           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

               GSK HOLLYWOOD DEVELOPMENT GROUP, LLC,
                             Appellant,

                                            v.

                    THE CITY OF HOLLYWOOD, FLORIDA,
                       a Florida municipal corporation,
                                  Appellee.

                                   No. 4D16-3453

                                       [May 2, 2018]

   Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case
No. 09-032688 (13).

  Harvey W. Gurland, Jr., Scott H. Marder and Lida Rodriguez-Taseff of
Duane Morris LLP, Miami, for appellant.

  Laura K. Wendell, Daniel L. Abbott and Adam A. Schwartzbaum of
Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellee.

KUNTZ, J.

   GSK Hollywood Development Group, LLC filed a two-count complaint
against the City of Hollywood (“City”), asserting a violation of the Bert J.
Harris, Jr. Private Property Rights Protection Act (the “Harris Act”) 1 and a
violation of its substantive due process rights. The circuit court entered a
final judgment in favor of GSK on its Harris Act claim, and in favor of the
City on the substantive due process claim. On appeal, both parties
challenge the court’s findings.

   We find merit in the City’s argument on cross-appeal. 2 The then-
existing version of the Harris Act required “action of a governmental
entity.” Because GSK never asked the City to act through a permit or
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1   See § 70.001, Fla. Stat. (2010).

2We affirm, without further discussion, the issues raised by GSK on direct appeal
as moot based on our resolution of the City’s cross-appeal.
variance application, a waiver request, or otherwise, it was not entitled to
recover under the Harris Act. We reverse the court’s judgment against the
City.

                               Background

   In 2002, GSK purchased two parcels of real property located on
Hollywood Beach, intending to develop the Mirador Project, a luxury 15-
story condominium, on the property. The property was zoned to permit
construction of up to 150 vertical feet and up to 25 residential units per
acre. Before purchase, GSK spoke to the City’s Director of Planning and
Zoning, who orally confirmed the zoning.

     In 2004, while working on conceptual plans, GSK presented the
Mirador Project to various city leaders at an informal event. Following this
presentation, the mayor informed GSK that residents of Summit Towers
Condos, a neighboring condominium association, were voicing opposition
to the project. At trial, GSK presented evidence that the mayor was
receptive to Summit’s residents. The mayor responded to their emails,
writing that she had “protected the Summit from every bad project that
has come down the pike” and that “when the presentations are made and
the vote is taken, I’m sure my vote will make my friends at Summit happy
. . . as they always have.”

   Subsequently, the mayor introduced a proposal at a city commission
meeting to reduce building-height limits from 150 feet down to 65 feet.
Though the commission did not adopt the proposal, it ordered the City to
begin a study on building heights.

   After completing the study, the City’s Planning and Zoning Board
proposed a step-down ordinance, which would maintain the 150-foot
height restriction, but gradually reduce building height approaching the
beach. The commission rejected this plan on first reading while also
rejecting the mayor’s renewal of her proposal to immediately reduce
building-height limits to 65 feet.

   Days later, the mayor again placed her proposal on the agenda for the
next commission meeting and, at her request, the city attorney prepared
a new height ordinance limiting building height to 65 feet. At that meeting,
the commission rejected the step-down ordinance proposed by the City’s
Planning and Zoning Board on second reading but the Mayor’s new height
ordinance passed on first reading. The commission formally approved the
new 65 foot height ordinance at a later meeting.


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   GSK then filed its lawsuit against the City. GSK’s complaint alleged the
City violated its rights under the Harris Act by enacting a height ordinance
with a height restriction that burdened its use of the property. The City
moved for summary judgment on the basis that GSK’s failure to submit
an application to develop the property precluded it from establishing the
City had applied a law or ordinance in a manner that burdened GSK’s
property. 3 The motion for summary judgment was denied without
explanation.

   The case went to trial. The City again argued GSK failed to apply for a
permit or variance, which precluded recovery under the Harris Act. The
court heard extensive testimony on the City’s motion for directed verdict
and again when the City renewed its motion. The court, however, did not
orally rule on the issue. Instead, the record suggests the court informed
the parties three separate times that a ruling on the motion would be
forthcoming.

   After oral argument, because of concerns that the issue was not
preserved, we ordered the parties to direct the Court to any indication in
the record showing the circuit court’s ruling. The parties responded and
disagree about how the circuit court conveyed its ruling. GSK asserts the
court announced its oral ruling on liability during its instructions to the
jury.   The City argues the court announced its ruling during an
unscheduled conference call from the court to the parties and later
included its ruling on liability in the final judgment awarding damages.
Regardless, both parties agree the court rejected the City’s arguments and
found the City liable under the Harris Act.

   The City appeals the court’s ruling at summary judgment and at trial,
which rejected its argument that GSK’s failure to apply for a permit,
variance, or other formal relief precluded recovery under the Harris Act.



———————————————————————————————————————————
3 In 2010, after filing the lawsuit in 2009, GSK formally submitted a preliminary
site review plan to the City. Due to changes in the real estate market, this plan
was substantially different than the plan at issue in this lawsuit. Regardless, the
City’s Technical Advisory Committee found GSK’s project was “substantially
compliant with the requirements of preliminary review.” However, GSK informed
the City it would not be seeking a height variance and the City’s Planning and
Development Services Department refused to sign-off on the project and schedule
it for public hearing until either the application was amended to indicate a height
variance or a settlement agreement was entered into regarding the project’s
proposed height.

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                                  Analysis

   We review the court’s ruling on the City’s motion for summary
judgment, and the legal rulings during trial, de novo. Ionniedes v.
Romagosa, 93 So. 3d 431, 433 (Fla. 4th DCA 2012).

   In 1995, the “Legislature recognize[d] that some laws, regulations, and
ordinances of the state and political entities in the state, as applied, may
inordinately burden, restrict, or limit private property rights without
amounting to a taking under the State Constitution or the United States
Constitution.” § 70.001(1), Fla. Stat. (2006). As a remedy, it enacted the
Harris Act, and specifically stated in the statutory text:

      [I]t is the intent of the Legislature that, as a separate and
      distinct cause of action from the law of takings, the Legislature
      herein provides for relief, or payment of compensation, when
      a new law, rule, regulation, or ordinance of the state or a
      political entity in the state, as applied, unfairly affects real
      property.

Id.

   In this case, we are tasked with determining whether a property owner
can state a claim under the Harris Act when he or she never formally
applied to develop the property. We conclude the answer is no. A claim
relating to building restrictions under the then-existing version of the
Harris act does not accrue unless the property owner formally applied to
develop the property; thus, allowing the governmental entity to specifically
apply the law or ordinance to the property in question.

   The plain language of the statute supports our conclusion. The statute
contains several references to laws, regulations, and ordinances “as
applied,” as well as the “specific action of a governmental entity” and the
“specific use” of real property.

    The first subsection of the Harris Act states that the “Legislature
recognizes that some laws, regulations, and ordinances of the state and
political entities in the state, as applied, may inordinately burden, restrict,
or limit private property rights . . . .” § 70.001(1), Fla. Stat. (2006)
(emphasis added). It also states that “the Legislature herein provides for
relief, or payment of compensation, when a new law, rule, regulation, or
ordinance of the state or a political entity in the state, as applied, unfairly
affects real property.” Id. (emphasis added).


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    The second subsection focuses on “specific action of a governmental
entity,” and “specific use” of real property. Id. § 70.001(2) (emphasis
added). Similarly, the third subsection provides that the “term ‘action of a
governmental entity’ means a specific action of a governmental entity
which affects real property, including action on an application or permit.”
Id. § 70.001(3) (emphasis added). And the “terms ‘inordinate burden’ or
‘inordinately burdened’ mean that an action of one or more governmental
entities has directly restricted or limited the use of real property . . . .” Id.
§ 70.001(3)(e) (emphasis added).

   Finally, a later subsection provides that a “cause of action may not be
commenced under this section if the claim is presented more than 1 year
after a law or regulation is first applied by the governmental entity to the
property at issue.” Id. § 70.001(11) (emphasis added).

   Thus, the statute’s plain language establishes that a claim under the
Harris Act does not ripen until the governmental entity specifically applies
the law or ordinance to the property in question. Because the plain
language of the statute answers the question presented, we need not resort
to the rules of statutory construction. 14269 BT LLC v. Village of
Wellington, 43 Fla. L. Weekly D166, D167 (Fla. 4th DCA Jan. 17, 2018).

   While the facts here are materially different, the issue here is nearly
identical to the issue addressed en banc by the First District in City of
Jacksonville v. Smith, 159 So. 3d 888 (Fla. 1st DCA 2015). In Smith, the
majority explained that the “dispositive issue . . . is whether a property
owner may maintain an action pursuant to the Harris Act if that owner
has not had a law, regulation, or ordinance applied which restricts or
limits the use of the owner’s property.” Id. at 888–89.

   The Smiths filed a lawsuit under the Harris Act, claiming their property
was inordinately burdened by the city’s rezoning of an adjoining piece of
land, which resulted in the construction and operation of a fire station
next door. Id. at 889. Because it had taken no direct action against the
property, the City argued the Smiths failed to state a claim. Id. On appeal,
the en banc majority agreed. Id. at 894. The First District concluded that
direct action by the government as to the property in question was required
for a claim under the Harris Act to ripen. Id. Allowing a claim to be
presented when the governmental entity took no direct action “broadens
the scope of the Harris Act far beyond its intended purpose and has the
potential to open the floodgates for claims under the Act against state,
regional, and local governmental entities whenever they approve
development on one property (or conduct activities on their own property)
that adversely impacts the value of another property.” Id. at 894.

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   Judge Makar’s dissent in Smith provides further support for our
conclusion in this case. In his dissent, Judge Makar argued that “facial
claims directed to the mere enactment of a law, for example, are not
permissible until the law is applied to the property in question. Thus,
jurisdiction-wide enactments of general applicability cannot be challenged;
to do so would constitute a ‘facial’ challenge, which the Act prohibits.” Id.
at 909 (Makar, J., dissenting). Judge Makar continued, stating “[u]ntil a
government action is actually applied in a specific situation, the Act is
dormant and merely inchoate. Contrarily, when an enactment is first
applied to a property, it constitutes governmental action that may be
subject to the Act in an ‘as applied’ context.” Id. As discussed, GSK did
not request a variance from the City to deviate from the ordinance. The
ordinance at issue was never applied to the property, leaving the Harris
Act claim “dormant” and “inchoate.”

    We also acknowledge, as the Fifth District recognized in Citrus County
v. Halls River Development, Inc., 8 So. 3d 413, 420 (Fla. 5th DCA 2009),
the requirement that a property owner apply to develop property is not
absolute. In Citrus County, the Fifth District explained the difference
between a comprehensive plan and a zoning regulation. A “comprehensive
plan is similar to a constitution for all future development within the
governmental boundary”; whereas, “zoning involves the exercise of
discretionary powers within limits imposed by the comprehensive plan.”
Id. at 420–21. In that case, the property owner argued the Harris Act claim
could not be presented until an actual plan was submitted and rejected.
Id. at 422. The court disagreed with the property owner and held that a
change to a comprehensive plan can give rise to a claim under the Harris
Act because a later zoning decision “that is not in accordance with the
comprehensive plan is unlawful.” Id. at 421. In other words, there was
no action that could be taken to escape the effect of the “law or regulation”
after the comprehensive plan was implemented.

   This case is distinguishable from Citrus County. See also M & H Profit,
Inc. v. City of Panama City, 28 So. 3d 71, 78 (Fla. 1st DCA 2009) (“Citrus
County involved an amendment to a comprehensive plan which
reclassified the land use category on a particular piece of property. In this
case, we are dealing with adoption of a general land development
regulation effective throughout an entire zoning district. Citrus County is,
therefore, not controlling.”). Furthermore, GSK could have acted to escape
the zoning height requirement and, had it done so, the City may have
granted it a variance allowing the property to be built. Because GSK failed
to make a formal application to develop the property, the City did not apply


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the ordinance to the property at issue. Thus, the claim under the Harris
Act was not ripe.

    Finally, we again note that the statute has been amended and now uses
different language than the language used in the version of the statute
governing this dispute. Our holding applies to the case before us and the
version of the statute that governs this case. We express no comment
about whether the statutory amendments would have affected GSK’s
claims.

                               Conclusion

   GSK failed to seek a permit, variance, or other formal relief from the
City before filing its Harris Act claim. As such, the City took no specific
action on GSK’s property and the claim was not yet ripe. If the Legislature
intended to allow a claim in such a circumstance, it is for the Legislature
to do so. The judgment in favor of GSK is reversed with instructions to
enter judgment in favor of the City.

   Reversed and remanded.

WARNER and CONNER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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