Southeast Development Partners, LLC v. St. Johns County, Florida

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SOUTHEAST DEVELOPMENT

PARTNERS, LLC, & SOUTHEAST

LAND VENTURES, LLC,

Plaintiffs and Counter-

Defendants, 3:23-cv-00846-CRK-PDB

v.

ST. JOHNS COUNTY, FLORIDA,

Defendant and

Counterclaimant.

INTRODUCTION

This case involves a dispute arising from a contract between a county and a

developer, where the cost to improve a road in connection with a development under

the contract far exceeded estimated costs. The county maintains the developer

committed to building the road regardless of the cost, while the developer maintains

that its cost commitments were limited. Before the Court is a motion for summary

judgment filed by Defendant and Counterclaimant St. Johns County, Florida (the

“County”), and a motion for partial summary judgment filed by Plaintiffs and

Counter-Defendants Southeast Development Partners, LLC (“SEDP”) and Southeast

Land Ventures, LLC (“SELV”),1 filed in connection with the suit brought in this Court

1 Although SEDP and SELV are both named plaintiffs, as will be discussed more

fully below, SEDP assigned its rights and obligations under the Agreement to SELV.

See County Mot. at 10–11; Dev. Mot. at 8.

by SEDP and SELV. See generally [County’s] Mot. Summ. J. & Memo. L Supp’n, Apr.

26, 2024, ECF No. 44 (“County Mot.”); [Dev.’s] Mot. Partial Summ. J., Apr. 26, 2024,

ECF No. 47 (“Dev. Mot.”). The County moves for summary judgment on its claims as

well as those alleged by SELV and SEDP. See County Mot. at 1–2; see also [Dev.’s]

Am. Compl. For Decl., Inj., & Other Relief at ¶¶ 51–77, July 21, 2023, ECF No. 5

(“Am. Compl.”); [County’s] Sec. Am. Counterclaim For Decl. J. & Supp. Relief at

¶¶ 35–42, Jan. 3, 2024, ECF No. 31 (“SACC”). SELV and SEDP similarly move for

summary judgment on all of the County’s claims and all of their own except for their

allegations of unlawful exaction, under 42 U.S.C. § 1983, against the County in Count

IV of the amended complaint. See Dev. Mot. at 1–2; Am. Compl. at ¶¶ 51–77; SACC

at ¶¶ 35–42. For the following reasons, the County’s motion is granted, and SEDP

and SELV’s motion is denied.

BACKGROUND2

In September of 2016, SEDP applied to the County for a large-scale

comprehensive plan3 amendment for the Grand Oaks Planned Unit Development

(“Grand Oaks PUD”), consisting of approximately 524 acres of land owned by Day

Late (the “Property”), located on the south side of State Road 16 (“SR 16”). County

Mot. at 3; Dev. Mot. at 7. SEDP’s proposed development of a “mixed-use project

2 The factual background is based on the agreed upon facts in the parties’ statements

of undisputed facts, contained in their respective motions before the Court and the

exhibits filed in support of their motions.

3 A county’s “comprehensive plan” provides “the principles, guidelines, standards,

and strategies for the orderly and balanced future economic, social, physical,

environmental, and fiscal development of the area that reflects community

commitments to implement the plan and its elements.” Fla. Stat. § 163.3177(1).

including a maximum of 999 residential units, 100,000 square feet of commercial

space, and 50,000 square feet of office space.”4 County Mot. at 3; see Dev. Mot. at 8.

The County’s comprehensive plan required SEDP to show a “public benefit” that

would justify changing zoning designations. County Mot. at 5; Dev. Mot. at 7.

Additionally, the County’s Land Development Code required SEDP to enter

into a Concurrency and Impact Fee Credit Agreement (the “Agreement”),5 with the

County to initiate the Grand Oaks PUD. See St. John’s County’s Land Development

Code, as codified in St. Johns, Fla., Land Dev. Code art. XI § 11.09.00 (implementing

Fla. Stat. § 163.3190) (“LDC”). See County Mot. at 4; Dev. Mot. at 4, 7. The

Concurrency Agreement would mitigate transportation impacts of the development.

County Mot. at 4; Dev. Mot. at 10. The BOCC determined that the Grand Oaks PUD

4 SEDP also submitted a map amendment to the Comprehensive Plan Future Land

Use Map, changing the Property’s designation from Rural/Silviculture to Residential

C. County Mot. at 4; Dev. Mot. at 7. SEDP applied to rezone the Property from Open

Rural to Planned Unit Development to accommodate the proposed units in the

development. County Mot. at 4; Dev. Mot. at 7.

5 Concurrency ensures that public facilities and services expand at the same time as

the demands of a new development. See Fla. Stat. § 163.3180(5)(d); see also LDC

§ 11.09.01 (explaining the purpose of transportation concurrency is to mitigate the

impacts of a development on transportation). Consequently, concurrency requires

subject property developers to “‘pay for a proportionate share of the costs of the

expansion of public services’ if the ‘existing public services are inadequate’ to support

a new development.” Eisenhower Prop. Grp., LLC v. Hillsborough Cnty., No. 8:21-

CV-229-VMC-TGW, 2021 WL 2660973, at *1 (M.D. Fla. June 29, 2021) (citing Fla.

Stat. § 163.3180). The County, having adopted transportation concurrency,

implements the system through its Proportionate Fair Share Program (“Program”),

codified in Section 11.09.00 of the County’s LDC. See LDC § 11.09.01. Proportionate

share contributions “may include, without limitation, separately or collectively,

private funds, contributions of land, and construction and contribution of facilities,”

which are then applied as credit toward the road impact fees for the development.

LDC §§ 11.09.06A, E.

would generate additional external peak hour trips on various roadway segments,

including the parts of SR 16 serving as the access road to the development. County

Mot. at 4; Dev. Mot. at 10. Because the BOCC staff had determined that the affected

roads were inadequate to accommodate the impacts to the development, SEDP

contracted Chindalur Traffic Solutions, Inc. (the “Analyst”) to perform a land

development traffic analysis. County Mot. at 4 (first citing Exh. 11B: Agenda for the

BOCC Meeting, July 17, 2018, ECF No. 42-17; and then citing Exh. 11C: Agenda Item

& Staff Rep. For Appr. Proportionate Fair Share Agr. at 4, June 15, 2018, ECF No.

42-17 (“Staff Rep.”)); Dev. Mot. at 10. The analysis yielded an estimated

proportionate share contribution amount of $10,132,643.00 to remedy roadway link

deficiencies attributable to the Grand Oaks PUD. County Mot. at 4; Dev. Mot. at 10.

To satisfy both its concurrency obligations and the public benefit requirement,

SEDP proposed to widen three miles of SR 16 leading up to the entrance of the Grand

Oaks PUD (“SR 16 Improvements”). County Mot. at 5; Dev. Mot. at 9. At the time,

SEDP’s Analyst estimated the SR 16 Improvements to total $15,000,000.00. County

Mot. at 5; Dev. Mot. at 8. Of that total, the BOCC would consider $10,132,643.00 to

be SEDP’s proportionate share contribution in satisfaction of its concurrency

obligations, and the remaining $4,867,357.00 to be the public benefit. County Mot.

at 5; Dev. Mot. at 8. The Concurrency Agreement provided for the funding of the

improvements to SR 16:

At the time [SEDP] achieves Commencement, [SEDP] may apply

to the County for a release of the Escrow Funds to [SEDP], which

[SEDP] shall then have the right to use for payment of all Pre-

Construction Costs, Permits Costs and costs related to construction of

the SR 16 Improvements (the “Construction Costs”). [SEDP]

understands that the Escrow Funds shall not be sufficient to pay the

Estimated Total Cost of the SR 16 Improvements and [SEDP] agrees

that it shall pay all costs for the SR 16 Improvements which are in excess

of the Escrow Funds.

Agr. at § 4e(vi); see County Mot. at 7–8; id. at 8 n.2

After Commencement,6 SEDP can request that the County disburse the

Escrow Funds to fund the SR 16 Improvements. Agr. at § 4e(vi); see County Mot. at

9–10, 31; Dev. Mot. at 12. “Escrow Funds” refers to the specific amounts that SEDP

would pay the County (“Per Unit Payments”) at certain times. Agr. at § 4e(iv); see

County Mot. at 9; Dev. Mot. at 12.7 The County agreed to “hold the aggregate Per

Unit Payments” in “a separate escrow account”—defined as “Escrow Funds”—to be

used exclusively for SR 16 Improvements.8 Agr. at § 4e(iv)(b); see County Mot. at 9;

Dev. Mot. at 12. As Grand Oaks PUD was developed, the Per Unit Payments,

collected by the County pursuant to Section 4e(iv) of the Agreement, were identified

by the County in a balance sheet liability account within the “transportation trust

fund,” earmarked for expenditures related to the Grand Oaks PUD. See Exh. 14:

6 Commencement is defined as “the Applicant posting a bond for the SR 16

Improvements with [the Florida Department of Transportation (‘FDOT’)].” Agr. at

§ 4e(v); see Dev. Mot. at 14.

7 For the first 212 residential units constructed in the development, SEDP would pay

$7,500.00 per unit. Agr. at § 4e(iv)(a); see County Mot. at 9; Dev. Mot. at 12. Starting

with the 213th unit, SEDP’s owed sum rose to $15,000.00 per unit within each plat.

Agr. at § 4e(iv)(b); see County Mot. at 9; Dev. Mot. at 12.

8 Although the Agreement requires that SEDP pay the County the Escrow Funds,

SEDP structured the transactions to be paid by the homebuilders who acquire

property within the Grand Oaks PUD to construct the homes. See Exh. 3: Dep. Keith

Hyatt at 95:10–97:14, Mar. 13, 2024, ECF No. 42-3 (“Hyatt Dep.”); County Mot. at 12;

Dev. Resp. at 14.

Dep. Jesse Dunn at 18:5–20:22, Dec 8, 2023, ECF No. 42-21 (“Dunn Dep.”). The

account was not a separate bank account, but rather a separately identified account

within the fund accounting system used by the County. See Exh. 19: Dep. Wade

Schroeder at 85:1–85:24, 102:14–104:8, Mar. 20, 2024, ECF No. 42-19 (“Schroeder

Dep.”).

Further, SEDP would, within sixty days of the effective date of the Agreement,

(1) commence acquisition of offsite drainage ponds (“Pond Acquisition”) for the SR 16

Improvements and (2) in coordination with FDOT, commence design of the SR 16

Improvements (“Road Design”). Agr. at § 4e(i); see County Mot. at 9; Dev. Mot. at 13.

Section 4e(ii) required that Section 4e(i) be completed “prior to the earlier of” either

fourteen months of the effective date, or the BOCC’s approval of a plat containing the

443rd residential unit as a condition of such approval, defined as “the Design Period.”

Agr. at § 4e(ii); see County Mot. at 9; Dev. Mot. at 13. Within 30 days following the

end of the Design Period, SEDP would “apply for and pursue all FDOT,

environmental and other permits and required governmental approval for the SR 16

Improvements,” all of which had to be obtained within one year of the end of the

Design Period. Agr. at § 4e(iii); see County Mot. at 9; Dev. Mot. at 13.

The Agreement required the County to adopt SEDP’s SR 16 Improvements

“into the County's Five-Year Schedule of Capital Improvements in the County’s

Capital Improvements Element (“CIE”) of its Comprehensive Plan at the next

scheduled update.” Agr. at § 6c; see County Mot. at 10; Dev. Mot. at 9–10.

Finally, the Agreement set forth the remedies for breach, including (1) “all

remedies available at law or in equity”, (2) specific performance, (3) injunctive relief,

(4) the County’s right to “halt approval of additional plats or construction plans,” and

(5) the County’s right to retain the Escrow Funds. Agr. at § 11; see County Mot. at

10. The parties incorporated into the Agreement an attachment titled “Exhibit C,”

which contained the “SR 16 Improvements and Engineering Cost Estimate” as

prepared by SEDP’s Analyst. See Agr. at Exh. C; County Mot. at 7; Dev. Mot at 11–

12; see also Agr. at § 16 (incorporating all exhibits appended to the Agreement).

On October 1, 2018, in accordance with Section 13 of the Agreement,9 SEDP

executed an instrument, Assignment of Dev. Rights at 1–2, Oct. 1, 2018, ECF No. 5-

2 (“Assignment”) assigning its development rights under the Agreement to SELV.

County Mot. at 10–11; Dev. Mot. at 8. Specifically, SEDP contracted to sell, assign,

transfer, convey, and allocate to SELV all:

present and future rights, title and interest, if any, relating to the

Property in the following[]: existing permits, approvals, rights, plans,

reports, studies, site plans, surveys, marketing and engineering studies

and reports, engineering plans, warranties, utility rights and capacities

including all water and sewer agreements, guaranties, bonds and

similar rights and interests relating solely to the Property, including but

not limited to, all site improvement construction plans and engineering

drawings together with all other planned unit development rights,

entitlements and concurrency and impact fee agreements pertaining to

or benefiting the Property issue by [the County].

9 Under Section 13 of the Agreement, all rights and obligations of SEDP could be

“assigned and delegated to a successor or owner/developer.” Agr. at § 13; County Mot.

at 2, 9–11; Dev. Mot. at 8, 12. If SEDP assigned its rights to such a party, then SEDP

would be “relieved of further liability under this Agreement.” Agr. at § 13; County

Mot. at 2, 9–11; Dev. Mot. at 8, 12.

Assignment at 1–2. Clause 4 of the Assignment stated that transfer of rights “shall

be binding on and inure to the benefit of the parties and their respective heirs, legal

representatives, successors and assigns, and the benefits hereof shall run with the

land.” Id. at 2. The County acknowledged the Assignment on October 3, 2018.10 Id.

at 3.

Starting in November 2018, SELV sought to toll its deadlines for the Grand

Oaks PUD, citing declared states of emergency in Florida pursuant to under Fla. Stat.

§ 252.363(1)(b). See Dev. Mot. at 17; [County] Resp. Opp’n [Dev. Mot.] at 4, May 17,

2024, ECF No. 50 (“County Resp.”). Specifically (1) on November 27, 2018, it invoked

the opioid epidemic, Hurricane Maria, and Hurricane Florence; (2) on March 5, 2020,

it invoked Hurricane Dorian; and (3) on August 28, 2021, it invoked the Covid-19

pandemic. See Exhs. 16A–E: Grand Oaks E.O. Ext. Not., Nov. 26–27, 2018, Mar. 5,

2020, Aug. 18, 2021, Sept. 8, 2021, ECF Nos. 48-19–48-23 (“EO Ext. Nots.”); see also

Dev. Mot. at 17; County Resp. at 4.

In August of 2021, a contractor hired by SELV began coordinating with FDOT

to design the SR 16 Improvements pursuant to Section 4e(i) of the Agreement. See

Dep. William Earnest Schaefer, II at 76:14–22, 83:3–84:25, Mar. 29, 2024, ECF No.

48-10 (“Schaefer Dep.”); see also County Mot. at 15–16; Dev. Mot. at 15–16. FDOT

indicated that revisions to the plan were required, including some that amounted to

a “complete redesign” of those drafted by SELV. See, e.g., Schaefer Dep. at 81:4–19;

10 SELV began development of the Grand Oaks PUD on October 1, 2018. County

Mot. at 10–11; Dev. Mot. at 8.

Schaefer Dep. at Exh. 42; see also County Mot. at 16–17; Dev. Mot. at 15–16. The SR

16 Improvements with FDOT’s revisions increased SEDP’s funding obligations to an

estimated cost of $57 million. See, e.g., Schaefer Dep. at 81:4–19; Schaefer Dep. at

Exh. 42; see also County Mot. at 16, 46; Dev. Mot. at 15–16.

After FDOT’s revisions of the SR 16 Improvements design, SELV, in a series

of communications over multiple months, sought to amend the Agreement with the

County. County Mot. at 15; Dev. Mot. at 19. The amendment proposed, inter alia,

that SELV pay FDOT $15,000,000.00—the amount equal to its Total Project

Transportation Contribution under the Agreement—who would then design and

complete the SR 16 Improvements. County Mot. at 16; Dev. Mot. at 19. The

$15,000,000.00 payment would effectively satisfy SELV’s obligations to construct the

SR 16 Improvements under the Agreement. County Mot. at 16; Dev. Mot. at 19.

In May of 2022, a check for approximately $2,415,000.00 Per Unit Payment

check was issued to the County. County Mot. at 13; Dev. Mot. at 21. However, that

check was never deposited into the account holding the Per Unit Payments. County

Mot. at 13; Dev. Mot. at 21. In February of 2023, the check was reissued to and

deposited by the County into the account. County Mot. at 13; Dev. Mot. at 21. A few

months later, in May of 2023, the County Clerk moved the Per Unit Payments into a

newly established separate bank account with Bank of America, where all Per Unit

Payments currently remain. County Mot. at 13; Dev. Mot. at 12–13. To date, the

account contains $5,040,000.00 in payments made under the Agreement. County

Mot. at 13; Dev. Mot. at 13.

On February 21, 2023, the BOCC held a hearing on SELV’s proposed

amendment to the Agreement. County Mot. at 17; Dev. Mot. at 19. The BOCC

rejected SELV’s proposed amendment. County Mot. at 17; Dev. Mot. at 20. Moreover,

the BOCC found SELV in default of the Agreement for failing to comply with certain

terms of the Agreement. County Mot. at 17; Dev. Mot. at 20. Given the finding of

SELV’s default, the BOCC directed that the $5,040,000.00 collected from the Per Unit

Payments, now non-refundable under Section 11 of the Agreement, be transferred to

the FDOT for commencement and completion of the SR 16 Improvements. County

Mot. at 17; Dev. Mot. at 20.

On March 14, 2023, SEDP and SELV filed a civil action against the County in

the Circuit Court of the Seventh Judicial Circuit in and for St. Johns County, Florida.

See Civil Cover Sheet, Mar. 14, 2023, ECF No. 1-4. In responding to the state court

complaint, the County counterclaimed against SEDP and SELV and impleaded third-

party Defendant Day Late under Florida Rule of Civil Procedure 1.170 and Fla. Stat.

§ 86.091. See generally Def. Answer & Aff. Defs. to Compl., Counterclaim, & Third

P. Compl., May 16, 2023, ECF No. 1-4; Summons, May 16, 2023, ECF No. 1-4.11 After

the complaint was amended, the County removed the action to the United States

11 On January 17, 2024, Day Late moved to dismiss the County’s claims against it in

the SACC for misjoinder and for failure to state a claim upon which relief could be

granted. See generally [Day Late’s] Mot. Dismiss [SACC] & Inc. Memo. L., Jan. 17,

2024, ECF No. 33. On September 10, 2024, the Court dismissed Day Late from the

instant action under Federal Rule of Civil Procedure 21. See Order & Opinion, Sept.

10, 2024, ECF No. 68.

District Court for the Middle District of Florida. See Not. Removal at 1–3, July 20,

2023, ECF No. 1.

On July 21, 2023, SEDP and SELV filed the amended complaint. See generally

Am. Compl. They allege four causes of action, including those for declaratory,

injunctive, and other relief, against the County concerning the Agreement, including:

judgment declaring the County’s interpretation of the Agreement and finding of

default invalid, illegal, and unconstitutional (Count I); a permanent injunction

enjoining the County from breaching the Agreement and disbursing the Escrow

Funds (Count II); a finding of inverse condemnation under Fla. Const. art. X, § 6(a)

(Count III); a finding of unlawful exaction under 42 U.S.C. § 1983 (Count IV). Id. at

¶¶ 51–77.

The County, after amending its answer, affirmative defenses, and

counterclaim in response to the amended complaint, filed the SACC on January 3,

2024. See generally SACC. In the SACC, the County counterclaimed against SEDP,

SELV, and Day Late, impleaded under Federal Rule of Civil Procedure 19(a)(1)(B),

for two causes of action. See id. at ¶¶ 6, 35–42. Count I alleges breach of contract

and requests judgment declaring the rights and authority of the County upon the

SELV’s breach of the Agreement, including its ability (1) to halt approval and

construction of additional plats, (2) to retain the Escrow Funds, and (3) require SELV

to assign the Road Design documents and any permits to the County, free of charge.

Id. at ¶¶ 35–39. In the alternative, Count II request declaratory judgment for SELV’s

specific performance under the Agreement as valid and binding. Id. at ¶¶ 39–42.

On April 26, 2024, the parties submitted their respective motions before the

Court. See generally County Mot; Dev. Mot. The motions were fully briefed on May

31, 2024. See generally [Dev.’s] Resp. Opp’n [County Mot.], May 17, 2024, ECF No.

51 (“Dev. Resp.”); [County’s] Reply Supp’n [County Mot.], May 31, 2024, ECF No. 52

(“County Reply”); [Dev.’s] Reply To [County Resp.], May 31, 2024, ECF No. 53 (“Dev.

Reply”).

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over “all civil actions arising under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331. The Court has supplemental

jurisdiction “over all other claims that are so related to the claims in the action within

such original jurisdiction that they form part of the same case or controversy under

Article III of the United States Constitution.” 28 U.S.C. § 1367(a).12 When a state

claim attaches to a federal claim under Section 1367, the Court must apply

substantive state law to those claims. Lundgren v. McDaniel, 814 F.2d 600, 605 (11th

Cir. 1987).

The Court will grant a motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the

12 Count IV of the amended complaint seeks declaratory relief against the County for

“violating due process rights guaranteed by the Fifth and Fourteenth Amendments

to the U.S. Constitution” pursuant to 42 U.S.C. § 1983, thus giving the Court federal

question subject-matter jurisdiction. See Am. Compl. at ¶¶ 71, 77. The remaining

state law claims attach to Count IV under 28 U.S.C. § 1367(a). See id. at ¶¶ 51–69;

SACC at ¶¶ 35–42.

burden of showing that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(citing Fed. R. Civ. P. 56(c)). The moving party must support its motion with the

relevant portions of the pleadings, answers to interrogatories, depositions,

admissions on file, and any affidavits, which it believes demonstrate its entitlement

to summary judgment. Id. at 323–24.

If the movant shows there are no genuine issues of material fact, “the burden

shift[s] to the non-moving party to demonstrate that there is indeed a material issue

of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d

604, 608 (11th Cir. 1991). Issues of fact are genuine only if a reasonable jury,

considering the evidence presented, could find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The non-movant “must do more than

simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather,

the non-movant must present “affirmative evidence” of material factual conflicts to

defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at

257; Varnedoe v. Postmaster Gen., No. 21-11186, 2022 WL 35614, at *3 (11th Cir.

Jan. 4, 2022). A fact is “material” if it may affect the outcome of the suit under

governing law. See Burgos v. Chertoff, 274 F. App’x 839, 841 (11th Cir. 2008). If a

party fails to properly support an assertion of fact or address another party’s

assertion of fact, the Court may consider the fact undisputed or grant summary

judgment “if the motion and supporting materials—including the facts considered

undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2)–(3).

The Court resolves all reasonable doubts in favor of the nonmoving party when

evaluating a motion for summary judgment. Feliciano v. City of Miami Beach, 707

F.3d 1244, 1247 (11th Cir. 2013). When conflicts arise between the facts presented

by the parties, the Court credits the nonmoving party’s version. Id. at 1252.

Moreover, the Court cannot weigh conflicting evidence to resolve factual disputes.

See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Summary judgment

must be denied if the Court determines there are factual issues disputed by the

parties, and the case proceeds to trial. Marquez v. Costco Wholesale Corp., 550 F.

Supp. 3d 1256, 1272 (S.D. Fla. 2021).

DISCUSSION

I. Claims For Declaratory Relief

The County seeks a declaration of rights of the Agreement, including that: (1)

under the Agreement, SELV is obligated to pay all costs for the SR 16 Improvements;

(2) SELV breached the Agreement by failing to comply with the Conditions of the

Agreement; (3) the County, in responding to a breach of the Agreement, has authority

to (i) halt approval of additional plats or construction plans within the Grand Oaks

PUD until and unless SELV complies with the conditions of the Agreement or some

other entity constructs the SR 16 Improvements; (ii) use the Per Unit Payments, now

non-refundable to SELV, to construct the SR 16 Improvements or another road

improvement; and (iii) require SELV to assign the Road Design documents and any

Permits to the County, free of charge.13 See County Mot. at 19, 35, 37; SACC at

¶¶ 35–39. The County also challenges SEDP’s standing to bring claims for

declaratory relief under the Agreement given its assignment of all contractual rights

to SELV. See County Mot. at 46–47. SEDP and SELV dispute the County’s

contentions, arguing that both SEDP and SELV have standing to bring claims under

the Agreement, and further seeks declaratory relief because (1) the County’s default

finding was improper based on SELV’s tolling of any deadlines and the County’s

subsequent waiver of enforcement, and (2) the County breached the Agreement. Dev.

Mot. at 23–37; Am. Compl. at ¶¶ 51–64. Because summary judgment for the County

is proper on all claims, its motion is granted; SEDP and SELV’s motion is denied.

A. Standing

The County challenges SEDP’s standing to assert rights under the Agreement

as contained in Counts I and II, arguing that SEDP lacks standing because of its

assignment to SELV on October 1, 2018.14 County Mot. at 39–47; see also Dev. Mot.

at 44–45. SEDP argues the claims in Count I and Count II survive despite the

assignment because of SELV’s standing to bring the claims, as the “presence of one

party with standing is sufficient” to satisfy Article III. Dev. Mot. at 44–45. For the

13 Alternatively, the County seeks a final judgment declaring that SELV breached

the Agreement and should specifically perform its obligations pursuant to the terms

and parameters set forth in the Agreement. County Mot. at 37–38; SACC at ¶¶ 40–

42.

14 Standing is necessary for subject-matter jurisdiction, which is a threshold inquiry

as it empowers the Court to hear a case. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–

60 (1992); United States v. Cotton, 535 U.S. 625, 630 (2002).

following reasons, SELV has standing to bring Counts I and II of the amended

complaint.

A plaintiff must have standing to sue under Article III of the U.S. Constitution.

U.S. Const. art. III, § 2; FDA v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024);

Lujan, 504 U.S. at 560. To have standing, plaintiffs must demonstrate that they have

a “personal stake” in the issue sought to be heard by a federal court. See All. for

Hippocratic Med., 602 U.S. at 379 (citing TransUnion LLC v. Ramirez, 594 U.S. 413,

423 (2021)). A plaintiff possesses a personal stake in a matter if: (1) the plaintiff

suffered an injury in fact (2) that was fairly traceable to the defendant’s actions, and

(3) that the injury will likely be redressed by a favorable decision from the Court. Id.

at 380, TransUnion, 594 U.S. at 423; Lujan, 504 U.S. at 560–61. “The party invoking

federal jurisdiction bears the burden of establishing standing—and, at the summary

judgment stage.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411–12 (2013)

(internal citations, quotations, and alterations omitted).

Under Florida contract law,15 “[a]ll contractual rights are assignable unless

the contract prohibits assignment, the contract involves obligations of a personal

nature, or public policy dictates against assignment.” Kohl v. Blue Cross & Blue

Shield of Fla., Inc., 988 So.2d 654, 658 (Fla. Dist. Ct. App. 2008); see also Kitsos v.

Stanford, 291 So.2d 632, 634 (Fla. Dist. Ct. App. 1974). “Once an assignment has

15 The parties do not challenge the applicability of Florida contract law. See generally

County Mot. (citing Florida contract law throughout); Dev. Mot. (citing Florida

contract law throughout).

been made, the assignor no longer has a right to enforce the interest because the

assignee has obtained all rights to the thing assigned.” One Call Prop. Servs. Inc. v.

Sec. First Ins. Co., 165 So.3d 749, 752 (Fla. Dist. Ct. App. 2015) (internal quotations

and citation omitted).

Here, the undisputed facts show that SEDP assigned its rights under the

Agreement to SELV.16 See Assignment 1–2; County Mot. at 10–11; Dev. Mot. at 8.

Under the terms of Section 13 of the Agreement:

The rights and obligations of Applicant may be assigned and delegated

to a successor or owner/developer and, in such event, the assignor shall

be relieved of further liability under this Agreement. If the applicant

assigns its rights and obligations hereunder to another party, the

Applicant must provide a copy of the instrument transferring or

assigning the obligation(s) and specifying which obligation is being

transferred and to whom.

Agr. at § 13.17 It is undisputed that SELV has expended resources in constructing

the completed portions of the Grand Oaks PUD. See County Mot. at 15

(acknowledging that plats containing 442 residential units have been approved to

date); Dev. Mot. at 22 (same). It is undisputed that the County’s finding of SELV in

default of the Agreement halted development of the project. See County Mot. at 15–

16 SELV’s first and second affirmative defenses, claiming that it (1) did not accept

obligations under the assignment and thus cannot be liable for any breaches of the

Agreement; and (2) lacks privity with the County, are thus rejected. See [SELV’s]

Answer & Affirm Defs. [SACC] at 5–9, Jan. 17, 2024, ECF No. 34 (“SELV Answer”).

17 Neither party disputes the validity of the assignment, as it satisfied the

parameters of the Agreement: SEDP, as the assignor, expressly “s[old], assign[ed],

transfer[ed], convey[ed] and allocate[d]” its “present and future rights” relating to the

Grand Oaks PUD to SELV, the assignee; and the County acknowledged receipt of a

copy of the assigning instrument on October 3, 2018. Assignment at 1–4; County

Mot. at 10–11; Dev. Mot. at 8.

23; Dev. Mot. at 20–22; Dev. Resp. at 3–7. Thus, the County’s interpretation of the

Agreement, and subsequent finding of default against SELV, is at odds with SELV’s

ability to complete its contractual obligations as SELV understands those obligations.

Finally, the relief SELV seeks would allow it to complete construction by declaring

its interpretation of the Agreement valid and the County’s finding of default invalid

under the Agreement. Am. Compl. at ¶¶ 57, 64, 77. Accordingly, SELV has standing

to bring Counts I and II and the Court need not address whether SEDP would have

standing for Counts I and II.18

B. The Agreement

The Agreement states:

At the time [SELV] achieves Commencement, [SELV] may apply

to the County for a release of the Escrow Funds to [SELV], which [SELV]

shall then have the right to use for payment of all Pre-Construction

Costs, Permits Costs and costs related to construction of the SR 16

Improvements[]. [SELV] understands that the Escrow Funds shall not

be sufficient to pay the Estimated Total Cost of the SR 16 Improvements

and [SELV] agrees that it shall pay all costs for the SR 16 Improvements

which are in excess of the Escrow Funds.

Agr. at § 4e(vi).19 Thus, the Agreement requires SELV to pay all costs for SR 16

Improvements.

As explained above, the Agreement defines the term “SR 16 Improvements” to

mean SELV’s duty to “widen an approximately three (3) mile-segment of State Road

18 “[T]he presence of one party with standing is sufficient to satisfy Article III’s case-

or-controversy requirement.” Rumsfeld v. Forum for Acad. & Institutional Rights,

Inc., 547 U.S. 47, 53 (2006).

19 The Agreement defines “Commencement” as “[SELV] posting a bond for the SR 16

Improvements with FDOT in a form and amount to be determined by FDOT by

separate agreement or approval with the [SELV] for same.” Agr. at § 4e(v).

16 between San Giacomo Road and the eastern entrance into [the Grand Oaks PUD]

from two (2) lanes to four (4) lanes, in the location depicted in Exhibit C attached

hereto and incorporated herein by this reference.” Agr. at § 4d. Exhibit C contains a

note explaining that the itemized estimated costs for the total SR 16 Improvements

“may vary with actual design and the cost of material at the time of construction.”

Agr. at Exh. C.

The Agreement envisions that Escrow Funds will be used to construct the SR

16 Improvements, but that those Escrow Funds will be insufficient. The Agreement

explicitly acknowledges that “[SELV] understands that the Escrow Funds shall not

be sufficient to pay the Estimated Total Cost” and then adds that “[SELV] agrees that

it shall pay all costs for the SR 16 Improvements which are in excess of the Escrow

Funds.” Agr. at § 4e(vi). The Agreement does not require SELV to pay the difference

between the amount of the Escrow Funds and the Estimated Total Cost,20 but rather

it requires SELV to pay the difference between the amount in the Escrow Funds and

“all costs for the SR 16 Improvements.” Id.21 Accordingly, the Agreement requires

that SELV pay for the entirety of the SR 16 Improvements.

20 As the total residential units within the Grand Oaks PUD was capped at 999 units,

approval of all residential plats would yield a total Per Unit Payment sum of

$13,395,000.00 as Escrow Funds, with $1,590,000.00 paid for approval of the first 212

units, and $11,805,000.00 paid for approval of the remaining units. See Agr. at § 3

(explaining that the total residential units would reach a maximum of 999 units).

Thus, the Agreement recognizes that the money held Escrow Funds would be

insufficient to pay the total estimated cost for the SR 16 Improvements.

21 Although SELV’s Analyst predicted the SR 16 Improvements would total

$15,013,392.49, Exhibit C explicitly contemplates that the estimate could vary. See

Agr. at §§ 4d, 16, Exh. C.

SELV argues that there is an implied limitation to the maximum amount it

might be required to pay for the SR 16 Improvements. See Dev. Resp. at 3–7. It first

argues that the itemized list of estimated costs, incorporated into the Agreement

through Exhibit C, and that the definition of the SR 16 Improvements, stating that

the costs are “based upon the written estimate and preliminary design” of SELV’s

Analyst, supports the reading that SELV need only pay the difference between the

Escrow Funds and the estimated total cost of $15,013,392.49. Id. at 3–5. However,

SELV’s argument elides the plain language in the Agreement that it shall pay “all

costs for the SR 16 Improvements.” SELV’s argument also ignores Exhibit C’s

admonition that the costs “may vary with actual design and the cost of material at

the time of construction.” See Agr. at Exh. C. Although SELV is correct that the

projected cost was estimated to be just over $15 million, the provision it references to

support its interpretation expressly states that the ultimate costs of the SR 16

Improvements was subject to change from the estimates contained in the Agreement.

See id.

SELV attempts to circumvent this language by arguing that its duty to pay the

SR 16 Improvements is limited “to the scope of work contained in Exhibit C.”22 Dev.

Resp. at 5–6. The additional requirements imposed by the FDOT, after SELV’s

Analyst prepared the construction estimates, is therefore “beyond the scope of Exhibit

22 In response to the County’s motion, SEDP argues that the County’s interpretation

of the Agreement would require the Court to add the words “without cost limitation.”

Dev. Resp. at 3. The Court disagrees. The Agreement explains that SEDP agrees to

pay “all costs” for the SR 16 Improvements. Agr. at § 4e(vi).

C” and consequently any funding obligations under the Agreement. See id. But no

language in the Agreement supports reading in such a distinction. To the contrary,

the costs in Exhibit C explicitly refer to “SR 16 Improvements,” comprised of “adding

two lanes in one direction” of SR 16. See Agr. at §§ 4d, 16, Exh. C. Nothing in either

Exhibit C or the definitions of the Agreement condition or limit SELV’s obligation to

fund the SR 16 Improvements to certain portions, phases, or particular designs of the

construction. That FDOT required additions to the final design for the SR 16

Improvements does not affect SELV’s obligations as the Agreement requires SELV

pay for “all costs” for the SR 16 Improvements exceeding monies in the Escrow Fund,

and that the engineer’s estimates are subject to variance at the time of construction.23

Accordingly, the County’s motion for summary judgment on its claim for declaratory

relief is granted and the SELV’s motion for summary judgment on the County’s

motion for declaratory relief is denied.

23 Assuming arguendo that SELV’s interpretation of its obligations under the

Agreement is a reasonable alternative to the County’s, the County argues parol

evidence supports its interpretation. See County Mot. at 22–23; County Resp. at 3;

County Reply at 3. For example, the County’s staff report to the BOCC, shared with

SEDP, describes SEDP’s duty to construct the SR 16 Improvements “regardless of

cost.” See Staff Rep. at 4. SEDP made no objection to the report. See Exh. 7–8: Dep.

of Ellen Avery-Smith at 101:23–04:22, Mar. 27, 2024, ECF No. 42-12–13 (“Avery-

Smith Dep.”). At the BOCC approval meeting, counsel for SEDP and SELV the

improvements would be completed at “the developer’s risk,” even if the total

construction amount rose by $5,000,000.00. See Tr. [BOCC] Meeting [On July 17,

2018] at 32:22–33:2, July 17, 2018, ECF No. 42–22 (“BOCC Meeting Minutes”). SELV

offers no response to the County’s parol evidence. However, in light of the plain

meaning of the terms of the Agreement, resort to parol evidence is unnecessary.

C. SELV’s Breach and the County’s Default Determination

The County alleges SELV breached the contract by failing to adhere to the

material obligations under the Agreement and moves for summary judgment in its

favor. See County Mot. at 35–36. SELV seeks summary judgment on its challenge

to the County’s default finding that SELV’s failed to “honor the contractual

commitments” to complete the SR 16 Improvements. Dev. Mot. at 20, 23. SELV

alleges that the finding was “erroneous, improper, and illegal” because the deadlines

under the Agreement were tolled due to various executive orders declaring states of

emergency, and alternatively that the County waived its claims for any breaches by

SELV. Id. At 4; id. At 25–28. The undisputed facts establish SELV breached the

Agreement and therefore the Court grants the County summary judgment on Counts

I and II in the amended complaint and Counts I and II in the SACC and denies SELV

motion with respect to those claims.

Under Florida Law, a breach of contract claim requires a party to establish (1)

that a contract existed; (2) which was materially breached; and (3) that damages

flowed from that breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir.

2009); Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1313 (11th Cir.

2019); see also In re Standard Jury Instructions—Contract & Bus. Cases, 116 So. 3d

284, 306 (Fla. 2013) (“An adequately pled breach of contract action requires three

elements: (1) a valid contract; (2) a material breach; and (3) damages”).24 A breach is

24 SELV contends that “materiality” is not an element of breach of contract under

Florida law. Dev. Resp. at 9. The Supreme Court of Florida, however, has declared

material if a party’s failure to perform goes “to the essence of the contract.”

Marchisio, 919 F.3d at 1313 (citing Sublime, Inc. v. Boardman’s Inc., 849 So.2d 470,

471 (Fla. Dist. Ct. App. 2003)). An essential, or material, term is “[a] contractual

provision dealing with a significant issue such as subject matter, price, payment,

quantity, quality, duration, or the work to be done.” See Material Term, Black’s Law

Dictionary (11th ed. 2019); Term, Black’s Law Dictionary (11th ed. 2019); see also

United States Doe v. Health First, Inc., No. 614-CV-501-ORL-37DCI, 2017 WL

1929700, at *4 (M.D. Fla. May 10, 2017) (citing unaltered definitions in the 9th edition

of Black’s Law Dictionary). As a corollary, the failure to perform some minor aspect

or term of an agreement is not a material breach. See Covelli Fam., L.P. v. ABG5

L.L.C., 977 So.2d 749, 752 (Fla. Dist. Ct. App. 2008). Where one party to a contract

materially breaches the contract’s terms, the non-breaching party is excused from

performance. Hamilton v. Suntrust Mort. Inc., 6 F. Supp 3d 1300, 1309 (S.D. Fla.

2014) (citing Indemnity Ins. Corp. of DC. V. Caylao, 130 So.3d 783, 786 (Fla. Dist. Ct.

App. 2014)).

Here, the undisputed facts establish that SELV breached the Agreement by

failing to satisfy certain material terms within the timeframe to which it was

contractually bound. Section 4d(ii) of the Agreement requires that SELV complete

that it is an element for an adequately pled breach of contract action, evinced in its

standard jury instructions in 2013. See In re Standard Jury Instructions, 116 So.3d

at 306; id. at 287 (“This Court is confident that these forms of instructions, as

recommended by the Committee, state as accurately and correctly as a group of

experienced lawyers and judges could state the substantive law of Florida in language

understandable by jurors”).

Pond Acquisition—the acquisition of the offsite drainage ponds—and Road Design—

coordination with FDOT to design the SR 16 Improvements—at the earlier of either:

(1) fourteen months after the Agreement went into effect, which was November 21,

2019, or (2) the BOCC’s approval of the 443rd unit in the Development. Agr. at

§ 4d(ii). The parties do not dispute that neither the Pond Acquisition nor the Road

Design had been satisfied within the timeframe provided by the Agreement. See

County Mot. at 35–36; Dev. Mot. at 24. Thus, SELV breached the agreement.

SELV argues that the presence of five separate states of emergency in Florida,

existing either at the time the of the Agreement or declared during performance,

tolled the Pond Acquisition and Road Design deadlines until September 29, 2024,

under Fla. Stat. § 252.363 through the notices sent to the County by SELV. See Dev.

Mot. at 25–28; see also Exhs. 1A–1JJ, Apr. 26, 2024, ECF Nos. 46-1–46-36 (“EOs”);

EO Ext. Nots. (conveying intent to exercise tolling for the Opioid Epidemic, expiring

April 1, 2019; Hurricane Maria, expiring December 16, 2018; Hurricane Florence,

expiring on November 13, 2018; Hurricane Dorian, expiring June 16, 2020; and

Covid-19 pandemic expiring on June 16, 2021). The County responds that Fla. Stat.

§ 252.363 did not apply to the Agreement and that SELV’s notices were deficient

under the statute. County Resp. at 4–7.

At the time of the Agreement,25 Fla. Stat. § 252.363 read, in pertinent part:

25 Because the 2018 version of Fla. Stat. § 252.363 was in effect at formation of the

Agreement, the 2018 version applies. See Fla. Beverage Corp. v. Div. of Alcoholic

Beverages & Tobacco, 503 So.2d 396, 398 (Fla. Dist. Ct. App. 1987); see also Shavers

v. Duval Cnty., 73 So.2d 684, 689 (Fla. 1954).

(1)(a) The declaration of a state of emergency by the Governor tolls the

period remaining to exercise the rights under a permit or other

authorization for the duration of the emergency declaration. Further,

the emergency declaration extends the period remaining to exercise the

rights under a permit or other authorization for 6 months in addition to

the tolled period. This paragraph applies to the following:

1. The expiration of a development order issued by a local

government.26 . . .

(b) Within 90 days after the termination of the emergency declaration,

the holder of the permit or other authorization shall notify the issuing

authority of the intent to exercise the tolling and extension granted

under paragraph (a). The notice must be in writing and identify the

specific permit or other authorization qualifying for extension.

Fla. Stat. § 252.363(1)(a)–(b) (2018). The term “development order” is defined under

the Florida statutes as “any order granting, denying, or granting with conditions an

application for a development permit.” Fla. Stat. § 163.3164(15) (2018). A

“development permit” is similarly defined under the same statute as “any building

permit, zoning permit, subdivision approval, rezoning, certification, special

exception, variance, or any other official action of local government having the effect

of permitting the development land.” Fla. Stat. § 163.3164(16) (2018).

Here, no toll applies because the 2018 version of Fla. Stat. § 252.363 does not

apply to the Agreement. See Fla. Beverage Corp., 503 So.2d at 398 (“The laws in

force at the time of the making of a contract enter into and form a part of the contract

26 In 2021, the Florida legislature amended Subsection (1)(a) to apply to two

additional items, including “[t]he expiration of a development permit or development

agreement authorized by Florida Statutes, including those authorized under the

Florida Local Government Development Agreement Act, or issues by a local

government or other governmental agency.” See Fla. Stat. § 252.363(1)(a)(6) (2021);

see also S.B. 912, 2021 Leg., 123rd Sess. (Fla. 2021).

as if they were expressly incorporated into it”).27 Nothing in the Agreement indicates

that it functions as a permit or development order. To the contrary, Section 6a limits

the scope of the Agreement to serve “as a basis for granting traffic or transportation

concurrency and public facilities concurrency” for the Grand Oaks PUD but does not

“expressly or impliedly relieve[] any party to this Agreement of the obligation to

secure any and all other state, federal, and local permits necessary to authorize”

construction of the project. Agr. at § 6a. Indeed, Section 9 explicitly states that SELV

“acknowledges its obligation to obtain all necessary local development permits which

may be needed for the Grand Oaks PUD”, indicating that the Agreement itself is not

an order as envisioned by § 252.363. See Agr. at § 9.28

27 The parties dispute the precise classification of the Agreement as relevant to the

text of Fla. Stat. § 252.363. Compare County. Resp. at 5–6 (classifying the Agreement

as a “development agreement”), with Dev. Reply at 2–5 (classifying the Agreement as

a “proportionate share agreement pursuant to Section 163.3180”). The precise

classification of the Agreement here does not affect the Court’s determination, as the

Agreement is not a permit regardless of what it is called, and therefore does not fall

within the tolling statute. SEDP’s argument that Fla. Stat. § 252.363 extends

mitigation efforts connected to a construction effort authorized by permit is

inapposite when, as here, there is no permit. See Fla. Stat. § 252.363(c); Dev. Reply

at 5–6.

28 Even if Fla. Stat. § 252.363 applied, the notices provided by SELV were facially

deficient. The statute requires that any notice of tolling “be in writing and identify

the specific permit or other authorization qualifying for extension.” Fla. Stat.

§ 252.363(1)(b). Apart from the Agreement itself not operating as a permit for the

development of the Property, no specific permits were identified by the notices in the

EO extension notices, as it is undisputed that no permits had been acquired for the

relevant Pond Acquisition or Road Design sought to be extended. County Mot. at 35–

36; Dev. Mot. at 31. A concurrency agreement is an agreement to proceed in a

particular manner, i.e., to provide facilities concurrent with development. It is not a

development order or a permit authorizing construction. Thus, mere reference to the

Agreement in SELV’s tolling notices is insufficient to satisfy the requirements of the

tolling statute. See Fla. Stat § 252.363(1)(b) (“The notice must be in writing and

identify the specific permit or other authorization qualifying for extension”).

Alternatively, SELV claims that the County waived any claims for breach of

the Agreement because it continued performance under the contract despite such

breach.29 Dev. Mot. at 28–31. The County responds that it did not waive its ability

to claim breach. County Resp. at 7–9. Essential to waiver of a contractual right is

the existence, at the time of the waiver, of the right which may be waived; knowledge

of that right; and the intent to relinquish such right. Arbogast v. Bryan, 393 So.2d

606, 608 (Fla. Dist. Ct. App. 1981). Florida contract law recognizes implied waiver of

legal rights, the crux of which rests on “actions or conduct warranting an inference

that a known right has been relinquished.” Sacred Heart Health Sys., Inc. v. Humana

Mil. Healthcare Servs., Inc., 601 F.3d 1159, 1181 (11th Cir. 2010) (citing Hammond

v. DSY Developers, LLC, 951 So.2d 985, 988 (Fla. Dist. Ct. App. 2007)); Ferry–Morse

Seed Co. v. Hitchcock, 426 So.2d 958, 962 (Fla. 1983). Waiver may be inferred from

conduct. Arbogast, 393 So.2d at 608; Sacred Heart, 601 F.3d at 1181; see also Acosta

v. Dist. Bd. Of Trs. Of Miami-Dade Cmty. Coll., 905 So.2d 226, 229 (Fl. Dist. Ct. App.

2005) (noting where a party fails to declare a breach and continues to perform it may

be deemed to have waived its rights). However, waiver must be demonstrated by

conduct, acts, or circumstances that make out “a clear case,” and may not be inferred

from ambiguous or doubtful circumstances. See Multiquimica Dominicana v. Chemo

Int’l, Inc., 707 F. App’x 692, 695 (11th Cir. 2017); Fireman’s Fund Ins. Co. v. Vogel,

29 Both SEDP and SELV assert waiver as an affirmative defense on the same grounds

as their motion in their respective answers to the SACC. See [SEDP’s] Answer &

Affirm. Defs. [SACC] at 7–8, Jan. 17, 2024, ECF No. 35 (“SEDP Answer”); SELV

Answer at 7.

195 So.2d 20, 24 (Fla. Dist. Ct. App. 1967). “Mere delay is insufficient to support

waiver.” Smith v. Carlton, 348 So.3d 52, 57 (Fla. Dist. Ct. App. 2022).

SELV’s waiver argument is unavailing. SELV fails to allege conduct from

which a jury could conclude that the County waived its rights to enforce the Pond

Acquisition and Road Design deadlines. See Multiquimica, 707 F. App’x at 696;

Vogel, 195 So.2d at 24. SELV points to the County’s engagement with SELV

concerning the proposed amendment to the Agreement, after the Pond Acquisition

and Road Design deadlines had passed, as evidence of waiving its right to enforce

such deadlines. Dev. Mot. at 30. The County’s and SELV’s post deadline meetings

and communications did not pertain to SELV’s obligations to commence and complete

Pond Acquisition or Road Design and thus cannot serve as a basis to infer the County

relinquished its ability to respond to such failures. See Arbogast, 393 So.2d at 608

(requiring an intent to relinquish the specific rights at issue); Naples Ests. Ltd. P’ship

v. Muston, 327 So. 3d 419, 423 (Fla. Dist. Ct. App. 2021) (finding no waiver where

party’s actions did not convey intent to waive specific right under contract). Indeed,

SELV offers no pronouncements by the County that demonstrate a waiver of its right

to enforce the deadlines of the Agreement. See Air Prod. & Chems., Inc. v. Louisiana

Land & Expl. Co., 867 F.2d 1376, 1379–80 (11th Cir. 1989) (rejecting claim of waiver

without oral or written pronouncements evincing intentional or voluntary waiver of

rights).30

30 SELV claims that the County’s acceptance of the Per Unit Payments “under the

guise of performing pursuant to the Agreement” constitutes waiver. Dev. Mot. at 30–

Moreover, the County’s delay in exercising its ability to find SELV in default

does not constitute waiver of its right to do so. See Air Prod. & Chems., 867 F.2d at

1379–80. The County’s delay in declaring a default does not illustrate a conclusive

waiver of its right to claim that SELV breached the Agreement. See, e.g., Air Prod.

& Chems., 867 F.2d at 1380 (finding no clear waiver after five-year delay); Mercede

v. Mercede Park Italian Restaurant, Inc., 392 So.2d 997 (Fla. Dist. Ct. App. 1981)

(finding no waiver after ten-month delay); Goodwin v. Blu Murray Ins. Agency, Inc.,

939 So. 2d 1098, 1104 (Fla. Dist. Ct. App. 2006) (finding delay of four-years did not

amount to clear case of waiver). Accordingly, SELV’s motion for summary judgment

on its challenge to the County’s default finding is denied, and the County’s motion for

summary judgment is granted.31

31. SELV implies that the County impermissibly took advantage of the Agreement’s

benefits and then stopped performance. See id. at 30 (citing Burger King Corp. v.

Hinton, Inc., 203 F. Supp. 2d 1357, 1365 (S.D. Fla. 2002)). SELV’s argument is

unpersuasive, because the acceptance of the Per Unit Payments—held in a separate

account by the County and earmarked for SELV’s use in the SR 16 Improvements—

is not a benefit received by the County. Rather, the terms of the Agreement instruct

that the Per Unit Payments be used by SELV to aid it in satisfying its contractual

obligations. Both SEDP and SELV’s affirmative defenses that the County accepted

the benefit of the Agreement are rejected. See SEDP Answer at 8; SELV Answer at

9. Even if the County waived claims for breach of the Pond Acquisition and Road

Design deadlines, it is undisputed that SELV further breached the Agreement when

it halted the SR 16 design work in July of 2022 after the County accepted the Per

Unit Payments in May of 2022. See Hyatt Dep. at 88:7–90:5; Exh. 11: Dep. Christine

Valliere at 102:6–22; 236:7–15, Mar. 26, 2024, ECF No. 48-13 (“Valliere Dep.”);

County Mot. at 16; County Resp. at 8; Dev. Mot. at 17, 30 n.12, 30–31.

31 In their answers to the SACC, SEDP and SELV assert numerous affirmative

defenses, including: unclean hands; anticipatory repudiation; frustration of purpose;

estoppel; impossibility; ongoing discovery; election of sole remedy; and anticipatory

breach. See SEDP Answer at 5–9; SELV Answer at 5–9. However, SEDP and SELV

failed to raise or expound upon these defenses in their motion, response, or reply

D. The County’s Alleged Breach

SELV contends that the County breached the Agreement by: (1) not adopting

“the SR 16 Improvements into its Five-year Schedule of Capital Improvements in the

[CIE] of its Comprehensive Plan ‘at the next scheduled update”; (2) failing to properly

account for and maintain the Per Unit Payments; (3) finding SELV in default and

directing the funds in the escrow account to be paid to the FDOT; and (4) failing to

cooperate with SELV to effectuate the terms of the Agreement, as required by

Paragraph 22 of the Agreement. Dev. Mot. at 33. SELV moves for summary

judgment on the first three assertions. Id. at 1–2, 33.32 The County rejects SELV’s

characterization that it has breached the Agreement, and that even if any breach

occurred, it was not material. County Mot. at 9–14. The County moves for summary

judgment on all four of SELV’s allegations of breach. Id. at 1–2, 29–35.

The County is entitled to summary judgment. First, SELV offers no evidence

from which a reasonable finder of fact could conclude that the County breached the

Agreement by failing to adopt the SR 16 Improvements into the Capital

briefs before the Court, and have therefore abandoned defenses. See generally Dev.

Mot.; Dev. Resp.; Dev. Reply; see also Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587,

599 (11th Cir. 1995) (“the onus is upon the parties to formulate arguments; grounds

alleged in the complaint but not relied upon in summary judgment are deemed

abandoned”); MSC Trading, S.A. v. Delgado, No. 22-20075-CV, 2024 WL 3103942, at

*6 (S.D. Fla. May 20, 2024) (applying abandonment reasoning in Dunmar Corp. to

affirmative defenses not raised in summary judgment briefing), report and

recommendation adopted, No. 1:22-CV-20075-DPG, 2024 WL 3564585 (S.D. Fla. July

29, 2024).

32 SELV does not move for summary judgment on its claim that the County failed to

cooperate with SELV to effectuate the terms of the Agreement because it believes

there to be “disputed issue of material fact.” See Dev. Mot. at 33 n.14.

Improvements Schedule. The County’s obligation under Section 6c of the Agreement

requires:

The County will adopt [SELV’s] Transportation Contribution . . . into

the County’s Five-Year Schedule of Capital Improvements in the

County’s [CIE] of its Comprehensive Plan at the next scheduled update.

Agr. at § 6c. Although implementation of the CIE “must be reviewed by the local

government on an annual basis” under Fla. Stat. § 163.3177, SELV fails to support

its conclusory allegation that the County breached this term by pointing to any

specific instance where the County had an opportunity to adopt the items into its

Comprehensive Plan but refused. See generally County Mot.; County Resp.; County

Reply. Indeed, SELV fails to provide any evidence that might refute the County’s

contention that the Five-Year Schedule of Capital Improvements has not been

updated since the Agreement was approved. See County Resp. at 9 (first citing Exh.

4: Dep. Richard “Dick” D’Souza at 188:1–192:2, Mar. 12, 2024, ECF No. 48-6; and

then citing Valliere Dep. at 124:15–126:3). Nor has SELV supported a showing that

the County must adopt the SR 16 Improvements at the annual review of the CIE

under Section 163.3177. To the contrary, the term of the Agreement does not specify

when such adoption must occur. See Agr. at § 6c.33

33 Even if the County were required to adhere to the terms of Section 6c at the annual

review of the CIE, its failure to do so here would not be a material breach. The

requirement does not amount to an essential element of the Agreement, as it does not

pertain to “subject matter, price, payment, quantity, quality, duration, or the work to

be done.” See Material Term, Black’s Law Dictionary (11th ed. 2019); Term, Black’s

Law Dictionary (11th ed. 2019). Rather, the terms concern a minor aspect of the

Agreement, a breach of which is insufficient to excuse performance. See Covelli Fam.,

977 So.2d at 752.

Second, SELV claims the County breached the Agreement by “failing to

properly account for the Per Unit Payments and failing to maintain a separate escrow

account.” See Dev. Mot. at 35–37. Under Section 4e(iv) of the Agreement, the County

must “hold the aggregate Per Unit Payments[] in a separate escrow account[] to be

used only for the SR 16 Improvements.” Agr. at § 4e(iv). SELV’s arguments rests on

its assumption that the account holding the Per Unit Payments must operate as an

escrow account as defined under Florida law. See Dev. Mot. at 35–36; see, e.g., Carl

v. Republic Sec. Bank, 282 F. Supp. 2d 1358, 1367 (S.D. Fla. 2003) (noting under that

Florida law, money held in escrow requires specific parameters, including a third

party that holds the funds); IberiaBank v. Coconut 41, LLC, 984 F. Supp. 2d 1283,

1307 (M.D. Fla. 2013), aff'd, 589 F. App’x 479 (11th Cir. 2014). However, the term

“Escrow Account” is a defined term under the Agreement, meaning a separate

account where the “Escrow Funds”—i.e. “the aggregate Per Unit Payments”—are

kept. Agr. at § 4e(iv)(b). The reference to “a separate escrow account” contained

within § 4e(iv)(b) refers to the Escrow Account as defined by the agreement.

It is undisputed that the monies contained in the Escrow Account were indeed

kept separate from other monies. Thus, SELV’s reliance upon statements in Mr.

Dunn’s deposition, which it maintains show that the Per Unit Payments were

commingled with funds unrelated to the Grand Oaks PUD fails. Dev. Mot. at 35

(citing Dunn Dep. at 67:10-19); Dev. Resp. at 11–12. The deposition establishes, and

there is no dispute, that the County isolated the Per Unit Payments in a separate

account, numbered “20502016,” within the County’s “Transportation Trust Fund,” as

required under the Florida statutes. See Dunn Dep. at 18:5–20:7; Schroeder Dep. at

19:22–20:22, 24:22–28:4, 29:18–31:17; see also Fla. Stat. § 218.33 (establishing

uniform fiscal years and accounting practices and procedures); Fla. Stat. § 336.022

(requiring that all funds received by a county for transportation shall be deposited

into a single transportation trust fund containing “a uniform accounts classification

system”). The funds held in account number 20502016 were earmarked only for

funding the SR 16 Improvements, and no other funds for any other purposes were

held within the separate account with the Transportation Trust Fund. Dunn Dep. at

19:24–20:7, 67:10-19; Schroeder Dep. at 19:22–20:22, 24:22–28:4, 45:4–46:11, 55:18–

58:21, 60:13–61:24, 100:18–101:20. SELV offers no evidence that the funds were

commingled or used for expenditures unrelated to the Grand Oaks PUD apart from

speculative and conclusory allegations.34 See, e.g., Dev. Mot. at 35–37. Accordingly,

SELV has failed to raise a dispute of the material fact that the Per Unit Payments

were not held in accordance with Section 4e(iv) of the Agreement and the Florida

Statutes. See Agr. at § 4e(iv).35

34 SELV invokes statements made by Mr. Dunn in his deposition that no reasonable

juror could conclude support its argument that Per Unit Payments were commingled

with funds from other sources. Dev. Mot. at 35. The deposition testimony reveals

that the account that SELV believes was subject to commingling was not account

number 20502016, but rather a larger fund within the Transportation Trust Fund.

See Dunn Dep. 65:19–66:22, 67:10–19. SELV points to no other evidence that may

suggest any commingling of funds. Therefore, SELV’s characterization of the funds

in the account is unsupported, and a reasonable jury could not conclude that SELV

raised a material issue of fact on its allegations of breach by the County.

35 Assuming arguendo that the Agreement required the County to establish an

escrow account under Florida law which was held by a third party, the County’s

failure to do so here would not have been a material breach of the Agreement. See

Moreover, a jury could not conclude that the County’s “failure to properly

account for the Per Unit Payments” by misplacing a check materially breached the

Agreement. See Dev. Mot. at 35. Although it is undisputed that the County

mishandled a check for $2.4 million of the Per Unit Payments, ultimately requiring

that the check be reissued nine months later, the money was subsequently recouped

and transferred to the requisite separate account, where it presently remains. Dev.

Mot. at 36; County Resp. at 13–14. SELV presents no facts and points to no authority

that might suggest the mishandling of the check caused damages to SELV. See

generally Dev. Mot.; Dev. Resp.; Dev. Reply. Because SELV cannot show damages,

a jury could not conclude the County breached the Agreement. See Vega, 564 F.3d at

1272 (requiring damages as an element for breach of contract).

Third, SELV also claims breach for the County “(3) erroneously finding [SELV]

in default of the Agreement and directing that funds paid into escrow be disbursed to

FDOT.” Dev. Mot. at 33. However, as discussed above, the County’s default finding

Covelli Fam., 977 So.2d at 752; see also See Burlington & Rockenbach, P.A. v. L. Offs.

of E. Clay Parker, 160 So. 3d 955 (Fla. Dist. Ct. App. 2015) (articulating an

interpretative disagreement over contract language not a material breach of the

contract where disagreeing party performed its obligations); American Fire &

Casualty Co. v. Collura, 163 So.2d 784, 793-794 (Fla. 2d DCA 1964) (the failure of an

insured to make demand upon the insurer to defend him in a negligence action, and

to furnish the insurer with copies of the pleadings served upon him, was a immaterial

breach because the insurer had timely received the required copies from plaintiff's

attorney, in the negligence action); Covelli Fam., 977 So. 2d at 752 (Fla. Dist. Ct. App.

2008) (landlord committed an immaterial breach when landlord failed to obtain an

estimate from an independent contractor prior to sending a notice of termination in

violation of the notice provision of the lease because sending the notice of termination

did not go to the essence of the contract); Vasilevskiy v. Wachovia Bank, Nat. Ass’n,

171 So. 3d 192 (Fla. Dist. Ct. App. 2015) (mortgage default notice to appellants with

a specified cure date of only twenty-eight instead of thirty days’ notice).

and direction of the Per Unit Payments was in accordance with its rights under the

Agreement, and summary judgment is entered for the County on this claim.

Lastly, the County moves for summary judgment on SELV’s claim for breach

because the County failed “to cooperate with [SELV] to effectuate the terms of the

Agreement and fail[ed] to coordinate the performance of respective obligations under

the Agreement, as required by [Section 22] of the Agreement.” County Mot. at 34–

35; see Dev. Mot. at 33. Here, the undisputed facts show that SELV breached the

Agreement, as discussed above, and further that the County engaged with SELV

concerning its proposed amendment to the Agreement. See County Mot. at 15–20;

Dev. Mot. at 15–20. SELV fails to properly respond to the County’s assertion of fact

that it cooperated with SELV to effectuate the terms of the Agreement in response to

the County’s motion. See generally Dev. Mot.; Dev. Resp.; Dev. Reply; see also County

Mot. at 15–18, 34–35. Thus, the Court enters summary judgment in the County’s

favor on Count I and II in the amended complaint, as well as Counts I in the SACC;

the Court declines to enter judgment for the County’s alternative prayer for relief in

Count II.36

E. Relief

The County requests final judgment in its favor, seeking declaration of various

rights, authorities, and remedies under the Agreement under 28 U.S.C. § 2201 and

36 Because the County did not breach the Agreement, SEDP and SELV’s affirmative

defenses that the County breached the Agreement and that the County “was not

ready, willing, and able to perform under the Agreement” are rejected. See SEDP

Answer at 5–6; SELV Answer at 8–9.

Federal Rule of Civil Procedure 57. See County Mot. at 48; see also SACC at ¶ 9

(asserting jurisdiction under 28 U.S.C. § 2201 and Fed. R. Civ. P. 57); id. at ¶¶ 39, 42.

Under Count I of the SACC, the County seeks a final judgment declaring that: (1)

“under the Agreement, [SELV] is obligated to pay all costs for the SR 16

Improvements; (2) and [SELV] breached the Agreement by failing to comply with the

Conditions of the Agreement.” SACC at ¶ 39A. Second, the County requests that the

judgment declare that it may exercise its authority as follows:

(3) to halt approval of additional plats or construction plans within the

Property until and unless [SELV] complies with the conditions of

Section 4 and 5 of the Agreement or some other entity constructs the

SR 16 Improvements; and

(4) that the Per Unit Payments paid for units at the Property to date

shall become non-refundable to [SELV] and the County may use such

Payments to reimburse the advance of funds paid to FDOT for the

work on the SR 16 Improvements or construct a portion of the SR 16

Improvements or another road improvement within the project

impact area with such funds; and

(5) require [SELV] to assign the Road Design documents and any

Permits to the County, free of charge.

Id. at ¶ 39B. Finally, the County requests (6) that it be awarded all costs incurred in

the action, and (7) “other and further relief as the Court deems just and proper.” Id.

at ¶ 39B–D.37

37 As an alternative remedy to Count I, the County requests declaratory judgment

for Count II in the form of specific performance of the Agreement as follows:

(1) To enter a Final Judgment determining and declaring that [SELV]

is in breach of the Agreement by its failure to comply with the

Conditions of the Agreement;

(2) That [SELV] shall specifically perform its obligations under the

Agreement and comply with the Conditions of the Agreement, and

Declaratory relief under the Federal Declaratory Judgment Act permits the

Court to “declare the rights and other legal relations of any interested party seeking

such declaration, whether or not further relief is or could be sought.” 28 U.S.C.

§ 2201(a). The procedure for obtaining a judgment declaring the rights and legal

relations of the interested parties to an action is governed by the Federal Rules of

Civil Procedure. Fed. R. Civ. P. 57. That another adequate remedy may exist does

not foreclose declaratory judgment that is otherwise appropriate, as the powers

conferred to the Court by the Act are discretionary in nature. Id.; see Drummond

Coal Sales Inc. v. Kinder Morgan Operating LP “C”, 836 F. App’x 857, 869 (11th Cir.

2021); Gold-Fogel v. Fogel, 16 F.4th 790, 797 (11th Cir. 2021). When determining

whether declaratory relief is appropriate, considerations for the Court include

“whether a declaratory judgment will serve a useful purpose in clarifying and settling

the legal relations in issue, and whether it will terminate and afford relief from the

that compliance with the Conditions of the Agreement shall be

completed within the parameters contained within the Agreement;

(3) That the County may hold in abeyance plat or other Development

approvals unless and until the SR 16 Improvements are commenced

and completed in accordance with the terms of the Agreement;

(4) That the County be awarded its costs incurred in this action; and

(5) Such other and further relief as the Court deems just and proper.

SACC at ¶ 42(A)–(E). Under Florida law, specific performance is a remedy that “can

be granted only when ‘1) the plaintiff is clearly entitled to it, 2) there is no adequate

remedy at law, and 3) the judge believes that justice requires it.’” Invego Auto Parts,

Inc. v. Rodriguez, 34 So. 3d 103, 104 (Fla. Dist. Ct. App. 2010) (quoting Castigliano v.

O’Connor, 911 So.2d 145, 148 (Fla. Dist. Ct. App. 2005)). The County has failed to

show that specific performance here is warranted. Moreover, because the Court

grants declaratory relief for the County as to Count I, it need not address the County’s

alternative prayer for relief.

uncertainty, insecurity, and controversy giving rise to the proceeding.” Nview

Health, Inc. v. David V., No. 8:21-CV-385-VMC-TGW, 2022 WL 16923585, at *15

(M.D. Fla. Nov. 14, 2022) (internal quotations and citations omitted).

Here, as discussed above, the County has established that the Agreement

required SELV to construct the SR 16 Improvements and SELV breached the

Agreement by failing to comply with its conditions. A declaration of the rights and

relations under the Agreement is proper, as it settles the parties’ legal relations under

the Agreement, and it dispels the uncertainty surrounding the County’s capacity to

respond to SELV’s breach. See Nview Health, 2022 WL 16923585, at *15.

Section 11 of the Agreement provides remedies for breach, namely:

The County may halt approval of additional plats or construction

plans within the Property until and unless the Applicant complies with

the terms and conditions of Sections 4 and 5 hereof . . .

In addition to other remedies, if the Applicant defaults hereunder,

the Per Unit Payments paid by the Applicant to date shall become non-

refundable to the Applicant and shall be used by the County to construct

a portion of the SR 16 Improvements or another road improvement

within the project impact area. Additionally, the Applicant must assign

the Road Design documents and any Permits to the County, free of

charge, within thirty (30) days of such default.

Agr. § 11.

Therefore, the County has authority to act pursuant to the terms of Section 11

of the Agreement, in that it may (1) halt approval of additional plats and construction

plans within the Grand Oaks PUD until and unless SELV complies with the terms

and conditions of Sections 4 and 5 of the Agreement; (2) declare the Per Unit

Payments held in the separate account as non-refundable to SELV, which shall be

used by the County to construct a portion of the SR 16 Improvements or another road

improvement within the project impact area; and (3) require SELV to assign the Road

Design documents and any Permits to the County, free of charge, within thirty (30)

days of the entry of judgment. Finally, the County, as the prevailing party, is

awarded costs incurred in this action other than attorney’s fees pursuant to Federal

Rule of Civil Procedure 54(d)(1). See Morillo-Cedron v. Dist. Dir. for the U.S.

Citizenship & Immigr. Servs., 452 F.3d 1254, 1257 (11th Cir. 2006); Head v. Medford,

62 F.3d 351, 355 (11th Cir. 1995); Doria v. Class Action Servs., LLC, 261 F.R.D. 678,

685 (S.D. Fla. 2009).

II. Inverse Condemnation

SEDP and SELV seek summary judgment on their claim for inverse

condemnation in Count III of the amended complaint, alleging that the County has

“unlawfully taken [SEDP and SELV’s] property without just compensation, in

violation of Article X, Section 6(a) of the Florida Constitution.” Dev. Mot. at 37–39;

Dev. Resp. at 15–16; see also Am. Compl. at ¶¶ 65–69. The County also moves for

summary judgment on this count, arguing that SEDP and SELV lack standing to

bring a claim for inverse condemnation and further that there was no

unconstitutional taking. County Mot. at 39–42; County Resp. at 15–17. Because

neither SEDP nor SELV have standing to pursue this claim, the County is entitled

to summary judgment in its favor on Count III of the amended complaint, SEDP and

SELV’s motion for summary judgment for Count III is denied.

A plaintiff has standing by possessing a personal stake in the matter before

the Court, consisting of an injury in fact that is fairly traceable to the defendant’s

actions, and that injury will likely be redressed by a favorable decision from the

Court. See All. for Hippocratic Med., 602 U.S. at 379; TransUnion, 594 U.S. at 423;

Lujan, 504 U.S. at 560–61. To demonstrate standing under the Takings Clause,38 the

claimant must show “proof of personal injury,” described as “the requisite interest in

the property at issue and the deprivation thereof by the [government].” Rhodes v.

City of Jacksonville, Fla., No. 3:20-CV-665-BJD-MCR, 2022 WL 20538758, at *9

(M.D. Fla. Feb. 1, 2022) (internal quotations and citations omitted), report and

recommendation adopted sub nom. Rhodes v. City of Jacksonville, No. 3:20-CV-665-

BJD-MCR, 2022 WL 20538756, at *1 (M.D. Fla. Feb. 23, 2022).

A “requisite interest in the property” requires a claimant show ownership of

the property in issue at the time of the alleged taking by the government.

Radenhausen v. U.S. Coast Guard, No. 3:13-CV-268-J-39JRK, 2014 WL 12629932, at

*4 (M.D. Fla. Feb. 13, 2014) (citing Maniere v. United States, 31 Fed. Cl. 410, 420

(Fed. Cl. 1994)); see Manhattan Ave. LLC v. Tampa, No. 8:22-CV-2925-SDM-CPT,

2023 WL 9958391, at *2 (M.D. Fla. May 5, 2023) (“under federal law, ‘[o]nly the owner

of an interest in property at the time of the alleged taking has standing to assert that

a taking has occurred” (quoting U.S. Olympic Comm. v. Intelicense Corp., S.A., 737

38 An inverse condemnation claim brought under the Florida Constitution is guided

by Fifth Amendment Takings Clause jurisprudence because Florida follows federal

takings law. Chmielewski v. City of St. Pete Beach, 890 F.3d 942, 949, 949 n.3 (11th

Cir. 2018) (citing St. Johns River Water Mgmt. Dist. v. Koontz, 77 So.3d 1220, 1226

(Fla. 2011), rev’d on other grounds 570 U.S. 595 (2013)).

F.2d 263, 268 (2d Cir. 1984))). Prior or subsequent ownership status does not provide

grounds for a claimant to seek remedy if no ownership stakes in the property were

possessed at the time of the taking. United States v. Dow, 357 U.S. 17, 22 (1958); see

Simon v. Deer Meadows Homeowners’ Ass’n, Inc., 277 So.3d 197, 199 (Fla. Dist. Ct.

App. 2019) (finding no taking where the claimant came into ownership of subject

property after government acts occurred).

Here, neither SEDP nor SELV have standing to bring a claim for inverse

condemnation because neither can establish an injury in fact. Under the Agreement,

SELV’s right to access the Per Unit Payments only arises on commencement of the

SR 16 Improvements and SELV applies to the County for release of the funds. See

Agr. at § 4e(vi). It is undisputed that neither of these conditions have been satisfied.

See County Mot. at 35–36; Dev. Mot. at 24. Because neither SEDP nor SELV owned

the Per Unit Payments when the County directed the funds to FDOT, and they cannot

show the requisite interest in or right to the Per Unit Payments at the time of the

taking to constitute an injury in fact necessary to confer standing for the claim. See

Radenhausen, 2014 WL 12629932, at *4 (finding no taking where claimant had no

ownership at time of taking); Manhattan Ave., 2023 WL 9958391, at *2 (same);

Simon, 277 So.3d at 199 (same).

SEDP and SELV further contend that they “have a contractual interest in the

funds that is clearly laid out in the Agreement,” based off the provision governing

collection of the Per Unit Payments “in escrow for the benefit of [SEDP or SELV].”

Dev. Resp. at 14–15. SEDP and SELV’s claims are unpersuasive. First, the case

cited in support of its argument, Pinellas County v. Brown, is distinguishable. See

Dev. Resp. at 14–15 (citing 450 So.2d 240, 242 (Fla. Dist. Ct. App. 1984)). In Brown,

the Court’s finding of a taking by the defendant-county was premised on the county’s

“unreasonable” withholding of consent for an assignment of a contract between the

assignor and plaintiff-assignee. See 450 So.2d at 241–42. Here, however, as

discussed above, the County’s default finding—and subsequent direction of the Per

Unit Payments to FDOT—was not unreasonable, but rather a valid exercise of its

rights under the Agreement.

Second, “[t]he existence of an enforceable contract with a state or local

government entity does not give rise to a constitutionally protected property interest”

for a takings claim. See Key W. Harbour Dev. Corp. v. City of Key West, 987 F.2d

723, 728 (11th Cir. 1993); Keane v. Jacksonville Police Fire & Pension Fund Bd. of

Trustees, 775 F. App’x 496, 499 (11th Cir. 2019). The Agreement is undisputedly

between SELV and the County, under which the Court has determined neither SEDP

nor SELV have any cognizable claims for breach. Therefore, SEDP and SELV lack

standing to bring their claim for inverse condemnation, and therefore the Court

denies their motion. The Court enters summary judgment in favor of the County on

Count III of the amended complaint.

III. Unlawful Exaction

The County seeks summary judgment on the Developer’s fourth count in the

amended complaint, alleging unlawful exaction under 42 U.S.C. § 1983, arguing that

both SEDP and SELV lack standing and further that there was no violation of any

Fifth or Fourteenth Amendment rights. See County Mot. at 43–47; County Reply at

7. The Developer responds that it has standing to bring the claim and that the

County’s request should be denied. Dev. Resp. at 16–18. Although SELV has

standing to bring the unlawful exaction claim, the County is nonetheless entitled to

summary judgment on Count IV of the amended complaint.

A. Standing

The County challenges SEDP and SELV’s standing, arguing that they cannot

establish standing because there was no injury in fact caused by the County’s actions,

and further that SEDP’s assignment to SELV precludes SEDP’s standing

individually. County Mot. at 45–47. SEDP and SELV respond that they both have

standing because “the County cannot provide a process allowing a ‘qualified

applicant’ to enter into an agreement, but then argue that this qualified applicant

does not have standing to challenge the government’s actions with respect to such

agreement.” Dev. Resp. at 17–18.39

39 SEDP and SELV rely on Athens Cellular, Inc. v. Oconee Cnty., 886 F.3d 1094 (11th

Cir. 2018) to support their claim that the status of a “qualified applicant” alone

confers standing to bring their claim. See Dev. Resp. at 16–18. Apart from reliance

on discussion of a peripheral issue before that court addressed only in a footnote, the

case is distinguishable because the standing determination stemmed from the specific

statute, the Telecommunications Act of 1996, that is not at issue here. Indeed,

applying the specific provisions of that statute to the facts of the case, the court in

Athens Cellular analogized and explained it had “previously agreed with a district

court’s determination that a plaintiff had standing to bring its application before a

zoning board and had standing to bring a § 332(c)(7)(B)(iii) claim when it obtained a

Limited Authorization to Act as Applicant from the property owner,” thus warranting

standing for the plaintiff before the court. See 886 F.3d at 1097 n.4. Neither the

Telecommunications Act of 1996 nor the precise application at issue in that case are

currently before the Court, rendering SEDP and SELV’s assertions unsound.

Regardless, SELV has standing under the traditional three factor test.

Here, only SELV has standing to bring Count IV in the amended complaint.

See Lujan, 504 U.S. at 560 (requiring injury in fact, traceability, and redressability).

The Agreement requires SELV to fund the SR 16 Improvements, estimated to cost

$15 million, and the undisputed facts show that construction of the Grand Oaks PUD

has been halted. See Agr. at § 4d–e; County Mot. at 15; Dev Mot. at 22. SELV claims

that the County’s actions have impeded its ability to complete development of the

project. See Am. Compl. at ¶¶ 73–76. Moreover, SELV’s injury would be redressed

by a decision in its favor declaring the County’s actions in violation of the Fifth and

Fourteenth Amendments. Id. at ¶ 77. Thus, SELV has satisfied the requirements of

standing for its unlawful exaction claim, and the Court need not address whether

SEDP has standing. See Rumsfeld, 547 U.S. at 53.

B. Merits

The County argues that there was no violation of Fifth or Fourteenth

Amendment because the price increases were outside of the County’s control. See

County Mot. at 43–47; County Reply at 7. SELV responds that the County’s request

should be denied because the County imposed monetary exactions that did not bear

an essential nexus to a legitimate public purpose. Dev. Resp. at 18–20. The Court

enters summary judgment for the County.

Section 1983 of Title 42 requires that any person acting under color of law that

subjects any citizen of the United States to “the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proceeding for redress[.]” 42 U.S.C.

§ 1983. Where a claim is filed under Section 1983 alleging an unlawful exaction

concerning a development permit granted by a government entity, the Court first

considers whether an “essential nexus” exists between a “legitimate state interest”

and the permit condition exacted by the government. See Dolan v. City of Tigard,

512 U.S. 374, 386 (1994) (citing Nollan v. California Coastal Comm’n, 483 U.S. 825,

837 (1987)). Once that nexus is established, the Court “must then decide the required

degree of connection between the exactions and the projected impact of the proposed

development.” Dolan, 512 U.S. at 386. Stated simply, the government may “condition

approval of a permit on the dedication of property to the public so long as there is a

‘nexus’ and ‘rough proportionality’ between the property that the government

demands and the social costs of the applicant’s proposal.” Koontz v. St. Johns River

Water Mgmt. Dist., 570 U.S. 595, 605–06 (2013) (synthesizing Nollan and Dolan).

Here, the Court enters summary judgment on Count IV of the amended

complaint for the County because SELV fails to raise a dispute of a material fact for

the claim. A finder of fact could not conclude that the County imposed any conditions

on SELV that lacked an essential nexus to a public purpose. It is undisputed that

the Agreement mitigates transportation impacts of the development, a legitimate

state interest upon which a permit may be conditioned. See Dolan, 512 U.S. at 387–

88 (explaining that attempts to reduce local traffic congestion by a municipality

qualifies as a legitimate public purpose); see also County Mot. at 4; Dev. Mot. at 10.

The nexus between SELV’s obligation to pay for the SR 16 Improvements that

directly furthers the County’s interest in traffic mitigation is readily apparent.

SEDP contracted to assume full responsibility for completion of the SR 16

Improvements to satisfy its concurrency requirements despite the availability of

alternative avenues to satisfy its mitigation requirements under the County’s LDC.

See Dep. Phong Nguyen at 89:24–91:19, Mar. 21,2024, ECF No. 42-10; Agr. at § 42-

10; see also LDC § 11.09.06A, E (“Proportionate fair share mitigation for concurrency

impacts may include, without limitation, separately or collectively, private funds,

contributions of land, and construction and contribution of facilities”). SELV does not

challenge the lawfulness of the County’s ability to impose mitigation requirements

nor the mitigation requirements themselves. Dev. Resp. at 7 n.5. That SELV must

now abide by the contractual terms to which it agreed does not place it under the

ambit of the unconstitutional conditions doctrine. See Edwards, CDS, LLC v. City of

Delray Beach, 699 F. App’x 885, 887 (11th Cir. 2017) (“the [unconstitutional

conditions] doctrine is implicated when the government approves a land-development

project ‘on the condition that the applicant turn over property’ or denies the project

‘because the applicant refuses to do so’” (internal citations omitted)).

Moreover, SELV points to no unconstitutional conditions underlying the

alleged exaction. Unlike Nollan, Dolan, and Koontz, SELV’s obligation to fund the

SR 16 Improvements under the Agreement did not arise as a necessary factor for

approval of the Grand Oaks PUD. The County did not condition construction of the

Grand Oaks PUD such that SELV was pressured into voluntarily giving up its

property: unlike Nollan, the County did not demand an easement on any property

already owned by SELV, see, 483 U.S. at 828; unlike Dolan, the County did not

condition approval of the Grand Oaks PUD by requiring that SELV dedicate its

property for a public benefit, see 512 U.S. at 380; unlike Koontz, approval of the

development was not predicated on an agreement of concessions called for by the

County, see 570 U.S. at 601. Thus, SELV cannot demonstrate a dispute to a material

fact that may lead the finder of fact to conclude the County imposed an

unconstitutional condition to the terms of the Agreement that were voluntarily

offered by SEDP and assumed by SELV. See Hillcrest Prop., LLP v. Pasco Cnty., 915

F.3d 1292, 1299 (11th Cir. 2019) (stating that a claim under the unconstitutional

conditions doctrine must be predicated on “some other enumerated right”).

Accordingly, SELV’s claim for unlawful exaction fails, and the Court grants the

County’s motion on Count IV of the amended complaint.

CONCLUSION

For the foregoing reasons the County’s motion for summary judgment, see ECF

No. 44, is granted for Counts I, II, III, and IV in the Amended Complaint, and Count

I and the SACC. SEDP and SELV’s motion for summary judgment, see ECF No. 47,

is denied. Judgment will enter accordingly.

/s/ Claire R. Kelly

Claire R. Kelly, Judge*

Dated: September 13, 2024

New York, New York

* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by

designation.