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


                                        IN THE DISTRICT COURT OF APPEAL

                                        OF FLORIDA

                                        SECOND DISTRICT


FRANCIS D. HUSSEY, JR. and MARY P.      )
HUSSEY, husband and wife, and           )
WINCHESTER LAKES CORPORATION,           )
a Florida corporation,                  )
                                        )
              Appellants,               )
                                        )
v.                                      )   Case No. 2D11-1224
                                        )
COLLIER COUNTY, a political subdivision )
of the State of Florida,                )
                                        )
              Appellee,                 )
                                        )
and                                     )
                                        )
FLORIDA WILDLIFE FEDERATION, INC., )
and COLLIER COUNTY AUDUBON              )
SOCIETY,                                )
                                        )
              Intervenors/Appellees.    )
__________________________________ )

Opinion filed November 14, 2014.

Appeal from the Circuit Court for Lee
County; Hugh D. Hayes, Judge.

Margaret L. Cooper of Jones, Foster,
Johnston & Stubbs, P.A., West Palm
Beach, John G. Vega of John G. Vega,
P.A., Naples, and Ronald L. Weaver
and Barbara L. Wilhite of Stearns,
Weaver, Miller, Weissler, Alhadeff &
Sitterson, P.A., Tampa, for Appellants.

Jeffrey A. Klatzkow, County Attorney,
and Steven T. Williams, Assistant
County Attorney, of Collier County
Attorney's Office, Naples, and Jamie B.
Schwinghamer and Theodore L. Tripp,
Jr., of Hahn Loeser & Parks, LLP, Fort
Myers, for Appellee.

Thomas W. Reese, St. Petersburg, for
Intervenors/Appellees.



NORTHCUTT, Judge.


              Francis and Mary Hussey sued Collier County claiming that the County's

amendment of its comprehensive future land use plan destroyed any reasonable

economic use of their land, a large, undeveloped acreage in a rural area known as

North Belle Meade. They sought compensation under the Bert J. Harris Private

Property Rights Act, § 70.001, Fla. Stat. (2007) (the Harris Act), and on a theory of

inverse condemnation. The circuit court eventually dismissed both causes of action

with prejudice. The Husseys challenge that ruling in this appeal. We reverse the

dismissal of the Harris Act claim, but we affirm the dismissal of the inverse

condemnation claim.

              The Husseys purchased the 979 acres at issue between 1989 and 1991.

The property was designated as agricultural, and mining was allowed as a provisional

use under a 1982 Collier County ordinance and, later, under the County's


                                            -2-
Comprehensive Land Use Plan adopted in 1989. The County enacted a Land

Development Code in 1991, which also allowed mining on the Husseys' property if it

was clearly incident to agriculture development. According to the Husseys' complaint,

they hired a contractor and "engaged in other activities in pursuit of rock mining

endeavors" in 2000.

              However, in July 2002 the county amended its comprehensive plan to

establish a Rural Fringe Mixed-Use District (RFMD) that included the Husseys' rural

lands in the North Belle Meade area. Lands within the RFMD were given one of three

use classifications: Receiving Lands, Sending Lands, or Neutral Lands. The

designations relevant here are Receiving Lands, which are identified as the most

appropriate for development, and Sending Lands, deemed to have the highest degree

of environmental value and sensitivity. Mining is precluded and residential development

is restricted in the Sending Lands. The Husseys' 979 acres were designated as

Sending Lands. Years of litigation followed.

              The Husseys challenged the Sending Lands designation in a September

2002 petition for formal administration with the Department of Community Affairs. In

early 2003, an administrative law judge issued a recommended order concluding that

Collier County's actions were in compliance with state and local law. The Department of

Administrative Hearings approved the ALJ's recommended order in July 2003. The

Husseys appealed to the First District Court of Appeal, which affirmed DOAH's final

order, per curiam, on September 15, 2004. Hussey v. Collier Cnty., 883 So. 2d 281

(Fla. 1st DCA 2004) (table decision).

                                            -3-
              In July 2004, the Husseys gave the County notice that they would seek

compensation under the Harris Act. See § 70.001(4)(a), Fla. Stat. (2004). On July 24,

2008, they filed an amended Harris Act notice. They filed suit in the circuit court

asserting a claim under the Harris Act and a claim for inverse condemnation on

September 11, 2008.

              Before we discuss the pertinent issues in this case, we pause to note that

this appeal is from a dismissal of the case. A motion to dismiss tests the legal

sufficiency of the complaint; it does not concern issues of fact. Davidson v. Iona-

McGregor Fire Prot. & Rescue Dist., 674 So. 2d 858, 860 (Fla. 2d DCA 1996). When

assessing a complaint's sufficiency, a circuit court must look only within its four corners

and must assume the truth of the factual allegations therein. The court's task is to

decide whether, under the asserted facts, the plaintiff could obtain relief. Carmona v.

McKinley, Ittersagen, Gunderson & Berntsson, P.A., 952 So. 2d 1273, 1275 (Fla. 2d

DCA 2007). When reviewing an order dismissing a complaint on appeal, this court also

must accept the facts stated in the complaint as true. Lutz Lake Fern Rd. Neighborhood

Grps., Inc. v. Hillsborough Cnty., 779 So. 2d 380, 383 (Fla. 2d DCA 2000). It is clear to

us from the briefs and the oral argument that the parties disagree on many facts in this

case. But we cannot resolve those factual disputes, nor could the circuit court on a

motion to dismiss. We confine this opinion to the legal issues of whether the causes of

actions alleged were timely and whether the complaint stated causes of actions under

which the plaintiffs could obtain relief. We apply the de novo standard of review. See

id.

                                            -4-
                                  THE HARRIS ACT CLAIM

              The circuit court dismissed the Husseys' Harris Act claim with prejudice. It

did not state its reasons in the order of dismissal, nor did it make findings at the hearing.

At a prior hearing, however, the court expressed concerns that the Husseys could not

state a cause of action under the Harris Act because the RFMD amendments to the

Collier County Land Use Plan were "general" ordinances, whereas only an "as-applied"

challenge was cognizable under the act. The court relied on M & H Profit Inc. v. City of

Panama City, 28 So. 3d 71 (Fla. 1st DCA 2009). In its brief, the County also contends

that the claim is barred by the statutes of limitation and that the Husseys did not give

proper notice of their Harris Act claim. As we will explain, we find no merit in either the

court's theory or the County's.

              A. Timeliness

              I. Statute of Limitations. At the outset we note that the County

acknowledged at oral argument that the Husseys' Harris Act claim was timely filed. The

limitations period for filing a Harris Act suit is four years, and it begins on the date that

the governmental action inordinately burdens the property. See § 95.11(3)(f), Fla. Stat.

(2008); P.I.E., LLC v. DeSoto Cnty., 133 So. 3d 577, 578 (Fla. 2d DCA 2014) (citing

Wendler v. City of St. Augustine, 108 So. 3d 1141, 1146 (Fla. 5th DCA), review denied,

122 So. 3d 867 (Fla. 2013)). The Act contains a tolling provision, albeit one that is

somewhat confusing. Section 70.001(11) provides:

              (11) 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

                                              -5-
              property at issue. If an owner seeks relief from the
              governmental action through lawfully available administrative
              or judicial proceedings, the time for bringing an action under
              this section is tolled until the conclusion of such proceedings.

§ 70.001(11), Fla. Stat. (2008). While this language is not entirely clear, we agree with

the court in Wendler that property owners have "four years (plus any tolling time) to file

their complaint under the Harris Act." 108 So. 3d at 1146 (emphasis supplied).

              Here, the County conceded that the limitations period commenced on

September 15, 2004, the date the First District affirmed the DOAH determination that

the RFMD amendments were proper, thereby ending the Husseys' administrative and

judicial proceeding. We agree that, pursuant to the tolling provision in subsection

70.001(11), this was the date that the cause of action accrued, i.e., it was "when the last

element constituting the cause of action occurred." See § 95.031(1); Sarasota Welfare

Home, Inc. v. City of Sarasota, 666 So. 2d 171, 173 (Fla. 2d DCA 1995). Therefore, the

Husseys' September 11, 2008, lawsuit was filed within the limitations period.

              II. Notice of Harris Act claim. Section 70.001(11), quoted above, requires

that property owners notify the governmental entity of their Harris Act claim within one

year after the regulation is applied to their property, else they lose the right to pursue a

cause of action. The tolling provision in that section has been applied to toll the one-

year notice period. See Wendler, 108 So. 3d at 1146 (stating that the property owners'

request for demolition permits was denied in 2007, but because they appealed that

decision, lost, and then filed a petition for certiorari relief, their notice under the Harris

act was timely filed in May 2010, a month after they dismissed the certiorari petition).


                                               -6-
The Husseys' complaint alleged that they served their notice on July 21, 2004.1 This

notice advised the County that they were seeking compensation under the act, and it

was timely under section 70.011(4)(a). The County then had 180 days to investigate

and determine whether to make concessions, during which the Husseys were precluded

from filing suit on the Harris Act claim. See § 70.011(4)(b). Neither the Husseys nor the

County can say conclusively whether the County ever entered a written "ripeness"

decision, § 70.011(5)(a), but both parties agree that the County stood its ground and did

not offer to settle the Husseys' claim. As earlier noted, the Husseys did not file their

lawsuit until September 11, 2008. Thus they honored the statutory mandate that no suit

can be filed until 180 days after the governmental entity is given notice of the claims.

See § 70.011(4)(a).

              B. As applied challenge

              In M & H Profit, the First District held that the Harris Act authorized only

as-applied challenges to government actions. Thus, the Act does not provide a cause

of action when a governmental entity adopts an ordinance of general applicability but

has taken no steps to apply that ordinance to a particular property. 28 So. 3d at 73, 76.

In that case, Panama City enacted a new height and setback ordinance pertaining to a

zoning classification that included M & H's property. M & H had informal discussions

with the city about obtaining a construction permit, after which the city explained that,


              1
              As noted in the discussion of the statute of limitations, the County
conceded that the administrative and judicial process that invoked the tolling period in
section 70.001(11) ended with the First District's affirmance of DOAH's final order on
September 15, 2004. Thus this notice was filed even before that occurrence.

                                             -7-
"after a cursory review" the proposed construction would not meet the new height and

setback rules. M & H never formally submitted a permit request, but instead it tendered

a notice of its intention to file a claim under the Harris Act. Id. at 73.

              Panama City rejected the claim as outside the scope of the Act. M & H

then filed a Harris Act suit, but the circuit court dismissed it, agreeing with the city that

the Act provided compensation only for as-applied challenges. The First District

affirmed, remarking that the Panama City ordinance "does not change the land use

classification or zoning category on any particular piece of property." Id. at 74. But the

court also distinguished Citrus County v. Halls River Development, Inc., 8 So. 3d 413

(Fla. 5th DCA 2009), because that case "involved an amendment to a comprehensive

plan which reclassified the land use category on a particular piece of property." Id. at 78

(emphasis supplied).

              This case differs from M & H Profit in the same way. The amendments to

Collier County's land use plan were applied to the Husseys' property by their very terms.

Properties within the RFMD in North Belle Meade were specifically identified and

designated as Receiving, Sending, or Neutral Lands. A Collier County map attached to

the Husseys' second amended complaint specifically shows which lands in the RFMD

received which designation. No one disputes that the Husseys' lands were designated

as Sending Lands, a classification under which previous potential uses were prohibited

and residential development was restricted. The circuit court erred by dismissing this

case under the theory that the amendment had not been applied specifically to the

Hussey's property.

                                              -8-
                           INVERSE CONDEMNATION CLAIM

              The circuit court did not directly address the Husseys' inverse

condemnation claim, other than to dismiss it pursuant to M & H Profit, which indicated

that the court thought the ordinance had not been applied to the Husseys' property.

This count of their complaint asserted a regulatory taking, which is certainly an as-

applied challenge to the County's Land Use Plan. See Taylor v. Vill. of N. Palm Beach,

659 So. 2d 1167, 1170-71 (Fla. 4th DCA 1995) (discussing various categories of takings

and stating that "[i]n an as-applied claim, the landowner challenges the regulation in the

context of a concrete controversy specifically regarding the impact of the regulation on a

particular parcel of property."). But as we have explained, the County's plan has been

applied to the Husseys' lands. Accordingly, the court's decision to dismiss the inverse

condemnation claim on this basis was incorrect.

              Our analysis of the statute of limitations for this claim, however, differs

from our analysis under the Harris Act. The limitations period for the two actions is the

same—four years. Cf. Sarasota Welfare Home, 666 So. 2d at 172-73. But as we

explained in our earlier discussion, the Harris Act tolls the time for filing an action while

an owner seeks relief "through lawfully available administrative or judicial proceedings."

See § 70.001(11). No such tolling provision applies to an inverse condemnation action

based on a regulatory taking. The statute of limitations for that cause of action begins

running when the landowner's claim is ripe for judicial review, i.e. when the

governmental entity has made a final decision about the permissible use of the property.

Collins v. Monroe Cnty., 999 So. 2d 709, 715 (Fla. 3d DCA 2008). The ordinance

                                             -9-
imposing the regulations in this case, Collier County Ordinance number 02-32, specifies

when that final decision occurs: "The effective date of these amendments shall be the

date a final order is issued by the Department of Community Affairs or Administration

Commission finding the amendment in compliance in accordance with Section

163.3184, Florida Statutes, whichever occurs earlier." The Husseys challenged the

Sending Lands designation by filing a petition with the Department of Community

Affairs. The petition was referred to the Department of Administrative Hearings. DOAH

entered its final order on the matter on July 22, 2003.

              The Husseys' inverse condemnation claim became ripe on that date and

the four-year statute of limitations began running. Accordingly, their action for inverse

condemnation, filed on September 15, 2008, was barred by the statute of limitations.

The dismissal of that claim was proper, albeit for the wrong reason.

                                     CONCLUSION

              We reverse the dismissal of the Husseys' Harris Act claim and remand for

further proceedings. Our ruling applies only to the matters specifically addressed in this

opinion. See Lutz Lake Fern Rd., 779 So. 2d at 383. We affirm the dismissal of the

Husseys' inverse condemnation claim.

              Affirmed in part, reversed in part, and remanded.


 
CASANUEVA and KELLY, JJ., Concur.




                                           -10-
