act is intentionally broad, it does

have limits—one of which is that courts will not render advisory opinions or give legal

advice. See May, 59 So. 2d at 639. Because GolfRock has not met its burden to

demonstrate how its complaint is sufficient to meet the jurisdictional requirements of the




                                             -5-
declaratory judgment act, we reverse the final summary judgment and remand with

directions to the trial court to dismiss the action.

              Reversed and remanded.



LaROSE, C.J., and BADALAMENTI, JJ., Concur.




                                             -6-
