       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA


                                       May 2, 2018


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.              )
___________________________________)



BY ORDER OF THE COURT:


       Appellant's motion rehearing en banc is denied. The court's opinion filed July 7,

2017, is withdrawn sua sponte, and the following opinion is substituted for clarification.

No further motions for rehearing will be entertained.




I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK
                                          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 May 2, 2018.

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 also § 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 that 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 its claim is ripe and that "any

continuation of the current zoning request is futile as a matter of law."




                                             -3-
              Ripeness in the context of a regulatory takings claim is a prudential

principle adopted by the Supreme Court that requires a plaintiff to "demonstrate that [he]

has both received a 'final decision regarding the application of the [challenged]

regulations to the property at issue' . . . and sought 'compensation through the

procedures the State has provided for doing so.' " Suitum v. Tahoe Reg'l Planning

Agency, 520 U.S. 725, 733-34 (1997) (quoting Williamson Cty. Reg'l Planning Comm'n

v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194 (1985)). "Florida courts have

adopted the federal ripeness policy of requiring a 'final determination from the

government as to the permissible uses of the property.' " Taylor v. Vill. of N. Palm

Beach, 659 So. 2d 1167, 1173 (Fla. 4th DCA 1995) (quoting Glisson v. Alachua Cty.,

558 So. 2d 1030, 1034 (Fla. 1st DCA 1990)); see also Lost Tree Vill. Corp. v. City of

Vero Beach, 838 So. 2d 561, 569-71, 573-75 (Fla. 4th DCA 2002).

              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 v. Rhode Island, 533 U.S. 606, 618 (2001) (citations omitted) (quoting

MacDonald, Sommer & Frates v. Yolo Cty., 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, 520 U.S. at 738). The Supreme Court has

carved out what has been characterized as a limited exception in cases where further



                                           -4-
attempts to obtain approval of an application would be futile. Id. at 619-22; see also

Lost Tree, 838 So. 2d at 573-75. 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 does not purport to assert any type of takings claim.

Rather, it asks the trial court to declare that the County's actions amount to a final

decision and that any further pursuit of its application would be futile. Viewed in the

context of the case law on takings, GolfRock is essentially asking the trial court to

determine — in the abstract — whether it can establish an as applied regulatory takings

claim. When defending its complaint, it cited no authority to support divorcing the "final

decision" determination, which is at the heart of whether a party has established a

takings claim, from the takings action itself. See id. at 621 (explaining that "until these

ordinary processes have been followed the extent of the restriction on property is not

known and a regulatory taking has not been established")(emphasis supplied)); see

generally MacDonald, 477 U.S. 340 (linking the ability to establish a taking with the

ability to show that the government has made a final determination regarding how the

land may be used); see also Lost Tree, 838 So. 2d at 573-76 (determining whether a

complaint stated a cause of action for an as-applied regulatory takings claim based on

the sufficiency of the allegations to demonstrate a final decision or alternatively to

establish that further applications were futile).




                                             -5-
              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 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-
