Epoch Properties, Inc. v. City of Palmetto

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EPOCH PROPERTIES, INC.,

Plaintiff,

v. Case No. 8:24-cv-01208-WFJ-NHA

CITY OF PALMETTO,

Defendant.

_____________________________________/

ORDER

Before the Court is Defendant City of Palmetto’s (the “City”) Motion to

Dismiss the Complaint. Dkt. 41. Plaintiff Epoch Properties, Inc. (“Epoch”) has

responded in opposition. Dkt. 42. Upon due consideration, the Court grants in part

and denies in part the City’s motion to dismiss the Complaint.

BACKGROUND

This case revolves around Plaintiff Epoch’s land sale contract with Gdawg

Ventures, LLC (“Gdawg”) and the subsequent battle with the City over Epoch’s

development plans. Dkt. 1 ¶¶ 8-10. In August 2020, Epoch Properties, Inc. entered

into a purchase and sale agreement to purchase a tract of land in Palmetto, Florida

(the “Property”) from Gdawg. Dkt. 1-1 at 2, 21. Epoch agreed to a purchase price of

$8,750,000 and to deposit $50,000 in escrow to be credited toward the purchase

price. Dkt. 1-1 at 3–4. Epoch intended to develop the tract into an apartment complex

with at least 320 units. Dkt. 1-1 at 6. After all the precedent conditions had been met,

the closing date was scheduled to be the earlier of thirty days after the satisfaction

of the closing contingencies or thirty days after the expiration of the approval period.

Dkt. 1-1 at 13. Importantly, Epoch states it is only an “equitable owner of the

[P]roperty,” and “Gdawg is the record title holder of the Property.” Dkt. 1 ¶¶ 2, 9.

The Court here reflects factual allegations as set forth in the Complaint.

One of the precedent conditions was Epoch’s right to terminate if any adverse

conditions—defined as conditions that would impede the issuance of a permit or

license for Epoch’s intended use—were discovered or imposed. Dkt. 1-1 at 10–11.

Similarly, the closing contingencies were conditioned upon Epoch’s receipt of a site

plan approval from the City for Epoch’s intended use. Dkt. 1-1 at 6. The approval

period was defined as the six-month anniversary of the expiration of the inspection

date. Dkt. 1-1 at 6. The inspection date was defined as sixty days after the date of

execution of the contract or three business days after execution of an incentive

agreement with the City to provide redevelopment incentives, whichever is later.

Dkt. 1-1 at 7.

On or about March 1, 2021, Epoch submitted an initial development plan to

the City for the development of at least 320 apartment homes. Dkt. 1 ¶¶ 11, 15; Dkt.

1-1 at 6. Following the City’s request for changes, Epoch submitted an amended

application (the “Current Application”), in which Plaintiff sought the development

of at least 255 apartment homes, along with amendments to two City ordinances.

Dkt. 1 ¶¶ 16-20. These ordinances, passed in 1999, rezoned the tract to allow for

mixed-use developments. Dkt. 1 ¶¶ 16, 17. In the Current Application, Epoch also

sought a departure from city ordinances (the “Deviations”), including reducing the

size of parking, reducing perimeter landscape buffering, reducing building wall-to-

wall setbacks, and reducing setbacks along the public right-of-way. Dkt. 1-4 at 3–4.

On May 9, 2022, the City of Palmetto Planning and Zoning Board (the

“Zoning Board”) recommended approval of the Current Application at a public

hearing. Dkt. 1 ¶ 21. Following this hearing, Epoch and Gdawg entered into an

amended purchase and sale agreement (“Fifth Agreement”). Dkt. 1 ¶ 22; Dkt. 1-2 at

3. In this agreement, the parties set the inspection period to expire six months from

the date of its execution. Dkt. 1-2 at 1. However, the parties also agreed to extend

the inspection period to five business days after the satisfaction of several

conditions—one being the City’s approval of the amended development plan. Dkt.

1-2 at 1. The inspection period also extends if Epoch and Gdawg are (1) pursuing

satisfaction of the conditions or (2) are in pending litigation related to several of the

conditions. Id.

After the parties adopted the Fifth Agreement, the City held two public

hearings on the Current Application on June 1, 2022, and June 6, 2022. Dkt. 1 ¶ 28.

At the hearings, Epoch alleges that it did not have a chance to address the City

Commissioners’ questions about whether Epoch could complete development

without the Deviations. Dkt. 1 ¶¶ 25-29. Instead, the City Commissioners summarily

stated their intention to deny the Current Application. Dkt. 1 ¶ 29. On June 8, 2022,

Epoch sent a letter to the City stating that Epoch would be able to complete

development without the Deviations. Dkt. 1 ¶ 30; see Dkt. 1-3. Despite these

assurances that the Deviations could be dropped, the City adopted an order (the

“Final Order”) denying the Current Application because the Deviations were

inconsistent with the City’s overall development plan and zoning code. Dkt. 1 ¶ 32;

Dkt. 1-4 at 10.

Epoch challenged the Final Order under the Florida Land Use and

Environmental Dispute Resolution Act (“FLUEDRA”), Fla. Stat. § 70.51. Dkt. 1 ¶

35. In the FLUEDRA-required mediation proceedings, Epoch proposed a new plan

(“Revised Plan”) with lower density and no deviations. Dkt. 1 ¶ 36. The City’s

representative (City Commissioner Brian Williams) approved the Revised Plan at

the mediation. Dkt. 1 ¶¶ 37-41. Additionally, the FLUEDRA special magistrate, the

City’s attorney, the City Planning Staff, and an outside expert recommended

adopting the Revised Plan. Id. On June 27, 2023, the City held another public hearing

to consider the Revised Plan, but one City Commissioner (Tamara Cornwell)

indicated a preference for a commercial addition to the otherwise residential plan.

Dkt. 1 ¶¶ 45-47. The City Commissioners ultimately rejected the Revised Plan by a

vote of four to one. Dkt. 1 ¶ 51.

Following the City’s rejection of the Revised Plan, the City issued a

“Statement of Uses Available on Owner’s Land” for the Property as required under

FLUEDRA. Dkt. 1 ¶¶ 52; Dkt. 1-5. The City stated that Epoch could develop the

tract for “specialty retail, office, hotel, multi-family,” and “affordable housing,” but

noted that the “Commission expressed a stated desire for a mixed-use . . . with a

minimum of 20,000 square feet of non-residential uses . . . .” Dkt. 1-5 at 3. After

receiving the statement letter, an appraiser issued a report to Epoch on the valuation

of the Property, reducing its value from $7.65 million to $1 million based on the

City’s final rejection. Dkt. 1-7 at 3, 5. Gdawg and Epoch used this appraisal in a

letter they sent to the City providing notice of a claim under the Bert J. Harris Act,

Fla. Stat. § 70.001. Dkt. 1-6 at 2. The City responded, stating “the City of Palmetto

proposes no changes to its prior action.” Dkt. 1-8 at 2.

On May 17, 2024, Epoch filed the instant action against the City, alleging that

the City of Palmetto’s zoning decision renders the plot economically infeasible to

develop. Dkt. 1 ¶¶ 8, 48. Because of this infeasibility, Epoch sues the City, claiming

(1) a per se taking in violation of the Fifth and Fourteenth Amendments to the United

States Constitution and Art. X, § 6(a), of the Florida Constitution; (2) an

unconstitutional imposition of an unlawful condition under 42 U.S.C. § 1983; (3) a

violation of Plaintiff’s procedural due process rights under 42 U.S.C. § 1983; and

(4) an inordinate burdening of the property under Fla. Stat. § 70.001, et seq. Dkt. 1

at 12, 14, 17, 20. Epoch also commenced a state action against Gdawg. Dkt. 18 at 2;

Dkt. 42 at 4.

On June 24, 2024, the City moved to stay the instant proceeding during the

pendency of the state action, arguing in part that the Court does not have jurisdiction

because Epoch does not have standing to bring its claims and Epoch is not the real

party in interest. Dkt. 19 at 18–22. However, the Court struck Defendant’s standing

argument from the City’s motion. Dkt. 24.

In deciding the rest of the City’s motion to stay, the Court issued an Endorsed

Order stating that “[t]he issue [is] whether [a purchaser] could achieve standing . . .

given the fact that [purchaser] did not own the property, but was a putative vendee

on a contract to sell[,] where the seller is contending in a pending state court case

that the contract is now void.” Dkt. 37. The Court denied the motion to stay without

prejudice, reasoning that “although the case law is scant,” Epoch’s argument that it

had equitable standing was “colorable” and the contract did not read as “option

only,” which “might” otherwise “disentitle [Epoch] from asserting this . . . right as

vendee.” Dkt. 37.

The City now moves to dismiss the entire Complaint. Dkt. 41. The City argues

that Epoch does not have standing and is not the real party in interest, and even if

that were not true, Epoch has insufficiently pled its claims. Dkt. 41 at 6.

LEGAL STANDARD

I. Rule 12(b)(1) Motion to Dismiss

Motions to dismiss for lack of subject matter jurisdiction brought under

12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 232

F.3d 920, 924 n.5 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528–

29 (11th Cir. 1990)). Facial attacks challenge jurisdiction based solely on the face of

the complaint. Id. Factual attacks, on the other hand, challenge jurisdiction based on

the facts outside of the complaint. Carmichael v. Kellog, Brown & Root Servs., Inc.,

572 F.3d 1271, 1279 (11th Cir. 2009). Here, Defendant does not assert additional

facts and relies solely on the Complaint to challenge jurisdiction. Dkt. 41 at 7–11.

Because Defendant raises a facial attack, the Court must accept all the allegations in

the Complaint as true in deciding the motion. Lawrence, 919 F.2d at 1529.

II. Rule 12(b)(6) Motion to Dismiss

A complaint withstands dismissal under Rule 12(b)(6) if the alleged facts state

a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quotations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). In reviewing the complaint, all facts are accepted as true, and all reasonable

inferences from those facts are viewed in the light most favorable to the plaintiff. Id.

at 678 (citing Twombly, 550 U.S. at 556)); see also Papasan v. Allain, 478 U.S. 265,

286 (1986) (stating that legal conclusions “couched” as facts need not be accepted

as true); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (stating

that “legal conclusions masquerading as facts” will not prevent dismissal).

DISCUSSION

I. Standing—Article III and Real Party in Interest

The City’s motion purports to seek dismissal under Rule 12(b)(6) but spends

substantial time arguing Epoch lacks standing to bring its claims. Dkt. 41 at 7–11.

Standing is a prerequisite to the Court exercising judicial power—it is a “threshold

jurisdictional” issue that “must be addressed prior to and independent of the merits

of a party’s claims.” United States v. Ross, 963 F.3d 1056, 1062 (11th Cir. 2020) (en

banc) (quotation omitted) (quoting AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car

Auto Racing, Inc., 494 F.3d 1356, 1359 (11th Cir. 2007)). A Rule 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction is the proper procedural vehicle to

challenge standing. Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1234 (11th Cir.

2021). As such, the Court addresses the City’s standing argument under the 12(b)(1)

legal standard.

The City argues that Epoch lacks standing because it cannot satisfy the injury

in fact element because it holds “no legal or equitable interest” in the Property.1 Dkt.

1 The other two elements of standing—causation and redressability—are not at issue. Dkt. 41 at 11; Sullivan Props.,

Inc. v. City of Winter Springs, 899 F. Supp. 587, 592 (M.D. Fla. 1995).

41 at 11. To have standing, the plaintiff must have suffered an “injury in fact—that

is, an invasion of a legally protected interest[,] which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural or hypothetical . . . .”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted) (emphasis

added). Although Article III standing ensures the plaintiff has a “legally protected

interest,” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir. 2005) (citing

Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 1275 (11th Cir. 2000)), Article III

standing and the real party in interest requirement are “two ‘distinct issues’ with

separate considerations,” Fisher v. PNC Bank, N.A., 2 F.4th 1352, 1358 (11th Cir.

2021) (citations omitted).

a. Article III Standing

On the issue of Article III standing, Defendant argues that “Plaintiff cannot be

deemed to suffer any injury in fact, as Florida law holds that option contract holders

have no legal or equitable interest in property, especially where Plaintiff seeks

monetary compensation for its claimed property rights in this Action.” Dkt. 41 at 11.

Plaintiff responds, contending that “[Defendant] conflates the prior ‘real-party-in-

interest’ analysis with the Article III standing analysis.” Dkt. 42 at 5. The Court

agrees with Plaintiff.

Where a developer has contracted to acquire property and submitted plans to

a locality, and that locality has rejected those plans, the developer suffers an injury

in fact. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260

(1977).2 In Village of Arlington Heights, a developer contracted to acquire a property

to develop multi-family housing; the agreement required that the developer prevail

in rezoning—if not, the agreement would be rescinded. Id. at 256. The developer

submitted detailed and specific plans to the locality, but the locality refused to

rezone. Id. at 260. During litigation, the locality challenged the developer’s standing

under the injury in fact prong because “[i]ts contract of purchase is contingent upon

securing rezoning,” so “it is not the owner of the property in question.” Id. at 261.

The Supreme Court disagreed, ruling that the developer had suffered an injury

in fact because it “expended thousands of dollars on the plans . . . and on the studies

submitted to the [locality] in support of the petition for rezoning.” Id. at 262. The

Court continued, “[u]ntil rezoning is granted, many of these plans and studies will

be worthless even if [the developer] finds another site at an equally attractive price.”

Id. Thus, the developer had standing to assert its constitutional claims against the

locality. Id. at 263.

Here, Epoch’s position is analogous to the developer in the Villages of

Arlington Heights. As in that case, where the developer contracted to acquire

property under the condition of receiving the locality’s approval for the development

2 See Sullivan Props., Inc., 899 F. Supp. at 592; Brantley Cnty. Dev. Partners, LLC v. Brantley Cnty., 559 F. Supp. 3d

1345, 1358–67, 1359 n.3 (S.D. Ga. 2021), denying reconsideration, No. CV 519-109, 2022 WL 736111 (S.D. Ga.

Mar. 10, 2022); Housing Invs., Inc. v. City of Clanton, 68 F. Supp. 2d 1287 (M.D. Ala. 1999).

plan, Epoch’s agreement with Gdawg to acquire the tract was conditioned upon the

City’s approval of its development plan. See id. at 256; Dkt. 1-1 at 6–7. Like the

developer in Villages of Arlington Heights, Epoch also submitted detailed and

specific development plans that the City rejected. See 429 U.S. at 260; Dkt. 1 at 9.

Furthermore, Epoch has suffered financial harm because its plans and studies of the

Property are worthless without the City’s approval. See Villages of Arlington

Heights, 429 U.S. at 262; Dkt. 1 ¶¶ 59, 63, 67, 68, 75, 78; Dkt. 1-7 (finding the value

of the Property reduced from $7.65 million to $1 million). Thus, the Court finds that

Epoch has standing to assert its constitutional and statutory claims. Villages of

Arlington Heights, 429 U.S. at 263.

b. Epoch is a Real Party in Interest Because Epoch Holds Equitable

Title

Next, the City challenges Epoch’s status as the real party in interest to the

Property. Dkt. 41 at 7. The Federal Rules of Civil Procedure “do not contain a

specific procedure for raising” this challenge. Pro Premium Fin. Co., Inc. v. US

Premium Fin. Serv. Co., LLC, No. 0:16-CV-60009-UU, 2016 WL 6248599, at *5

(S.D. Fla. Oct. 26, 2016). A real party in interest challenge “closely resembles the

defense of failure to state a claim because it presupposes that the plaintiff does not

have the substantive right to enforce the claim being made.” New York ex rel.

Schneiderman v. Intel Corp., 827 F. Supp. 2d 369, 374 (D. Del. 2011) (quotation

omitted) (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure §

1554 (3d ed. 2010)). As such, the proper procedural vehicle for bringing this

challenge is a 12(b)(6) motion. See In Dime We Trust, RLT v. Armadillo Distrib.

Enters., Inc., No. 8:21-CV-1967-SDM-AAS, 2022 WL 4461805, at *9 (M.D. Fla.

Aug. 10, 2022) (citing Pro Premium Fin Co., 2016 WL 6248599, at *5 and

Trondheim Cap. Partners, LP v. Life Ins. Co. of Ala., 505 F. Supp. 3d 1213, 1225

(N.D. Ala. 2020)). Thus, the Court addresses the City’s real party in interest

argument under the 12(b)(6) standard.

Federal Rule of Civil Procedure 17(a)(1) provides that “[a]n action must be

prosecuted in the name of the real party in interest.” Rule 17(b)(3) further explains

that “[c]apacity to sue or be sued is determined” by state law. Florida Rule of Civil

Procedure 1.210(a) mirrors Rule 17(a)(1), but unlike the federal rule, the Florida rule

is permissive rather than mandatory because it allows anyone having an interest in

the action and the relief sought to join as a plaintiff. See Holyoke Mut. Ins. Co. in

Salem v. Concrete Equip., Inc., 394 So. 2d 193, 196–97 (Fla. 3d DCA 1981)

(explaining that, in the alternative, the plaintiff “had the right to maintain its action

in the name of” an interested party for the plaintiff’s own use and benefit) (citing

Atl. Coast Line R.R. Co. v. Campbell, 139 So. 886 (Fla. 1932)).

Under the doctrine of equitable conversion, a purchase agreement, combined

with a deposit on the purchase price, even if conditioned, confers real party in

interest status on the purchaser in actions concerning restrictions on that land. See

Andrew v. Hecker, 182 So. 251, 257 (Fla. 1938); Arko Enterprises, Inc. v. Wood, 185

So. 2d 734, 738 (Fla. 1st DCA 1966). In other words, “[t]he doctrine of equitable

conversion ‘regards as done [that which] ought to be done,’ in order to protect a

party’s interest in real property.” Veigle v. United States, 888 F. Supp. 1134, 1141

(M.D. Fla. 1995) (citing Weise v. Kizer, 435 So.2d 381, 382–83 (Fla. 5th DCA 1983),

aff’d sub nom. Ariko v. United States, 92 F.3d 1198 (11th Cir. 1996).

When a purchaser agrees to buy land from a seller and makes an earnest

money deposit, but that agreement is conditioned on clearing restrictions on the land,

with the deposit returning to the purchaser if the restrictions are not cleared, the

agreement makes the purchaser the real party in interest in a suit to remove

restrictions. See Andrew, 182 So. at 257–58. In Andrew, a purchaser agreed to buy a

property and deposited the agreed upon price. Id. at 254. However, the agreement

was conditioned upon the seller clearing restrictions, foreclosing the developer’s

intended use. Id. Because the seller’s action to clear restrictions was unsuccessful,

the purchaser then sued for the same. Id. at 257. The Supreme Court of Florida held

that the purchaser was the real party in interest in an action to clear restrictions

because the purchaser, “under the contract of sale, had an interest in the subject of

the litigation and the relief sought.” Id.

Although Andrew dealt with an action to remove restrictions, a purchaser who

agrees to buy land and makes a deposit is also the real party in interest in a suit

seeking damages. See Arko, 185 So. 2d at 740. In Arko, a purchaser agreed to buy a

parcel and paid the seller a deposit upon execution of the agreement. Id. at 735. The

seller was obligated to secure approval of the purchaser’s development plan. Id.

However, the government acquired the parcel by eminent domain prior to closing.

Id. The purchaser sued for reimbursement of the deposit, arguing that eminent

domain frustrated performance, causing recission. Id. at 736.

The Arko court reasoned that the remedy was either recission or conveyance

of the property in the form of eminent domain proceeds. Id. at 738. Under the

doctrine of equitable conversion, once the purchaser agreed to buy the property and

paid a deposit, the seller held only “naked” legal title, and the purchaser, with

“beneficial” title to the property, bore the risk of loss. Id. at 737–40 (citations

omitted). The court in Arko held that the purchaser is entitled to eminent domain

proceeds, and the seller’s remedy is a lien in the amount due on the property’s

purchase price. Id. at 740–41. The corollary of the Arko court’s ruling is that the

purchaser, who bore the risk of loss to the property and was thereby entitled to the

eminent domain proceeds, was the real party in interest in the eminent domain

proceeding seeking compensation. See id.

Here, Epoch’s position is most analogous to Andrew and Arko. As in Andrew,

where the purchaser agreed to buy land and made an earnest money deposit, Epoch

agreed to buy the tract from Gdawg and made a deposit. 182 So. at 254; Dkt. 1-1 at

3–4. In Andrew, although the agreement was conditioned upon clearing restrictions

preventing the purchaser from his intended use—a condition that failed—the

Supreme Court of Florida still held that the purchaser was the real party in interest

in the action to clear the restrictions. 182 So. at 254, 257. Similarly, Epoch’s

agreement is conditioned on approval of its plan, which has not occurred. Dkt. 1-1

at 7. Despite conditional approval, Epoch is still entitled to bring suit as the real party

in interest against the City in an action concerning restrictions. 182 So. at 257.

Additionally, although Epoch holds only equitable title, it is entitled to seek

compensation. As in Arko, where the purchaser agreed to buy a parcel and made a

deposit, Epoch agreed to buy a tract and deposited the purchase price. 185 So. 2d at

735; Dkt. 1-1 at 3–4. Like the seller in Arko, who was obligated to secure approval

of the purchaser’s plan, Epoch’s purchase agreement required the City’s approval of

its development plan. 185 So. 2d at 735; Dkt. 1-1 at 7. Importantly, as in Arko, where

the government acquired the parcel by eminent domain before closing, Epoch

factually alleges restrictions imposed on the tract amounting to a taking before

closing. 185 So. 2d at 735; Dkt. 1 ¶ 82. Therefore, having paid a deposit towards the

purchase price, Epoch holds a “beneficial” title to the tract and bears the risk of loss.

See Arko, 185 So. 2d at 738. The Court finds that Epoch is a real party in interest

under the doctrine of equitable conversion. See 185 So. 2d at 740–41.

II. Failure to State a Claim in Counts I-IV

Because Plaintiff has standing to bring its claims, the Court turns to the City’s

merit arguments for failure to state a claim under Rule 12(b)(6).3

a. Count I— Per se Takings Claim

The City contends that Epoch has failed to adequately plead a per se takings

claim because it has not been deprived of all economic use of the Property where the

value of the Property is nonzero. Dkt. 41 at 11–16. The Court agrees.

To state a claim under the Fifth Amendment’s Takings Clause, the plaintiff

must plausibly allege the government took private property “for public use.” U.S.

Const. amend. V; Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535

U.S. 302, 321 (2002). A classic taking occurs when the government exercises its

power of eminent domain to gain possession of private property for public use. See

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). Here, Epoch has not

alleged a classical taking but instead alleged a regulatory taking, which occurs when

governmental regulation of private property is “so onerous that its effect is

tantamount to a direct appropriation or ouster.” Lingle, 544 U.S. at 537. “[W]hile

property may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992).

3 Fed. R. Civ. P. 12(b)(6); Powrzanas v. Jones Util. & Contr. Co., 822 F. App’x 926, 927 (11th Cir. 2020) (“A dismissal

for failure to state a viable claim, . . . under Rule 12(b)(6) . . . is an adjudication on the merits . . .”).

Thus, the question before the Court is whether Epoch has plausibly alleged that

Defendants’ actions “[went] too far” so as to amount to a regulatory taking. Id.

The Supreme Court has “generally eschewed any set formula for determining

how far is too far,” instead “preferring to engag[e] in . . . essentially ad hoc, factual

inquiries.” Id. at 1015 (internal quotations omitted). This “ad hoc, factual inquir[y]”

is set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104

(1978), in which the Supreme Court identified several factors for courts to consider

in determining whether a regulatory taking occurred: (1) “[t]he economic impact of

the regulation on the claimant,” (2) “interfere[nce] with distinct investment-backed

expectations,” and (3) “the character of the governmental action.” 438 U.S. at 124.

The Supreme Court has further identified two “per se” takings that do not

require this case-specific inquiry: (1) where the government regulation results in

some physical invasion of the property, and (2) where the regulation denies all

economically beneficial or productive use of land. Lingle, 544 U.S. at 538. The

second category of per se takings applies only in “the extraordinary circumstance

when no productive or economically beneficial use of land is permitted.” Tahoe-

Sierra Pres. Council, 535 U.S. at 330. The Supreme Court has clarified that

“[a]nything less than a ‘complete elimination of value,’ or a ‘total loss’ . . . would

require the kind of analysis applied in Penn Central.” Id. (quoting Lucas, 505 U.S.

at 1019 n.8). Accordingly, the Supreme Court has explained, “the default rule

remains that, in the regulatory takings context, we require a more fact specific

inquiry.” Id. at 332.

Here, Epoch claims it suffered the second category of “per se” taking. Dkt. 1

¶¶ 71-83 (“By said denial, the City has, by regulation, deprived Epoch of all

economic use and value of the Property.”). As such, Plaintiff must have properly

alleged that it lost “all economically beneficial or productive use” of the Property.

Murr v. Wisconsin, 582 U.S. 383, 393 (2017) (citing Lucas, 505 U.S. at 1015). “In

the Lucas context . . . the complete elimination of a property’s value is the

determinative factor.” Lingle, 544 U.S. at 539 (citation omitted); see also Lucas, 505

U.S. at 1019 n.8 (stating that a landowner whose property value diminished 95%

could not “claim the benefit of [Lucas’s] categorical formulation”).

Defendant’s motion correctly points out that Epoch has not been deprived of

all economically beneficial use of the Property. Dkt. 41 at 11-16. Indeed, several of

the exhibits attached to Plaintiff’s Complaint provide alternative uses for the

Property. The Statement of Uses Available on Owner’s Land identified “[s]pecialty

retail, office, hotel, multi-family uses subject to the land use allocation provided in

Ordinance 2022-06,” and “[a]n affordable housing development consistent with”

Florida law. Dkt. 1-5 at 3. The City’s email response to Epoch’s Harris Act claim

enumerated a list of permitted uses and structures, (a) through (q), that could be built

on the Property. Dkt. 1-8 at 2-3. Moreover, based on Epoch’s own appraisal report,

the Property has not suffered a complete elimination of value as required by Lucas

for a per se taking. The appraisal report identifies a diminution in value of the

Property from $7.65 million to $1 million. Dkt. 1-7 at 1.

Importantly, the Court notes the Complaint is not making a “partial

regulatory” takings claim. The Supreme Court clarified that a plaintiff need not

assert that it has been deprived of all economically beneficial use of its property if

asserting a partial regulatory takings claim. See Lingle, 544 U.S. at 538–39. If

making such a claim, courts use the Penn Central factors to determine if the at-issue

regulation has caused an actionable taking. Id. If Epoch had instead alleged a partial

regulatory taking, the proper inquiry would be whether Epoch has sufficiently stated

a claim for a “Penn Central taking.” Lingle, 544 U.S. at 548; see Tahoe-Sierra Pres.

Council, 535 U.S. at 330 (2002) (“Anything less than a ‘complete elimination of

value,’ or a ‘total loss,’ . . . require[s] the kind of analysis applied in Penn Central.”

(citing Lucas, 505 U.S. at 1019–1020, n.8)). Plaintiff, however, has explicitly stated

it is making “a per se taking in violation of the 5th and 14th Amendments” because

the City deprived Epoch “of all economic use and value of the Property.” Dkt. 1 ¶

82. As pled, Epoch’s per se takings claim in Count I is dismissed without prejudice.

b. Count II—Exaction Claim

The City argues that Epoch has failed to adequately plead its exaction claim

because it previously proposed alternative uses for the Property that go beyond “the

City’s Commissioner’s expressed preference for mixed-use development.” Dkt. 41

at 16–18. Lawful exaction requires an “essential nexus” between the “legitimate

state interest” and “the permit condition exacted by the city.” See Dolan v. City of

Tigard, 512 U.S. 374, 386 (1994) (quotations omitted) (quoting Nollan v. Cal.

Coastal Comm’n, 483 U.S. 825, 837 (1987)). If that nexus exists, the court must

determine whether the condition is “rough[ly] proportional[]” to the “projected

impact of the proposed development.” Id. at 388-90; Koontz v. St. Johns River Water

Mgmt. Dist., 570 U.S. 595, 612 (2013). These tests are both properly left to the

factfinder. See MCZ/Centrum Flamingo II, LLC v. City of Miami Beach, No. 08-

22419-CIV, 2009 WL 10700923, at *9 (S.D. Fla. Mar. 4, 2009).

Here, the City’s proposed alternative uses do not automatically require the

dismissal of Count II. Epoch’s Complaint alleges these proposed alternative uses

were insincere and illusory because the City refuses to approve any development

without a mixed-use component. Dkt. 1 ¶¶ 56, 94-96. In other words, the City

Commissioners’ desire for a mixed-use development—as sufficiently alleged by the

repeated denials of Epoch’s development plan and some City Commissioners’

explicit preference for mixed-use—is an alleged excessive exaction being levied on

Epoch. See Dkt. 1 ¶¶ 29, 32, 45, 49-51, 59, 85, 91. Even after identifying the alleged

condition, an evaluation of Epoch’s exaction claim requires a fact-based analysis of

the relationship between the City’s interest in procuring a mixed-use development

and the public impacts if the Property received such a (mixed-use) development. If

mixed-use benefits are not roughly proportional to the public impacts of such

development, the exaction may be constitutionally suspect under Nollan and Dolan.

See Dolan, 512 U.S. at 391.

However, at this stage of the proceedings, the Court declines to weigh in on

such a fact-intensive inquiry. See MCZ/Centrum Flamingo II, 2009 WL 10700923,

at *9 (noting an exaction claim involves “fact-intensive inquiries” and finding

that the defendant raising “factual disputes based on matters outside the four-corners

of the Complaint” would be “inappropriate at this juncture and insufficient to support

its motion [to dismiss]”). At this time, Epoch has sufficiently alleged that the City

failed to “identify any public impact aside from those resulting from the Deviations,

which Epoch has . . . explicitly abandoned.” Dkt. 1 ¶ 89. Accepting Epoch’s factual

allegations as true, the Court finds Plaintiff has adequately pled the lack of an

“essential nexus” between the (mixed-use) condition imposed, the City’s interest,

and the public impact following Epoch’s decision to drop the Deviations. See Dolan,

512 U.S. at 386, 390. Epoch has adequately pled its exaction claim in Count II.

c. Count III—Procedural Due Process Claim

Next, the City argues that Epoch has failed to adequately plead its procedural

due process claim. Dkt. 41 at 18–21. In the Eleventh Circuit, “a § 1983 claim alleging

a denial of procedural due process requires proof of three elements: (1) a deprivation

of a constitutionally-protected liberty or property interest; (2) state action; and (3)

constitutionally-inadequate process.” Kessler v. City of Key W., No. 21-11069, 2022

WL 590892, at *3 (11th Cir. Feb. 28, 2022) (citing Grayden v. Rhodes, 345 F.3d

1225, 1232 (11th Cir. 2003)). “When state law provides an adequate means to

remedy the alleged procedural deprivation, there is no due-process violation

regardless of whether the plaintiff availed himself of that remedy.” Id. (citing

McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)); Horton v. Bd. of

Cnty. Comm’rs of Flagler Cnty., 202 F.3d 1297, 1300 (11th Cir. 2000).

The City contends that Epoch failed to plead the first element because the

Fourteenth Amendment does not protect the right to answer hypothetical questions

in a public hearing. Dkt. 41 at 20. Epoch claims that the state deprived Epoch of its

property interest “without just compensation” in violation of the Fifth Amendment.

Dkt. 1 ¶¶ 99-101. But even if the Court accepts that Epoch has sufficiently alleged a

deprivation of a procedural-due-process right, a constitutional-due-process violation

occurs only when the state refuses to provide a process adequate to remedy that

procedural deprivation. See McKinney, 20 F.3d at 1557, 1563; Horton, 202 F.3d at

1300. “The question is thus whether the state provided [Epoch] with the means to

present [its] allegations, demonstrate that the [denial of the Current Application] was

wrongful, and receive redress from that deprivation,” whether Epoch used that

process or not. Reams v. Irvin, 561 F.3d 1258, 1266 (11th Cir. 2009).

Here, the City argues there is no due process violation because “denial of the

opportunity to speak . . . is not a denial of the opportunity to be heard[,]” and the

City heard Epoch a second time in FLUEDRA proceedings. Dkt. 41 at 19–21. The

Court agrees. While Epoch may not have been allowed to answer questions during

the first public hearings (in June 2022) on the Current Application, Dkt. 1 ¶ 98, state

law provided Epoch with “an adequate means to remedy the alleged procedural

deprivation” via FLUEDRA. Kessler, 2022 WL 590892, at *3; see Fla. Stat. § 70.51.

As alleged in the Complaint, Epoch utilized the FLUEDRA-required mediation

proceedings to propose a new Revised Plan. Dkt. 1 ¶ 36. On June 27, 2023, the City

held another public hearing to consider the Revised Plan, where Epoch answered

questions from the City’s commissioners and was heard. Dkt. 1 ¶¶ 42, 44, 46, 48.

Further, the Complaint lacks any factual allegations contending that FLUEDRA is a

constitutionally inadequate process or that the state refused to make remedial

procedures available. As such, Plaintiff’s procedural due process claim in Count III

is dismissed for failure to state a claim.

d. Count IV—Harris Act Claim

The City argues that Epoch has insufficiently pled its claim under the Harris

Act because it does not hold legal title to the subject property. Dkt. 41 at 21–22. The

Court agrees. Subsection (2) of the Harris Act reads:

When a specific government action of a governmental entity has

inordinately burdened an existing use of real property or a vested right

to a specific use of real property, the property owner of that real

property is entitled to relief, which may include compensation for the

actual loss to the fair market value of the real property caused by the

action of government, as provided in this section. . . .

Fla. Stat. § 70.001(2) (2024) (emphasis added). The Harris Act defines a “property

owner” as “the person who holds legal title to the real property . . . .” Id. §

70.001(3)(f). “Inordinate burden” or “inordinately burdened” means:

[A]n action of one or more governmental entities has directly restricted

or limited the use of real property such that the property owner is

permanently unable to attain the reasonable, investment-backed

expectation for the existing use of the real property or a vested right to

a specific use of the real property with respect to the real property as a

whole, or that the property owner is left with existing or vested uses

that are unreasonable such that the property owner bears permanently a

disproportionate share of a burden imposed for the good of the public,

which in fairness should be borne by the public at large.

Id. § 70.001(3)(e)(1).

Florida law strictly adheres to the statutory language that a property owner

who commenced an action under the Harris Act must hold legal title. Dean Wish,

LLC v. Lee Cnty., 326 So. 3d 840, 848 (Fla. 2d DCA 2021); see Bair v. City of

Clearwater, 196 So. 3d 577, 581 (Fla. 2d DCA 2016) (“The Bert Harris Act contains

a very narrow waiver of sovereign immunity, see § 70.001(13), and such waiver

statutes are strictly construed[.]”). Similarly, legal title holders of adjacent parcels,

or joint legal title holders of the same parcel, cannot bring claims under the Harris

Act in strict adherence to the statute’s requirements. See Hardee Cnty. v. FINR II,

Inc., 221 So. 3d 1162, 1164 (Fla. 2017); City of Jacksonville v. Smith, 159 So. 3d

888, 889–94 (Fla. 1st DCA 2015); Vale v. Palm Beach Cnty., 259 So. 3d 951, 953

(Fla. 4th DCA 2018); DHBH Atl. L.L.C. v. City of Delray Beach, 334 So. 3d 332,

336–37 (Fla. 4th DCA 2022).

Here, Epoch does not contest that it is not the legal title holder to the subject

property as required under the Harris Act. Dkt. 42 at 13–14; Dkt. 1 ¶¶ 2, 9 (“Epoch

is the equitable owner of the [P]roperty . . . Gdawg is the record title holder of the

Property.”). Instead, Epoch argues that the existence of a “vested right” allows it to

bring the Harris Act claim because the Fifth Agreement allows Epoch to “step[] into

the shoes” of Gdawg to pursue the claim. Dkt. 42 at 13–14. The Court disagrees.

Epoch ignores the statute’s threshold requirement that only a “legal title”

holder can sue when an “existing use” or “vested right” has been “inordinately

burdened” by government action. See Fla. Stat. §§ 70.001(2), (3)(e), (3)(f); City of

Jacksonville v. Coffield, 18 So. 3d 589, 593 (Fla. 1st DCA 2009) (determining, as a

threshold issue, that the defendants were the “property owner” with legal title under

the Harris Act before analyzing the defendants’ vested right claim). In other words,

the only party eligible to sue under the Harris Act is the “property owner” with legal

title—i.e., Gdawg as the record title holder. Dkt. 1 ¶ 9; see Dean Wish, LLC, 326 So.

3d at 847 (“We recognize that the Act requires the person who holds legal title to

wait to seek Harris [Act] relief until the governmental entity has burdened the

property.”). The land sale contract cannot modify the “clear and unambiguous”

statutory requirement that Epoch be a “person who holds legal title” to the Property.

Dean Wish, LLC, 326 So. 3d at 846. Thus, the Court dismisses Epoch’s Harris Act

claim in Count IV without prejudice.

Even if the Court assumed Epoch is the “property owner” under the Act,

Plaintiff’s “vested right” claim is still inadequately pled. Epoch contends the

language in Fla. Stat. § 70.001(3)(a) means that “under Florida’s doctrine of

equitable conversion, or pursuant to express written agreement, another party may

‘step into the shoes’ of the legal title holder for the purpose of pursuing a Harris Act

claim.” Dkt. 42 at 13–14. This seems to conflate equitable conversion with the

doctrine of equitable estoppel.

The Harris Act states, “[t]he existence of a ‘vested right’ is to be determined

by applying the principles of equitable estoppel or substantive due process under the

common law . . . .” Fla. Stat. § 70.001(3)(a) (emphasis added). Under Florida law,

“[t]he doctrine of equitable estoppel may be invoked against a governmental body

when a property owner (1) relying in good faith (2) upon some act or omission of

the government (3) has made such a substantial change in position or incurred such

extensive obligations and expenses that it would be highly inequitable and unjust to

destroy the rights that the owner has acquired.” Town of Ponce Inlet v. Pacetta, LLC,

120 So. 3d 27, 29 (Fla. 5th DCA 2013) (citing Citrus Cnty. v. Halls River Dev., Inc.,

8 So.3d 413, 421-22 (Fla. 5th DCA 2009)). Indeed, “a necessary precondition for

equitable estoppel against the government is a governmental act or omission that

invites a citizen ‘onto a welcome mat.’” Coffield, 18 So. 3d at 597. This is also

insufficiently pled.

CONCLUSION

Plaintiff Epoch has not adequately pled some of its claims. Notwithstanding,

because the Complaint is the first operative complaint partially dismissed by the

Court, Plaintiff will have an opportunity to amend. Accordingly, it is hereby

ORDERED and ADJUDGED that:

1. The City’s motion to dismiss, Dkt. 41, is GRANTED-IN-PART and

DENIED-IN-PART.

2. Plaintiff Epoch’s claims in Counts I, III, and IV of the Complaint, Dkt. 1

¶¶ 71-83, 97-132, are DISMISSED without prejudice.

3. If Plaintiff chooses to file an Amended Complaint, it shall do so within

fourteen (14) days of this Order.

DONE AND ORDERED at Tampa, Florida, on March 4, 2025.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE