Petition for Writ of Certiorari — Karatinos v. Town of Juno Beach

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Supreme Court, U.S.

FILED

¥31556APR1 1994

OrriCe OF tric Urcin

In The

Supreme Court of the United States

October Term, 1993

APHRODITE E. KARATINOS and

NICHOLAS E. KARATINOS,

Petitioners,

TOWN OF JUNO BEACH, FLORIDA,

Respondent.

Petition For Writ Of Certiorari

To The District Court Of Appeal

Of The State Of Florida Fourth District

PETITION FOR WRIT OF CERTIORARI

H. LaurENCE Cooper, Jr.

Of Counsel to

BRACKETT, Cook, SNED, WELCH,

Hewitt, D’ANcIo & Tucker, P.A.

218 Datura Street

Post Office Box 3746

West Palm Beach, Florida 33402

Telephone: (407) 655-8631

Counsel of Record for Petitioners

Aphrodite E. Karatinos and

Nicholas E. Karatinos

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

— "s _en = =D

ee a Or ee

QUESTIONS PRESENTED

1. Where property owners are required to exhaust

administrative remedies before both a municipality and a

state agency prior to recovery of damages for rejection of

a development plan, if the property owners ultimately

obtain compensation for a permanent taking because of

the State’s regulation, is a municipality liable for tempo-

rary damages for the period that its zoning ordinance

barred commencement of the necessary State administra-

tive proceedings and at the same time prevented any

economic use of the property?

2. Whether the Court should resolve the conflict in

decisions of the lower courts and respond to their stated

uncertainty as to when a regulation goes too far in a

takings case and causes economic injuries which are dis-

proportionately concentrated on the property owners?

PARTIES INVOLVED

Other than Petitioners and Respondent, the only

other party to this case was the State of Florida, Depart-

ment of Natural Resources which, shortly prior to the

trial before the Circuit Court, purchased the subject prop-

erty and was dismissed from this case.

TABLE OF CONTENTS

Page

Questions Presented ..........+.-eeee eee e ee eeeeees i

Parties Involved ............e cece cece eee eeeeeeeees ii

Opinions Below ........-.--++eeeereee eee eerereeees 1

Jurisdiction. ......... 6c cece eee rete eee ee eee ee eeees 2

Constitutional, Statutory and Administrative Provi-

sions Involved ..........eeceee cece eee ereceeeees 3

Cc cee vec est ued eesetresetoeseesvecnse 3

Reasons for Granting the Petition...........-.----- 14

CURIE oo oo cco e ce ccccesveeceenceeccessesaees 28

Appendix A........-eeee cere reer ner eneeereees App. 1

Appendix B .......... eee e cere eee e reer ee rreees App. 7

Appendix C ....... ese eee e cece eect erence ences App. 15

Appendix D........-..0eeeee cece ener creer ences App. 17

Appendix E ...........eeeee reece nent eee eeeees App. 18

Appendix F ......... eee e cere cece teen eee eeees App. 22

Appendix G....... see eee reece eee e reer eerees App. 36

TABLE OF AUTHORITIES

Page

CAsEs:

A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850

ae. BOGS CUE Cae, Seer sccccciveccdasecdeniees 25

Barima Inv. Co. v. United States, 771 F.Supp. 1187

GER. BOG cciccccscccesivcsictreressticertecs 25

Bigelow v. Michigan Dept. of Natural Resources,

SFO ROe 56 Gore Ge BPG ese cv ecevsaveusscderesess 24

Carpenter v. Tahoe Regional Planning Agency, 804

Roepe. 13516 (RNG TPG sect decisencviceecss 22

City of Baltimore v. Kelso Corp., 380 A.2d 216

Fi iccnskvescatniricosmbenbatnadiseneataie 21

Dade County v. National Bulk Carriers, Inc., 450

Sea TER i. TR co oncccdcvcivececetsevieon 24, 25

Eide v. Sarasota County, 908 F.2d 716 (11th Cir.

PE Aine n5-0000dnheeebeee tp emeneenniie een euereid 24

Executive 100, Inc. v. Martin County, 922 F.2d 1536

CR, SES bdicaen pe kemmneuetbciginnndnakibesskens 25

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)

ijadpiebes bane 64 eeethbaraiaeel 14, 15, 17, 18, 19, 25

Glisson v. Alachua County, 558 So.2d 1030 (Fla. 1st

BEE Sb thos 0 0:kcdosnd enednenateaens 12, 25

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570

CR Rae SN a id dirk hb dere sede ease 24

Joint Ventures, Inc. v. Department of Transp., 563

ee ee a, SE ek 6s bs ke cba wawedadinnnes 25

TABLE OF AUTHORITIES - Continued

Kinzli v. City of Santa Cruz, 818 F.2d 1449, as

amended, 830 F.2d 968 (9th Cir. 1987)..........

Kissinger v. City of Los Angeles, 327 P.2d 10

| Serer rere rr rrrrr ery oi rr re reer er ee

Lake Lucerne Civic Ass’n v. Dolphin Stadium

Corp., 878 F.2d 1360 (11th Cir. 1989)..........

Lee County v. Morales, 557 So.2d 652 (Fla. 2nd

vt We | wer rrrrerr rr ri erie irre iy reise

Lomarch Corp. v. Mayor and Common Council of

the City of Englewood, 237 A.2d 881 (N.J. 1968) ....

Loretto v. Teleprompter Manhattan CATV Corp,,

458 U.S. 419 (1982) 2.066 ccc ccc ce reece cess.

Lucas v. South Carolina Coastal Council, 112 S. Ct.

SOGE CIDER) ccc ccecdvccecadi ceriveree ir cds 15,

MacDonald, Sommer & Frates v. Yolo County, 477

U.S. 340, reh’g denied, 478 U.S. 1035 (1986)

Page

gb 080 R EP EE EEE EEERCEEETACUFOEA CARED EF: 2, 23, 24, 26

McNulty v. Town of Indiatlantic, 727 F.Supp. 604

(OLD. Fle. 1909) ccccccecccceccceeescederserats

Mt. Healthy City School Dist. Board of Education

v. Doyle, 429 U.S. 274 (1987) ....-. 20000-2000

Monroe County v. Gonzales, 593 So.2d 1143 (Fla.

Sok TCA. BORED... caide co cde rccdvevemdrdeted ewe

Nemmers v. City of Dubuque, 716 F.2d 1194 (8th

Cir. 1983), aff’d, 764 F.2d 502 (8th Cir. 1985)...

hie: eee

TABLE OF AUTHORITIBS — Continued

Page

New Port Largo, Inc. v. Monroe County, 985 F.2d

L406. (Lith. Cis: 190G. ec cvvecvsrivivecties tetera .

Oliver v. United States, 466 U.S. 170 (1984) ...... 27 '

Orlando/Orange County Expressway Auth. v. W

& F. Agrigrowth-Ferndale, Ltd., 582 So.2d 790

2 eS SS re seeesererndt veda +

Reahard v. Lee County, 968 F.2d 1131 (11th Cir

ana EE sie Epcos aco 2 Set Es 23, 24

San Antonio River Auth. v. Garrett Bros., 528

> W.2d 266 (Tex. Civ. App: 1973)... 660 ccvevies 22

Southview Associates, Ltd. v. Bongartz, 980 F.2d

Oe 0 Ce. TOS 60 0 vec i ot-eeee eeeeeeenee ern 23

Taylor Inv. Ltd. v. Upper Darby Tp., 983 F.2d 1285

‘Fe er seme tine eee ae

Town of Indiatlantic v. McNulty, 400 So.2d 1227

CEams. Siee Ee ROE Y « <2.0:05.4y-dotememeiebenebeuaes 16

Unity Ventures v. Lake County, 841 F.2d 770 (7th |

Gabe PIES 6 0 0 6:0: 0'0-4.0.5.0'k beeen eae 24

Vatalaro v. Dept. of Environmental Regulation,

601 So.2d 1223 (Fla. 5th DCA 1992).... 14, 15, 16, 18

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252

CRUE. « & «(2204049 4-40 bak bo6o ee eeaee Caen 27

Villas of Lake Jackson, Ltd. v. Leon County, 796

Fee. 1477 CRD Bits. TSMR ie on snc anceacece. 25

Williamson County Regional Planning v. Ham-

ilton Bank, 473 U.S. 172 (1985)......... 12, 23, 24, 26

vii

TABLE OF AUTHORITIES — Continued

Page

Statutes AND ReovtLATIONs:

\ 42 US.C. Sec. 1983 (1988)... 2, 3, 11

Sec. 161.941 Florida Statutes (1979). ._.. 4

Sec. 161.053(2) Florida Statutes (1979). ......... 4

Sec. 161.053(4}(b) Florida Statutes (1979) .....5, 6, 19

Sec. 161.953(8) and (19) Florida Statutes (1979).... 18

Sec. 16B-33.98(1)(c) Florida Administrative

pedddsae. rie tA & B

Sec. 5.120 Town of Juno Beach Zoning Code

4i03 Bee errr pusererei passim

Orner AUTHORITIES:

Richard A. Epstein, “Property, Speech and the

Politics of Distrust”, 59 U. of Chicago Law Review

41 (1992).... | , 27

In The

Supreme Court of the United States

October Term, 1993

’

APHRODITE E. KARATINOS and

NICHOLAS E. KARATINOS,

Petitioners,

TOWN OF JUNO BEACH, FLORIDA,

Respondent.

oon ¢

Petition For Writ Of Certiorari

To The District Court Of Appeal

Of The State Of Florida Fourth District

PETITION FOR WRIT OF CERTIORARI

Aphrodite E. Karatinos and Nicholas E. Karatinos, by

their undersigned attorney, petition the Court to issue a

writ of certiorari to review the decision of the District

Court of Appeal Fourth District of the State of Florida in

this case.

OPINIONS BELOW

This action was originally filed in 1983 in the Circuit

Court of the Fifteenth Judicial Circuit of Florida seeking

damages in inverse condemnation against the State of

Florida Department of Natural Resources [DNR] and

seeking declaratory relief and damages for a temporary

taking pursuant to 42 U.S.C. Sec. 1983 from the Town of

Juno Beach (Juno). App. F, infra, 22-35. Shortly before trial

the DNR purchased the subject property and was dis-

missed from the case. The case against Juno went to trial

on the Amended Supplemental Complaint before the

court without a jury on the issue of whether there had

been a temporary taking. The issue of damages was

reserved for a jury trial at a later date in the event that

the court found a taking. The trial court entered its final

judgment in favor of the defendant Juno on January 7,

1992. App. B infra, 7-14. The decision of the Fourth Dis-

trict Court of Appeal, which is reported at 621 So.2d 469

(Fla. 4th DCA 1993), App. A, infra, 1-4, was entered on

April 14, 1993 affirming the final judgment of the trial

court. The District Court of Appeal denied a timely peti-

tion for rehearing on August 11, 1993, Anstead, J. concur-

ring specially with opinion. App. A, infra, 4-6. Thereafter,

on January 21, 1994, the Supreme Court of Florida denied

a petitior. for review. App. C, infra, 15-16.

JURISDICTION

The jurisdiction of this Court is invoked as this case

involves the construction and application by the trial and

appellate courts of the State of Florida of U.S. Constitu-

tional provisions, and the federal statutory provisions of

42 U.S.C. Sec. 1983. The Fifth Amendment protection

against the taking of private property for public use,

without just compensation, applies against the States

through the Fourteenth Amendment. See, MacDonald,

“

Sommer & Frates v. Yolo County, 477 U.S. 340, 342 n.1

(1986).

CONSTITUTIONAL, STATUTORY AND

ADMINISTRATIVE PROVISIO! S INVOLVED

The Fifth and Fourteenth Amendments of the United

States Constitution, 42 U.S.C. Sec. 1983 (1988), selected

provisions of Chapter 161 Florida Statutes (1979), Section

16B-33.08(1)(c) of the Florida Administrative Code, and

Section 5.120 of the Zoning Code of the Town of Juno

Beach (1979). Pertinent portions of these provisions are

reprinted and attached hereto at Appendix G.

STATEMENT

1. Petitioner Aphrodite E. Karatinos, and her hus-

band Emanuel, who has since passed away, purchased on

February 25, 1958 unimproved oceanfront property in

Juno in fee simple absolute, intending to develop in order

to provide income during their retirement. Mr. Karatinos

died in 1973 after a long struggle with cancer, prior to his

being able to develop the property. In 1976 Mrs. Kar-

atinos conveyed a one-half interest in the property to her

son, Petitioner Nicholas E. Karatinos, and they continued

to own the property in fee simple absolute until the fall of

1991 when it was purchased by the State of Florida in

partial settlement of the instant litigation.

In 1958, permits to improve were available from the

Town of Juno Beach, Florida, subject to a 50-foot setback

from the mean high-water line. In 1964 Juno established

its RM-2 Residential Moderate Density zoning on proper-

ties in the northern half of Juno (including the Karatinos

property) which allows up to 12 multifamily units per

acre. The Karatinos property is almost an acre in size. The

property has 209 feet of oceanfront and the western bor-

der (abutting state road A1A) is approximately 200 feet

from the water’s edge. Juno has ailowed multi-family

structures to be built on similar beachfront properties

south of the Petitioners’ property in the same RM-2 zon-

ing district.

Pursuant to Section 161.041 Florida Statutes (1979),

the Department of Natural Resources (DNR) posesses

exclusive right to issue permits on oceanfront property in

the State of Florida. Section 161.053(2) Florida Statutes

(1979) requires the establishment of “coastal construction

control lines [CCCL] . . . by the department [DNR] . . . for

the protection of upland properties and the control of

beach erosion.” DNR established the CCCL in Juno in

1979. The line runs through the Karatinos property, paral-

lel to the ocean, approximately 20 feet east of its western

border. Shortly thereafter, in 1979 Juno enacted Section

5.120 of its zoning ordinance which established a setback

line, 50 feet to the west of the CCCL, entirely landward of

and off of the Karatinos property. Section 5.120 states in

applicable part:

b. No wall, fence or other structure shall be

erected easterly of a point fifty (50) west of

the Coastal Construction Control Line

except as otherwise permitted by this sec-

tion.

c. Modifications to sections . . . 5.120b may be

granted only by the Town Commission.

Prior to hearing by the Town Commission

the following conditions shall be met;

(1) Approval of the requested modification

by the Florida Bureau of Beaches and

Shores [DNR]; .. .

The Bureau of Beaches and Shores is a part of the

DNR. Section 161.053(4)(b) Florida Statutes (1979) does

not allow the DNR to “ . . . contravene setback require-

ments, or zoning, or building codes, established by a

county or municipality which are equal to, or more strict

than those requirements provided herein.” Rule

16B-33.08(1)(c) Florida Administrative Code provides that

an application for a permit from the DNR must contain

“ .. written evidence, provided by the appropriate local

governmental agency having jurisdiction over the activ-

ity, that the proposed activity as submitted to the bureau

[Bureau of Beaches and Shores] does not contravene local

setback requirements or zoning or building codes.” Thus,

Juno’s requirement of prior DNR, Beaches and Shores

approval inherently conflicts with the State’s statutory

and regulatory requirement of prior local approval.

The Karatinos began development activities in the

summer of 1980 seeking to build two 3,500 square foot

residences on their property. This is a very modest project

in view of the property’s size (almost an acre) and the

fact that the RM-2 zoning allows up to 12 units per acre.

Oceanfront property owners in Juno immediately south

of the Karatinos property built high density multi-family,

multi-story buildings to take full advantage of the RM-2

zoning. An architect was retained to press for project

approval and complied with all of Juno’s demands during

the application process. At Juno’s request, he submitted

an application for site plan approval together with draw-

ings which showed the exact placement of the project on

the property. The site plan was presented by the architect

at a Planning and Zoning Commission regular meeting

chaired by Zoning Commissioner Don Durnell, and fol-

lowing that at a City Commission workshop. Planning

and Zoning recommended disapproval because the pro-

ject failed to comply with ordinance 5.120. App. F, infra,

25. Although not specifically noted by Planning and Zon-

ing, the provisions not complied with were the 50 foot

setback line and prior approval from Beaches and Shores

[DNR]. Then, on January 13, 1982, the architect presented

the project to the Juno Town Commission, Juno’s highest

legislative body, which followed the recommendation of

Planning and Zoning and denied site plan approval.

Petitioners did not file suit against Juno at this time

because in order to obtain a modification of its 50 foot

setback requirement ordinance 5.120 required approval of

DNR (Beaches and Shores). Accordingly, Petitioners’

experts submitted a project application to the DNR seek-

ing project approval. DNR refused to accept the project

application, relying upon the statute [Sec. 161.053(4)(b)

Florida Statutes (1979)] and regulations [Sec.

16B-33.08(1)(c), Florida Administrative Code] which

require prior project approval from a local jurisdiction.

The Karatinos appealed to the Governor, who, with the

Cabinet, collectively constitute the head of DNR, seeking

a waiver from this requirement, but were refused. Thus,

Juno’s application of its zoning ordinance created a clas-

sic “Catch-22” as neither Juno’s ordinance nor the State’s

requirements could be satisfied. App. A, infra, 3.

Following DNR’s refusal, the architect returned to

Juno and sought a waiver from the provision of ordinance

5.120 from Juno’s Zoning Commissioner, Don Durnell,

who had chaired Juno’s Planning and Zoning Commis-

sion which had reviewed the project in December 1981.

By letter of October 27, 1982, Mr. Durnell refused to

provide a statement of no objection to the project. The

architect again sought project approval from Juno, or in

the alternative, Juno’s final determination. By letter of

November 15, 1982, (App. D, infra, 17) Mr. Durnell stated:

After our meeting on November 5, 1982, I

requested an opinion from the Town attorney

regarding my letter to you dated October 27,

1982. Mr. Adams opinion is that the Juno Beach

Commissioners denial of the Karatinos request

on January 13, 1982 is final and not subject to

appeal. . . . [Emphasis supplied]

Their modest project rejected by both Juno and by the

State, in 1983 the Karatinos filed the instant lawsuit nam-

ing both Juno and the State of Florida, seeking declara-

tory relief from zoning ordinance 5.120 and damages.

Their complaint, App. F, infra, 22-35, alleged violation of

federal Constitutional provisions, Id. at 29 and 31, and of

42 U.S.C. Sec. 1983, Id. at 30.

Due to the cost of construction and the heavy burden

of exhausting all administrative remedies before Juno and

the State, the two-home project was no longer financially

viable. The project was upgraded to 6 residential units

which were still well within RM-2 density. The architect

submitted detailed construction plans to Juno which

would be sufficient to allow a contractor to bid the pro-

ject and build it.

The provisions of ordinance 5.120 remained in effect

in 1983, 1984 and 1985 which barred the filing of a project

application with the State, DNR. In addition, Juno’s Com-

prehensive Plan which showed the Karatinos property as

recreation and open space conflicted with Juno’s RM-2

zoning of the property which allowed up to 12 units per

acre. App. F, infra, 24-25. This conflict had been created

by Juno’s own action in June 1979 when Juno had enacted

its Comprehensive Plan. Despite written protests to Juno

and meeting with Juno officials by the Karatinos zoning

attorney and architect in the period July through Novem-

ber 1984, Juno refused to correct this self-created impedi-

ment and insisted that the Karatinos p: .‘°n to change

the Comprehensive Plan so that it wev' conform to

Juno’s zoning map, which they did.

On December 12, 1984, Juno’s planning consultant

issued his report acknowledging the conflict between the

Comprehensive Plan and the zoning ordinance. With a

trial date approaching, on March 6, 1985 Juno held a

public hearing on the issue of changing the Comprehen-

sive Plan to conform to the RM-2 zoning. The Plan was

amended by Juno on May 8, 1985 to correct the inconsis-

tency. On May 20, 1985, Planning and Zoning recom-

mended denial of Petitioners’ six unit project. On June 3,

1985, Petitioners’ architect was required by Juno to file an

application for “special exception/variance” prior to con-

sideration of the project by the Town Commission. The

Karatinos were seeking to build residences which were

squarely within the intent of the RM-2, moderate density

residential zoning. They were not seeking to build a

church or a gas station which would require a special

exception. Only a modification of ordinance 5.120’s 50

foot setback line and waiver of the requirement of prior

DNR approval were essential from Juno which would

allow the State permit process to begin. Despite this,

Petitioners continued to follow Juno’s instructions in the

applications process. The form was submitted, following

which a public hearing was held before the Town Com-

mission on June 10, 1985. The Town Commission sur-

prised Petitioners by issuing a resolution allowing two

units rather than the six units requested. Petitioners’

architect and attorney protested the proposed reduction

to two units as the zoning clearly allowed six units, the

lesser project was no longer financially feasible, and there

was no application pending for two units. Despite Peti-

tioners’ objections, at a public hearing on August 14,

1985, the Town Commission approved two units.

At trial in 1991, Petitioners’ experts, including an

engineer, a coastal engineer, an architect, a contractor and

construction estimator, and an appraiser together demon-

strated that a two unit structure built in accordance with

DNR requirements would not have been economically

feasible in 1985, 1987, or in 1991. App. B, infra, 9-10. Juno

offered no expert testimony in rebuttal. Mr. Karatinos

testified that the two-home project was marginally eco-

nomically feasible in 1982.

Juno rejected the six unit project despite its meeting

Juno’s RM-2 moderate density residential zoning require-

ments. On September 17, 1985, Juno by letter transmitted

its Resolution 85-10 (App. E, infra, 18-21) to the DNR

expressing the Commission’s opposition to any construc-

tion on the Karatinos property, and urging the State to

defend its Coastal Construction Control Line. Id. at 18.

Juno’s Resolution belied its indicated approval of two

units which is not mentioned in the Resolution. The Reso-

lution itself states, inter alia, that Juno “ . . . granted a

special exception and modification to the [Juno] setback

line . . . only because of the existing litigation and the

Town’s lack of financial resources to defend said litiga-

tion and to purchase said property should inverse con-

demnation be granted.” Id. at 20.

~ omar

2. The DNR after numerous submissions by Peti-

tioners’ experts beginning in the fall of 1985 finally on

March 13, 1986 acknowledged that the application for a

permit was complete. On May 20, 1986, the Governor and

Cabinet, sitting as head of DNR, affirmed the staff recom-

mendation and disapproved the application based upon

environmental considerations. A timely appeal was filed

and a hearing was held before a State Hearing Officer in

October 1986 who, on February 19, 1987, issued recom-

mended Findings of Fact and Conclusions of Law affirm- .

ing the decision of the Governor and Cabinet. On May 1,

1987, the Governor and Cabinet adopted his findings and

finally denied the application on environmental grounds.

App. F, infra, 26-27.

Trial activity, which had been abated pending a final

administrative determination, resumed. The DNR filed a

motion for summary judgment and supporting affidavit

of Alfred Devereaux, then Chief of the Bureau of Beaches

and Shores of the DNR, who stated that it might be

possible for the DNR to approve a structure cantilevered

over the CCCL on the Karatinos property. This showed

that the DNR had not foreclosed approval of a residential

structure on the Karatinos property. Mr. Devereaux’s

sworn statement was contradicted at trial by Ralph Clark,

in |

a DNR coastal engineer, who testified that DNR would

never have permitted any building seaward of the

Coastal Construction Control Line on the Karatinos prop-

erty. It was not until August 31, 1991 that the DNR,

through its attorney, wrote Petitioners acknowledging

that the DNR had determined that it would not allow any

residential structure on the Karatinos property. Shortly

thereafter, the DNR purchased the Karatinos property

and was dismissed from the case.

3. The matter was litigated before the trial court

seeking damages from Juno for a temporary taking pur-

suant to 42 U.S.C. Sec. 1983 and federal Constitutional

provisions. App. A, infra, 2, 5. The trial court held that

Petitioners had exhausted their administrative remedies

before Juno and thus reached the merits of the “taking”

claim. App. B, infra, 11. Standing at the end of the admin-

istrative process, the Court found ” .. . that there was no

possible way that the Plaintiffs were ever going to get

approval from the State to build inside the coastal con-

struction control line.” Id. at 10. The court determined

that the project was “ . . . doomed, regardless of the

Town’s actions.” Id. at 10. The Court held it unessential to

determine whether Juno had misapplied its administra-

tive procedures in insisting upon either a modification or

a variance in consideration of Petitioners’ projects, and

did not reach the issue of Juno’s down-zoning of the

property to two units as the number of units did not

matter in view of the factual holding that Petitioners

“ .. stood no chance of getting State approval.” Id. at 11.

Finally, the Court held that Juno’s error on its land use

maps vis a vis the zoning ordinance (“recreational” versus

RM-2) did not result in a denial of property rights as Juno

took adequate steps to correct its error, and that despite

its “recreational” designation of the property, Juno did

not seek it as such. Id. at 11. The Court denied the request

for damages, stating:

Section 5.120(b) of the Town’s Ordinances (50’

setback) is not an improper or unlawful exercise |

of the Town’s police power. This regulation is

not so onerous that it in effect appropriates the

property. It had no known diminution in the

investment-profit contemplated (since the

D.N.R. killed all Plaintiffs’ plans). The fact that

the Plaintiffs’ property is entirely inside the set-

back, is not dispositive. There is a variance or

modification procedure and the regulation when

viewed in light of its purpose, its generic effect

and economic impact, is not an invalid exercise

of police power. E.g., Williamson Co. Regional

Planning v. Hamilton Bank, 105 S. Ct. 3108 (1985),

Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1

D.C.A. 1990), McNulty v. Town of Indialantic (sic),

727 F.Supp. 604 (M.D. Fla. 1989). Id. at 13.

Thus, the trial court rejected the federal Constitutional

and federal statutory matters presented to it.

4. All of the federal Constitutional and federal stat-

utory matters presented to the trial court were raised

again to the appellate tribunal which affirmed the lower

court, acknowledging that the Karatinos were caught in

“a classic Catch-22” between Juno and the State, App. A,

infra, 2-3, but noting, inter alia:

In 1991 DNR purchased the Karatinos’ property,

but the Karatinos continued their claim against

the town, claiming they were improperly

deprived of all use of their property by the town

from 1982, when the town first turned their

a aaaeaeteenaeninniann eae

project down, to 1985, when the town approved

two units. The town denied that it did anything

improper and, in the alternative, argued that if

its actions were improper they were not the

cause of the Karatinos’ damages. We agree with

the town’s alternative argument and therefore

need not decide whether it acted properly. Id. at

The Appellate Court accepted the lower court's factual

finding that Petitioners would never have gotten

approval from DNR to build seaward of the Coastal Con-

struction Control Line and that accordingly the project

“ ... was doomed, regardless of the Town’s action.” Id. at

4. The Court acknowledged that since DNR did not pur-

chase the property until 1991, there was a possibility that

DNR would have approved their project during 1982 to

1985. Id. at 4. The Court concluded, “[WJhile this may

have been a possibility, it cannot be the basis to reverse

findings of fact supported by competent evidence that

DNR would never have allowed anything to be built on

the property.” Id. at 4.

Petitioners’ motion for rehearing was denied,

Anstead, J., concurring specially. Judge Anstead termed

Juno’s insistence upon applying its ordinance provision

to the property requiring prior state approval in the

period January 1982 through September 1985 a

“ .. snafu that was eventually worked out.” Id. at 6. He

finds “. . . no doubt that the town’s ordinance and action

delayed the owners’ attempt to get a final answer to their

request to develop.” Id. at 5. Judge Anstead stated fur-

ther:

... | would place this delay more in the category

of the “normal delays” created by the myriad of

governmental procedures mentioned by the

Supreme Court in First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304, 321 ..., as not giving rise to a temporary

taking or entitlement to compensation. Obvi-

ously, not every delay in the development pro-

cess attributable to the government results in a

“temporary taking”. This is true even where the

delay is the “fault” of the government. Id. at 5-6.

5. The Supreme Court of the State of Florida denied

Petitioners’ Request for Review on January 21, 1994. App.

C, infra, 15.

REASONS FOR GRANTING THE PETITION

The factual finding by the Trial Court was that Peti-

tioners’ project was “doomed” because of the State

Coastal Construction Control Line (CCCL). App. B, infra,

10. Because of that, Petitioners ultimately received per-

manent taking damages in a settlement with the State. Id.

at 9. The Town of Juno Beach denied the Petitioners’

application for project approval in January, 1982 but the

State, DNR did not finally deny Petitioners’ application

until May, 1987. Under established precedent in Florida,

Vatalaro v. Dept. of Environmental Regulation, 601 So.2d

1223 (Fla. 5th DCA 1992), the actual “taking” did not

occur until Petitioners had exhausted their administrative

remedies before the Town and the State by getting a final

order from the Governor and Cabinet of the State of

Florida on May 1, 1987, following specific findings of fact

in a State administrative hearing. In Lucas v. South Caro-

lina Coastal Council, 112 S. Ct. 2886 (1992) it was held that

the mere possibility that a permit could be awarded was

sufficient to require exhaustion of all administrative

remedies. The holding that Petitioners suffered no dam-

age from the Town’s denial because they were never

going to get a permit from DNR, conflicts with the hold-

ings that a taking does not occur until denial of the

landowners’ permit application. The decision in this case

rolls back the effect of the DNR taking to a much earlier

date.

In deciding this case on the facts alone the lower

Courts have overlooked the application not only of Lucas

and Vatalaro, but also First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304 (1987) in

which this Court held that a property owner is entitled to

compensation where a regulation, even though tempo-

rary, deprives the property owner of all beneficial use of

its property. Juno’s ordinance 5.120, of course, deprived

the property owners of all beneficial use of this property,

absent a modification, but inherent within the ordinance

itself was a bar to Petitioners ever obtaining a modifica-

tion because of the “Catch 22” the ordinance created with

the State regulation. Petitioners in this case are entitled to

compensation because the municipal ordinance made it

impossible for the Petitioners to even seek permanent

taking damages from the State at any time prior to the

time when the Town finally permitted the Petitioners to

complete their application for the State permit.

As set forth infra, at pp. 22-25, the U.S. Courts of

Appeals and the Florida courts have stated their uncer-

tainty as to when a regulation goes too far in takings

cases, finding that takings decisions depend largely upon

the particular circumstances in each case which are to be

decided on an ad hoc, factual basis. As the courts, gov-

ernment and property owners have become more experi-

enced in dealing with “takings” issues, it may be

appropriate to provide guidance as to when a govern-

mental regulation goes too far in a takings case and

causes economic injuries which are disproportionately

concentrated on the property owners. Clarity on this

point would avoid the delay which often occurs in tak-

ings cases, and the potential for economic losses to gov-

ernment and property owners, in which, as here, the

Petitioners were required to deal with both state and local

government, and could not even reach the State as Juno,

using various tactics of delay, refused for almost four

years to release Petitioners’ project application.

1. In 1982, a complaint against only the DNR alleg-

ing that the State had “doomed” any habitable project

would have been promptly dismissed had Petitioners not

first fully exhausted their administrative remedies before

both Juno and the State. See, e.g., Town of Indiatlantic v.

McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981). Thus, the

ruling in this case that one can look to the end of the

administrative process and determine that a project was

“doomed” ab initio turns the law on its head and is

inconsistent with extant takings precedent. See, e.g.,

Vatalaro v. Dept. of Environmental Regulation, 601 So.2d at

1223, which held that no taking occurred until the

Department denied the landowner’s permit application.

Moreover, in Lucas, 112 S. Ct. at 2286, Lucas filed suit

without submitting a development plan, as the South

Carolina coastal act from 1988 to 1990 did not provide for

an exception to its coastal control line. The Court

accepted the controversy as ripe and considered the case

on its merits, finding a taking. Upon remand, the Court

required Lucas to seek to secure a special permit for

project approval pursuant to an amendment to the coastal

act passed in 1990 which provided for a variance pro-

cedure. The Court did not speculate whether South Caro-

lina had ever made an exception to its coastal act — the

mere possibility that a permit could be awarded was

sufficient to require full exhaustion of all administrative

remedies, including the submission of a development

plan to the political authorities, giving them an oppor-

tunity to approve or to reject it.

As the record in this case demonstrates, Petitioners

were careful to comply with all requests of Juno and of

the State in the administrative process. In January 1982,

they received a final determination from Juno’s Town

Commission, Juno’s highest legislative body, which

rejected the project, applying ordinance 5.120 which is

facially inconsistent with extant state laws and regula-

tions. This created a “Catch 22” which Juno’s agent, Zon-

ing Commissioner Don Durnell, by letter reaffirmed as

“final”. App. D, infra, 17. Having received a “final” denial

of their modest two home project, the Karatinos were

squarely within the holding of First English Evangelical

Lutheran Church, 482 U.S. at 321, wherein the Court

stated:

We merely hold that where the government’s

activities have already worked a taking of all

use of property, no subsequent action by the

government can relieve it of the duty to provide

compensation for the period during which the

taking was effective. .. . the ordinance in ques-

tion denied appellant all use of its property.

; Accord, Lucas, 112 S. Ct. at 2901, fn. 17 of the majority

opinion. Thus, Juno’s subsequent approval of 2 units in

August, 1985 should not relieve it from providing com-

pensation for its earlier, “final” denial of a permit for

reasonable use of the property. The holding in First

English in part was intended to prevent the very abuse

which occurred here, to prevent an overregulating gov-

ernment from escaping a compensation claim by simply

withdrawing it where it appeared that the regulatory

action would result in liability.

After Juno issued Resolution 85-10, App. E, infra,

18-21, in August, 1985, the administrative process shifted

to the State, DNR. The heavy burden of exhaustion of

administrative remedies required that a project deter-

mination be secured from the Governor and Cabinet who

together sit as the head of the DNR as they have legal

discretion to approve a project which encroaches upon

the CCCL. See Sec. 161.053(8) and (10) Florida Statutes

(1979). It was not possible to know in advance that the

Governor and Cabinet would deny project approval. The

rulings in this case in reliance upon a factual holding that

the Governor and Cabinet had “doomed” any habitable

structure prior to being put to the test represents a signif-

icant change in extant law and places an impossible bur-

den on the property owners who under extant law must

initially exhaust administrative remedies. See Vatalaro,

Lucas, and First English Evangelical Lutheran Church cited

above.

iim

ae. ee... ee ee

Even though the State in 1991 finally decided that it

would not allow any habitable structures on its property,

and thus “doomed” any project, the law does not excuse

Juno from the application of the temporary takings hold-

ings of this Court. Under Florida law, [Sec. 161.053(4)(b)

Florida Statutes (1979), Sec. 16B-33.08(1)(c) Florida

Administrative Code] Juno initially possessed sole con-

trol over the permit process as Florida’s coastal legisla-

tion requires local approval prior to the State’s

consideration of a permit. Juno’s “final” denial of the

modest two home project in 1982 was a taking which,

even if subsequently modified, could not nullify the

requirement to compensate for the temporary taking. A

holding in hindsight that the State in 1991 ultimately

“doomed” the project cannot be a defense to Juno’s

“final” denial of project approval in 1982 during a period

in which the State had no control over the permit process

and which was based upon Juno’s self-created conflict of

its ordinance with State law.

Judge Anstead in his specially concurring opinion,

App. A, infra, 5-6, places the delay of almost four years in

the category of the “normal delays” mentioned in First

English, 482 U.S. at 321, that “we limit our holding to the

facts presented, and, of course, do not deal with the quite

different questions that would arise from normal delays

in obtaining building permits, changes in zoning ordi-

nances, variances and the like which are not before us.”

Had the Town granted Petitioners’ request for a letter of

no objection in late 1982 or even had the Town responded

in 1983 when the allegations of the Complaint again

informed it of the problem, the factual situation might

have met the language of this Court, but here the Town

made no effort until late 1985 to change its zoning ordi-

nance, was not conducting any investigation and was not

doing anything to alleviate the problem which it created.

First, Juno continued to stand on the provisions of

ordinance 5.120 which were facially defective in requiring

prior state approval of any project. This barred the filing

of any project application with the state for almost four

years until waived by Juno in the fall of 1985.

Second, Juno, when it enacted its Comprehensive

Plan in 1979, created an inconsistency between its land

use map which showed the Karatinos property as recre-

ation and open space, and its zoning ordinance which

allowed up to 12 units per acre on the property. Juno was

asked to waive its self-created inconsistency, but refused.

Designating the Karatinos property as a recreational area

is the clearest kind of taking as it directly substitutes

public enjoyment of property for private property use

and enjoyment. Rather than accepting its obligation to

govern, Juno shifted the burden to the Karatinos, placing

it on the wrong party. Juno’s action delayed the Karatinos

approximately nine additional months, increased their

costs, and was a taking of their property. See, e.g.,

Lomarch Corp. v. Mayor and Common Council of the City of

Englewood, 237 A.2d 881 (N.J. 1968) where a one-year

reservation for park and playgrounds was held a taking.

In order for the court to uphold the constitutionality of

the statute, it engrafted a requirement that the city pay

the equivalent of an option payment for the property.

Third, Juno insisted that Petitioners file for a “special

exception/variance” for their 6 unit project in 1984-85.

The process of site plan review utilized by Juno in 1982 in

evaluating the two home project was well adapted to

reaching a determination for project approval as the

architect’s plans showing the exact placement of the pro-

posed building on the site allowed an effective review by

Juno. Requiring a “special exception/variance” for the 6

residential units was facially unnecessary as the RM-2

zoning allowed residences and Petitioners were seeking

to build residences. They had not sought to build, for

example, a church or a gas station, which would have

required a “special exception/variance.”

Fourth, Juno in 1985 decided to down-zone the prop-

erty, reducing the project from six units to two units even

though the RM-2 zoning allowed up to 12 residences per

acre, no application was pending for two units, and Juno

had been informed by the Karatinos attorney and archi-

tect that two units was no longer financially feasible.

Down zoning is unlawful if the intent is to limit potential

liability in litigation. See Kissinger v. City of Los Angeles,

327 P.2d 10, 16 (1958); City of Baltimore v. Kelso Corp., 380

A.2d 216, 220 (1977). In this regard, Juno’s intent to limit

its liability is manifest in its Resolution 85-10:

... the Town... granted the Karatinos a special

exception and modification to the set back line-

. . only because of the existing litigation and

the Town’s lack of financial resources to defend

said litigation and to purchase said property

should inverse condemnation be granted. App.

E, infra, 19-20.

In the context of all of Juno’s actions, including the

transparent rationalization of Resolution 85-10, and

Juno’s reliance upon a succession of self-created mistakes

and inconsistencies to delay the project, was the delay a

“normal” one, or was Juno seeking to reduce its liability

in the face of takings litigation and its desire to preserve

the Karatinos property for its own purposes? See, e.g.,

Nemmers v. City of Dubuque, 716 F.2d 1194, 1195-96 (8th

Cir. 1983), aff’d 764 F.2d 502 (8th Cir. 1985) where the city

annexed land already zoned for industrial park purposes

and scheduled for private development and then the city

proceeded for over a four year period to change its

municipal mind four times as to its preferred use; San

Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266, 274

(Tex. Civ. App. 1975) where the city attempted to “rig”

the market in its favor under the guise of the police

power by withholding permits and otherwise interrupt-

ing private development.

Both the trial court and the intermediate appellate

court appear influenced by the fact that the property was

sold to the State of Florida to satisfy a permanent taking.

Damages should be available from Juno for a temporary

taking which occurred during a finite time prior to the

sale of the property during which Juno had sole control

over the permit process. See Carpenter v. Tahoe Regional

Planning Agency, 804 F.Supp. 1316, 1322 (D.Nev. 1992)

where the court concluded as a matter of law that the sale

of plaintiff’s property to the State for “fair market value”

did not waive any rights she had to sue for compensation

for a temporary taking of land that she did not any longer

own.

2. When does government regulation go too far in

depriving a property owner of the use of her property

resulting in a taking? The Court has held that takings

challenges are not ripe unless the property owner has

ee eT ea ee ae Tee ee me

given local land-planning authorities the opportunity to

render a final decision on the nature and extent of the

impact of the zoning ordinances on the property. See

Williamson Planning Comm. v. Hamilton Bank, 473 U.S. 172,

193 (1985). In MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340, 351-52 (1986) the property owner’s claim

was found to be premature because, even though the

plan’s rejection was appealed, the property owner had

not submitted less intensive development plans with the

planning commission which left open the possibility that

some development would be permitted. In dissent Justice

White offered his own view of the finality issue:

For example, if a landowner applies to develop

its land in a relatively intensive manner that is

consistent with the applicable zoning require-

ments and if the governmental body denies that

application, explaining that all development will

be barrec under its interpretation of the zoning

ordinance, I would find that a final decision

barring all development has been made - even

though the landowner did not apply for a less

intensive development.

The Eleventh and Second Circuits in Reahard v. Lee

County, 968 F.2d 1131, 1135 (11th Cir. 1992), cert. den., 61

USLW 1365, and Southview Associates, Ltd. v. Bongartz, 980

F.2d 84, 105 (2d Cir. 1992) state that there has been much

confusion as to when a regulation goes too far in takings

cases which are decided largely upon the particular cir-

cumstances in each case on an ad hoc, factual basis. The

Third Circuit in Taylor Inv. Ltd. v. Upper Darby Tp., 983

F.2d 1285, 1291 (3rd Cir. 1993) after reviewing the takings

cases concluded that “ .. . neither Williamson nor Mac-

Donald explained whether the finality rule applies to chal-

lenges to land use decisions under any constitutional

theory or only takings-type claims.”

The Seventh and Ninth Circuits recognize a “futility

exception” in determining ripeness issues, but require the

submission of one meaningful zoning application. Unity

Ventures v. Lake County, 841 F.2d 770, 775 (7th Cir. 1988),

cert. denied, 488 U.S. 891 (1988); Kinzli v. City of Santa

Cruz, 818 F.2d 1449, as amended, 830 F.2d 968 (9th Cir.

1987), cert. denied, 484 U.S. 1043 (1988). The Eleventh

Circuit appears to be in accord. See, e.g., Reahard, 968 F.2d

at 1135 n.7; Eide v. Sarasota County, 908 F.2d 716, 725 (11th

Cir. 1990); but compare Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570, 1576 (11th Cir. 1989), stating in dicta, that it

is “not at all clear” that a final decision requirement

should apply to a substantive due process claim premised

on an arbitrary zoning decision. The Sixth Circuit does

not require a project application if it would be futile,

finding that “ . . . a procedural due process claim is

instantly cognizable in federal court without requiring a

final decision on a proposed development from the

responsible municipal agency.” Bigelow v. Michigan Dept.

of Natural Resources, 970 F.2d 154, 159 (6th Cir. 1992).

New Port Largo, Inc. v. Monroe County, 985 F.2d 1488,

1493-94 (11th Cir. 1993), U.S. app. pendg., reviewed the

current status of the Florida takings cases which reflect

the uncertainty of the federal cases. The court, Id. 1493,

noted that as recently as 1984 Florida courts did not

recognize damages claims arising from regulatory tak-

ings. See Dade County v. National Bulk Carriers, Inc., 450

So.2d 213, 216 (Fla.1984). The Court stated further, 985

F.2d 1493-94, n. 12:

Eleventh Circuit panels disagree as to whether

Florida now recognizes a cause of action for

damages wrought by regulatory takings. Com-

pare Lake Lucerne Civic Ass’n v. Dolphin Stadium

Corp., 878 F.2d 1360, 1370 (11th Cir. 1989) (no

cause of action), cert. denied, 493 U.S. 1079), A.A.

Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d

1483, 1486-88 & n.3 (11th Cir. 1988) (same), cert.

denied, 490 U.S. 1020, and Corn II, 816 F.2d at

1520 (same) with Executive 100, Inc. v. Martin

County, 922 F.2d 1536, 1542 (11th Cir.) (citing

Joint Ventures, Inc. v. Department of Transp., 563

So.2d 622, 622 (Fla. 1990), as recognizing inverse

condemnation action), cert. denied, 112 S. Ct. 55;

see also Villas of Lake Jackson, Ltd. v. Leon County,

796 F.Supp. 1477, 1481-83 (N.D.Fla.) (recogniz-

ing Corn II, but following Executive 100); Barima

Inv. Co. v. United States, 771 F.Supp. 1187, 1189

(S.D.Fla.1991), aff'd, 959 F.2d 972 (11th Cir. 1992).

Similarly, Florida District Courts of Appeal have

not settled on a single rule. Compare Monroe

County v. Gonzales, 593 So.2d 1143, 1145

(Fla.Dist.Ct.App.1992) (finding inverse condem-

nation remedy), Orlando/Orange County Express-

way Auth. v. W. & F. Agrigrowth-Fernfield, Ltd.,

582 So.2d 790 (Fla.Dist.Ct.App.) (axiomatic that

inverse condemnation exists under United

States Constitution), review denied, 591 So.2d 183

(1991) and Glisson v. Alachua County, 558 So.2d

1030, 1035 (Fla.Dist.Ct.App.), review denied, 570

So.2d 1304 (Fla.1990) with Lee County v. Morales,

557 So.2d 652, 656 (Fla.Dist.Ct.App.), (without

reference to First English, applied National Bulk

Carriers to reject inverse condemnation claim),

review denied, 564 So.2d 1086 (Fla.1990).

Petitioners’ project applications, particularly the ini-

tial application in 1981 for two homes tc be placed on

property almost an acre in size, were modest in nature,

met Juno’s density requirements and the residential

intent of the RM-2 zoning, and were the kind of “less

ambitious plan” that Juno should have approved. Mac-

Donald, Frates, 477 U.S. 352-53 at fns. 8 and 9. Petitioners

complied with all of Juno’s requirements during the

application for site plan approval in 1981 including draw-

ings prepared by their architect showing the exact place-

ment of their modest project on the property. Juno’s

rejection of the initial project in January 1982, reaffirmed

as “final” by Zoning Commissioner Durnell, App. D,

infra, 17, was based upon Juno ordinance 5.120 which was

facially inconsistent with state law and regulation sover-

eign to it. In these circumstances, the Petitioners appear

to have met the requirement of “finality” in Williamson,

473 U.S. at 193-94, in that they submitted at least one

meaningful project application which was rejected as

“final” by Juno.

The lower courts in this case should have held that a

temporary taking occurred from the time Juno applied its

facially unlawful ordinance to Petitioners’ modest project,

and engaged in a succession of pretextual acts seeking

delay and to limit its liability, until the fall of 1985 when

Juno finally waived its application. Much of the delay in

Juno’s handling of Petitioners’ project applications could

have been avoided if the law were clear that upon the

submission of an appropriate project application, the bur-

den shifts to government to apply all of its ordinances,

laws and regulations, however conflicting, to its project

determination.! This is not an unreasonable burden as

government is expert in the handling and consideration

of its own project application procedures. Once the bur-

den has shifted to government, it can offer at least two

justifications for an uncompensated taking; (1) that the

regulation is reasonably calculated to prevent the inflic-

tion of some present or threatened harm to others, or (2)

that the in-kind benefits the regulation provides the land-

owner offset the losses that it imposes.

In this case Juno’s project denial, reaffirmed as

“final” by Zoning Commissioner Durnell, based as it was

1 In First Amendment cases the Court has shifted the bur-

den to government o. ce the person seeking relief has shown

that his/her conduct was constitutionally protected and was a

motivating factor in the government’s actions. Thereafter, the

government is required to show by a preponderance of the

evidence that it would have reached the same decision even in

the absence of the protected conduct. See Mt. Healthy City School

Dist. Board of Education v. Doyle, 429 U.S. 274, 287 (1987). The

same test is used where proof of a racially discriminatory intent

or purpose is required to show a violation of the Equal Protec-

tion Clause of the Fourteenth Amendment. See Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 270-71 (1977). Motivation normally need not be shown

in a takings case in which government action alone may be

sufficient to demonstrate that government has gone too far. See,

e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982); however one commentator has suggested that the equi-

ties inherent in property and speech parallel. Richard A. Ep-

stein, “Property, Speech and the Politics of Distrust”, 59 U. of

Chicago Law Review, 41, 59 (1992). Further, a principled standard

might be based upon Fourth Amendment jurisprudence which

protects people against unreasonable searches and seizures but

is not limited to physical invasions or trespass. Cf. Oliver v.

United States, 466 U.S. 170, 176-80 (1984).

upon a facially defective ordinance, which Juno would

not waive for almost four years, was a brick wall that

Petitioners could not breach, and should have been suffi-

cient to trigger a “takings” liability. Juno’s series of

actions to impede and delay the project constituted a

taking, warranting further review which would provide

additional guidance to property owners, government and

the lower courts in takings cases in which government

action goes too far and causes economic injury dispropor-

tionately concentrated upon the property owner.

CONCLUSION

The petitioners respectfully submit that a writ of

certiorari should be granted. In the event the Court

accepts this matter, we will respectfully request that the

decision of the Florida Fourth District Court of Appeal be

reversed and the case remanded for further proceedings

with directions.

H. Laurence Cooper, Jr.

Counsel for Petitioners

Of Counsel to Brackett, Cook,

Sned, Welsch, Hewitt, D’Angio &

Tucker, P.A.

App. 1

APPENDIX A

Aphrodite E. KARATINOS and Nicholas

E. Karatinos, Appellants,

Vv.

TOWN OF JUNO BEACH, Florida, and

Florida Department of Natural

Resources, Appellees.

No. 92-0673.

District Court of Appea! of Florida,

Fourth District.

April 14, 1993.

On Motion for Rehearing

Aug. 11, 1993.

Owners of unimproved oceanfront property sued

town and the Department of Natural Resources (DNR),

contending they were being deprived of all use of their

property as result of prohibitions against seaside build-

ing. The DNR purchased the property and was dismissed

from case. The Circuit Court, Palm Beach County, Edward

H. Fine, J., found that DNR never would have allowed

any building on the property and, thus, town ordinance

was not result of owners’ damages. Owners appealed.

The District Court of Appeal, Klein, J., held that mere

possibility that DNR might have allowed the building

project could not serve as basis reversing trial court's

finding of fact.

Affirmed.

Anstead, J., concurred specially with opinion on

denial of motion for rehearing.

App. 2

H. Laurence Cooper, Jr., West Palm Beach, for appel-

lants.

Bernard A. Conko of Cohen, Chernay, Norris, Morici,

Weinberger & Harris, North Palm Beach, for appellee-

Town of Juno Beach, Florida.

KLEIN, Judge.

The Karatinos, who owned unimproved oceanfront

property, sued the Town of Juno Beach and the Florida

Department of Natural Resources (DNR), contending

they were being deprived of all use of their property.

Their claim against DNR was for inverse condemnation,

and their claim against the town was for declaratory

relief and damages pursuant to 42 U.S.C. § 1983. In 1991

DNR purchased the property and was then dismissed

from the case. The Karatinos tried their claim for dam-

ages against the town alleging they were deprived of the

use of their property from 1982 to 1985 as a result of the

town’s wrongful refusal to allow them to build. The trial

court found against them, and we affirm.

The Karatinos purchased their property in 1958,

intending to build rental units or a small motel in the

future. The property has 209 feet of oceanfront and the

western border (abutting A1A) is approximately 200 feet

from the water’s edge.

In 1979 DNR established its Coastal Construction

Control Line in Palm Beach County, prohibiting construc-

tion east of the line unless DNR granted a permit. This

line ran approximately 20 feet east of the western border

App. 3

of the Karatinos’ property, leaving no room for develop-

ment. Adding insult to injury, the town, shortly thereaf-

ter, established a setback line, 50 feet to the west of

DNR’s Coastal Construction Control Line, which was, of

course, off the property.

In December, 1981, the Karatinos submitted an appli-

cation to the town for site plan approval showing alterna-

tive developments of from two to ten units, all of which

violated the town’s setback line. The town disapproved

for that reason. The town setback ordinance had a pro-

cedure for obtaining modification; however one of the

requirements was approval from DNR. The Karatinos

then filed an application with DNR for permission to

build over the Coastal Construction Control Line, but

DNR refused to process the application until the Kar-

atinos received approval from the town. A classic

Catch-22.

In 1983 the Karatinos filed this lawsuit. In 1984 the

Karatinos sought permission from the town to construct a

six-unit project, and in 1985 the town approved two units

for the property. In May, 1986, and again in May, 1987,

DNR formally considered and denied appellants’ applica-

tion to build on their property.

In 1991 DNR purchased the Karatinos’ property, but

the Karatinos continued their claim against the town,

claiming they were improperly deprived of all use of

their property by the town from 1982, when the town first

turned their project down, to 1985, when the town

approved two units. The town denied that it did anything

improper and, in the alternative, argued that if its actions

were improper they were not the cause of the Karatinos’

App. 4

damages. We agree with the town’s alternative argument

and therefore need not decide whether it acted properly.

Ralph Clark, a coastal engineer with DNR who

administered Florida’s coastal construction regulatory

program during the years involved here, testified that

DNR would never have permitted any building seaward

of the Coastal Construction Control Line on this property.

In the final judgment the court found as a matter of fact

that the Karatinos would never have gotten approval

from DNR to build seaward of the Coastal Construction

Control Line and that accordingly the Karatinos’ project

“was doomed, regardless of the Town’s action.”

The Karatinos acknowledge there was evidence that

DNR would never have allowed them to build, but argue

that this does not preclude them from recovering dam-

ages for a temporary taking from 1982 to 1985. They

argue that since DNR did not purchase the property until

1991, there was a possibility that DNR would have

approved their project during 1982 to 1985. While this

may have been a possibility, it cannot be the basis to

reverse findings of fact supported by competent evidence

that DNR would never have allowed anything to be built

on this property.

Affirmed.

GLICKSTEIN, C.J., and ANSTEAD, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Motion for rehearing is denied.

App. 5

GLICKSTEIN and KLEIN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, concurring specially.

I concur in the denial of rehearing.

The appellants take issue, of course, with our holding

that the trial court did not err in concluding they are

entitled to no relief for the alleged “temporary taking” of

their property by virtue of the confusion and delay cre-

ated by the town in having the state consider the appel-

lants’ attempts to build. However, the town ordinance in

question did not facially prohibit all development; rather,

it made consideration of a request for development

dependent upon the owner’s securing state approval.

Hence, there was a provision for development although it

was confusing, because it had the approval procedure

reversed from the procedure employed by the state.

However, once that was straightened out, the town per-

mitted development, whereas the state subsequently

refused any development. Appellants, of course, were

compensated by the state in a settlement.

There is no doubt that the town’s ordinance and

action delayed the owners’ attempt to get a final answer

to their request to develop. However, I would place this

delay more in the category of the “normal delays” created

by the myriad of governmental procedures mentioned by

the Supreme Court in First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 321, 107 S.Ct.

2378, 2389, 96 L.Ed.2d 250 (1987), as not giving rise to a

App. 6

temporary taking or entitlement to compensation. Obvi-

ously, not every delay in the development process attrib-

utable to the government results in a “temporary taking.”

This is true even where the delay is the “fault” of the

government. Here there was a snafu that was eventually

worked out. In reality, and in the final analysis, it was the

state’s restriction on development, both by statute and by

rule that prevented the owners from using their land, and

not the actions of the town.

App. 7

APPENDIX B

IN THE CIRCUIT COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR PALM

BEACH COUNTY.

CIVIL DIVISION.

CASE NO. CL-83-2696-AN

APHRODITE E. KARATINOS and

NICHOLAS R. KARATINOS,

Plaintiffs,

Vs.

TOWN OF JUNO BEACH,

FLORIDA, and FLORIDA

DEPARTMENT OF NATURAL

RESOURCES,

Defendants.

FINAL JUDGMENT

This is an action by the Plaintiffs against the Town for

compensation claiming that the Town temporarily

deprived them of the use of their land and seeking dam-

ages and declaratory and injunctive relief.

The land in question is a lot, aptly described as

Seadunes, Lot Number 1. In actuality it consists of a 200

foot stretch of the coastal dune and beach. The lot runs

from the top of the dune eastward to the ocean, a distance

of about 200 feet. On the top of the dune, at the property

line, is the road right of way for AlA now known as

Ocean Boulevard.

——

App. 8

The dune is an important barrier in the event of a

large hurricane or a 100 year storm. In such storms, the

dune protects the people who live to its west side. In

addition, the dune protects the beaches from erosion. In

Summer, sand is accumulated on the beach and on the

dune. In Winter, large storms wash sand away from the

beach and the dune into sand bars. The sand bars protect

the beach. And then in Summer the sand is redeposited

on the beach.

The dune is held in place by native vegetation, such

as seagrapes, seaoats and miscellaneous vines. The vege-

tation depends upon an incompletely understood micro-

biological relationship. This vegetation is essential to

preserve the integrity of the dune.

In 1979 the State of Florida, through the Department

of Natural Resources, laid its coastal construction control

line across this part of Palm Beach County. It is a line

determined by scientific analysis that sets back construc-

tion a sufficient distance from the ocean to protect the

beaches and shores.

Within the boundaries of the lot in question, this line

runs parallel to AlA roughly twenty feet inside the lot.

The lot in question runs 209 feet abutting the edge of

A1A. About 180 feet of the 200 foot east-west depth of

this lot lies inside, that is to the ocean side of the coastal

construction control line. At material times in this action

the Town of Juno Beach has had a zoning ordinance that

prohibits construction within 50 feet of the coastal con-

struction control line. In other words, on the portion of

the sand dune in question, the Town’s setback extends

ee ee eee eer ee eee

a et

a ae

App. 9

into A1A and there is no portion of the Plaintiffs’ prop-

erty that is buildable because most of it lies within the

coastal construction line and what little does not lies

within the Town’s 50 foot setback.

The present action was originally brought against the

Town and the Department of Natural Resources, however

apparently the D.N.R. has settled, and at this juncture the

action is against the Town for a temporary taking up until

the date of the final order of the Department of Natural

Resources denying any right to build inside the coastal

construction control line, the date of that order being May

1, 1987.

The Plaintiffs are seeking declaratory and injunctive

relief, and damages from the Town. The Town enacted a

comprehensive land use plan and a comprehensive zon-

ing plan in 1979. This lot was zoned RM2 which permit-

ted up to 12 units per acre. On the land use plan it was

shown as “recreational”. There was no precise zoning

classification as “recreational”. The closest was “recre-

ational and open spaces” which was limited for public

use and could not have been used by a private land

owner. One of the claims of the Plaintiffs is that until this

was corrected, which was in May of 1985, they were

temporarily deprived of the ability to develop their land.

Another claim of the Plaintiffs is that eventually they

were granted what the Town describes as a combination

variance and modification of the Town’s zoning ordi-

nance and setback requirement, but from that point the

Town only authorized the construction of two residential

units on the property, even though its zoning classifica-

tion permitted 12 units. They claim that two units were

I i hi Ne is Bi is i i el el te

App. 10

economically unfeasible, and damages arose from the

denial of their request to build six units.

For the reasons stated below the Court finds in favor

of the Town and against the Plaintiffs.

Though the evidence was disputed, the Court finds

that the evidence conclusively established that there was

no possible way that the Plaintiffs were ever going to get

approval from the State to build inside the coastal con-

struction control line. Every single plan that the Plaintiffs

submitted to the Town for construction on their land

required constructing the entire foundation on the ocean

side of the coastal construction control line. So the Plain-

tiffs’ project was doomed, regardless of the Town’s

actions.*

The Town’s actions re. the twenty foot swath, con-

trolled by the Town’s setback line, between A1A and the

coastal construction control line, had no effect on the

D.N.R. decision denying permission to the Plaintiffs to

build their project on their property.

The error on the land use maps vis a vis the zoning

ordinance (“recreational” versus MR2) had nothing to do

with the inability of the Plaintiffs to develop their land.

There was nothing in the evidence indicating that any of

the Town’s actions were in the least affected by this

*This was apparently to some extent foreseen by the Plaintiffs.

See, Defendant’s exhibit 10, and transcript of 8/19/85 town

meeting, wherein the Plaintiffs, in trying to get approval from

the Town, explain that their project is contingent on D.N.R.

approval. There is no single instance of the D.N.R. ever permit-

ting construction of entirely new buildings and foundations

inside the coastal construction control line.

———aaaEEeEeEeEeEeEeGee

a eee ee eT

ae ee ee ee

i es

App. 11

inconsistency. In fact, as soon as the error was brought to

the Town’s attention by the attorney for the Plaintiffs, the

Town took adequately prompt steps to correct the incon-

sistency.

The original site plan was unanimously turned down

by the Town in January of 1982 because it was not in

accord with setback requirements of the zoning ordi-

nances and the Plaintiffs had not obtained a variance to

submit along with that site plan. There is some dispute as

to whether what was needed was a “variance” or a “mod-

ification” but the Court under these facts considers this to

be unessential to today’s decision.

The parties raised an issue whether all remedies had

been exhausted under the Town’s Zoning Code and in

this context a distinction was made between a modifica-

tion and a variance. The Court’s decision is based on the

belief that all such remedies were exhausted regardless of

which designation is used.

A second distinction made by the parties was

whether under a modification, the Town had the author-

ity to cut the number of units it would approve from six

to two, but it did not matter whether the Plaintiffs wished

to build two units, six units, ten units or twelve units. The

evidence is clear that they stood no chance of getting

State approval.

The Town was advised by their attorney that they

either had to permit construction, buy the property or get

involved in litigation, so the Town gave up and in August

of 1985, granted a special exception from their setback

requirement, but only for two units. At that point the

App. 12

Town had relinquished its power to control the develop-

ment of two units on this property at that point became a

mere supplicant to the State, whom they implored to

deny any construction seaward of the coastal construc-

tion control line.

The D.N.R. found that construction on this lot would

be from the top of the sand dune down the ocean side

slope of the sand dune and the completed structure

would destroy the vegetation, degrade the dune, endan-

ger adjacent properties, and in a severe storm, knock out

an evacuation route. Under these circumstances, the

D.N.R. made it quite clear that there was no contingency

under which they would permit construction of a new

foundation and building on this sand dune.

Another issue raised by the Plaintiffs was that the

Town had some designs on this lot. The Court finds to the

contrary. The Town is small but already has 1 1/2 miles of

ocean frontage. Immediately next door to this property is

Loggerhead Park. Prior to 1983 when the Loggerhead

Park property was purchased by the County and turned

into Loggerhead Park, its beach was readily available to

the public. Loggerhead Park has complete beach access,

rest rooms and picnic facilities. The Town has no history

of trying to lure the public to its beaches and the Town

has had a continual history of having lots of ocean front

beach available for residents.

To the extent that the complaint and the evidence

seek to review and discredit the basis of the Town’s

denial of the Plaintiffs’ various requests for development,

these are matters not presently within this Court's juris-

diction. Such matters were quasi judicial decisions, not

’ -}

App. 13

reviewable de novo, but only reviewable by certiorari. Flor-

ida Appellate Rule, 9.030(c)(1)(c), e.g., Walgreen Co. v. Polk

County, 524 So. 2d 1119 (Fla. 2 D.C.A. 1988), Transamerican

Properties v. City of Riviera Beach, 400 So. 2d 803 (Fla. 4

D.C.A. 1981).

However, there is authority indicating the Court has

jurisdiction to hear facts de novo in declaratory judgment

suits over zoning disputes. Coral Gables Federal Savings

and Loan Association v. City of Lighthouse Point, 444 So. 2d

92 (Fla. 4 D.C.A. 1984).

In other words, the Court must declare the rights of

the parties. Therefore the Court declares that:

Section 5.120(b) of the Town’s Ordinances (50’ set-

back) is not an improper or unlawful exercise of the

Town’s police power. This regulation is not so onerous

that it in effect appropriates the property. It has no

known diminution in the investment-profit contemplated

(since the D.N.R. killed all Plaintiffs’ plans). The fact that

the Plaintiffs’ property is entirely inside the setback, is

not dispositive. There is a variance or modification pro-

cedure and the regulation when viewed in light of its

purpose, its generic effect and economic impact, is not an

invalid exercise of police power. E.g., Williamson Co.

Regional Planning v. Hamilton Bank, 105 S. Ct. 3108 (1985),

Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1 D.C.A.

1990), McNulty v. Town of Indialantic, 727 F. Supp. 604

(M.D. Fla. 1989).

The application of the ordinance in this case does not

amount to a taking or a misuse of police power.

App. 14

As to Count One: the Plaintiffs’ request for declara-

tory, and supplemental relief is denied.

As to Count Two: the Plaintiffs’ request for dam-

ages is denied.

Therefore it is the Final Judgment of the Court that

the Plaintiffs, Aphrodite Karatinos and Nicholas E. Kar-

atinos, shall take nothing by this action from the Defen-

dant, Town of Juno Beach, Florida.

ORDERED at West Palm Beach, Florida, this 7 day of

January, 1992.

/s/ Edward Fine

EDWARD FINE

Circuit Judge

Copies furnished:

H. L. Cooper, Jr., Esq.

Post Office Box 3746

West Palm Beach, FL 33402

Bernard A. Conko, Esq.

Post Office Box 1629

West Palm Beach, FL 33402

Dana Wiehle, Asst. Gen. Counsel

Dept. of Natural Resources

3900 Commonwealth Blvd.

Mail Station 35

Tallahassee, FL 32399

John W. Costigan, Esq.

Dept. of Natural Resources

3900 Commonwealth Blvd.

Mail Station 35

Tallahassee, FL 32399

App. 15

APPENDIX C

SUPREME COURT OF FLORIDA

FRIDAY, JANUARY 21, 1994

APHRODITE E.

KARATINOS, ET AL.,

Petiti CASE NO. 82,385

etitioners,

District Court of Appeal,

4th District - No. 92-0673

TOWN OF JUNO BEACH,

FLORIDA, ET AL.,

Respondents.

hha abbann nna LELLLLLLLL LTT eT

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Article V,

Section 3(b), Florida Constitution (1980), and the court

having determined that it should decline to accept juris-

diction, it is ordered that the Petition for Review is

denied.

No Motion for Rehearing will be entertained by the

court. See Fla. R. App. P. 9.330(d).

OVERTON, MCDONALD, GRIMES, KOGAN and HARD-

ING, JJ., concur

A True Copy

TEST:

Sid J. White

Clerk, Supreme Court

By: /s/ Betsey Hill

Deputy Clerk

App. 16

[SEAL]

BAH

cc: Hon. Marilyn Beuttenmuller, Clerk

Hon. Edward H. Fine, Judge

Hon. Dorothy H. Wilken, Clerk

Mr. H. Lawrence Cooper, Jr.

Mr. Bernard A. Conko

Ms. Dana Wiehle

Mr. John W. Costigan

App. 17

APPENDIX D

THE TOWN OF JUNO BEACH

841 OCEAN DRIVE - PHONE 626-1122

PALM BEACH COUNTY

FLORIDA 33408

[LOGO]

Wo) Geer errr ere 26° - 55' N

Fe oe ls Per err er rr rrr ree 80° - 4. W

AVERAGE TEMPERATURE ............... 75°

SUN SHINES 265 DAYS PER YEAR

November 15, 1982

Palm Beach Design Group, Inc.

2560 RCA Bivd., Suite 106

Palm Beach Gardens, Fla. 33410

Re: Karatinos Property

Attention: R.M. Arsenicos

Dear Mr. Arsenicos:

After our meeting on November 5, 1982, I requested

an opinion from the Town Attorney regarding my letter

to you dated October 17, 1982. Mr. Adams opinion is that

the Juno Beach Commissioners denial of the Karatinos

request on January 13, 1982 is final and not subject to

appeal under section 12.00 of Juno Beach Ordinance No.

207.

Your truly,

/s/ Don D. Durnell

Don D. Durnell

Commissioner of Planning &

Zoning

Juno Beach, Fla.

DDD/fmp

App. 18

APPENDIX E

RESOLUTION NO. 85-10

A RESOLUTION OF THE TOWN OF JUNO

BEACH. FLORIDA, EXPRESSING ITS OPPOSI-

TION TO ANY CONSTRUCTION ON THE

KARATINOS PROPERTY, WHICH PROPERTY

LIES EAST OF THE COASTAL CONSTRUC-

TION CONTROL LINE; SETTING FORTH REA-

SONS FOR APPROVING SPECIAL EXCEPTION

AND MODIFICATION; REQUESTING THE

STATE OF FLORIDA TO DEFEND ITS

COASTAL CONSTRUCTION CONTROL LINE;

DIRECTING THAT A COPY OF THIS RESOLU-

TION BE FORWARDED TO THE APPROPRI-

ATE AGENCIES OF THE STATE OF FLORIDA;

PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, there is pending in the Circuit Court of

Palm Beach County, Florida, a suit by Aphrodite Kar-

atinos against the Town of Juno Beach and the State of

Florida, Department of Natural Resources, et al. Case No.

83-2696 CA(L)B; and

WHEREAS, said lawsuit alleges, in part, that the

governmental actions of the Town of Juno Beach and the

State of Florida have the effect of denying Mrs. Karatinos

any beneficial use of the property in question and there-

fore constitute an inverse condemnation; and

WHEREAS, the State of Florida adopted a “Coastal

Construction Control Line” in an effort to discourage new

construction between the ocean and said “control line”;

and

App. 19

WHEREAS, the Town of Juno Beach in its Compre-

hensive Plan originally assigned to the Karatinos prop-

erty a designation which would have prevented

construction eastward of the State’s Coastal Construction

Control Line; and

WHEREAS, the Town Attorney advised the Town of

Juno Beach that the legal defense of the State’s Coastal

Construction Control Line would be very costly and the

result in court could require the Town of Juno Beach to

purchase the Karatinos property at a price to be deter-

mined by a jury; and

WHEREAS, the Town Commission of Juno Beach

determined that the Town did not have adequate finan-

cial resources to defend said lawsuit or to purchase the

Karatinos property should the Karatinos lawsuit be suc-

cessful; and

WHEREAS, the Town of Juno Beach on June 12, 1985

revised its Comprehensive Plan so that the Karatinos

property could be used for residential purposes, even

though it is located east of the Coastal Construction Con-

trol Line; and

WHEREAS, the Town of Juno Beach does not feel that

the proposed Karatinos development should be approved

nor does it believe that the development would be in the

best interest of the Town of Juno Beach; and

WHEREAS, the Town of Juno Beach on August 14,

1985 granted the Karatinos a special exception and mod-

ification to the set back line referred to above only

because of the existing litigation and the Town’s lack of

App. 20

financial resources to defend said litigation and to pur-

chase said property should inverse condemnation be

granted.

NOW, THEREFORE, BE IT RESOLVED BY THE

TOWN COMMISSION OF THE TOWN OF JUNO

BEACH, PALM BEACH COUNTY, FLORIDA, that:

Section 1. The Town of Juno Beach does hereby

express its opposition to any construction on the Kar-

atinos property, which property lies east of the Coastal

Construction Control line and which property may not be

safe for habitation due to its location and the likelihood

of severe flooding in any major hurricane.

Section 2. The Town of Juno Beach granted the var-

ious approvals referred to above only because of the

existing litigation and its lack of financial resources to

defend said litigation and to purchase said property

should inverse condemnation be granted; said approvals

were not granted because the Town “approved” of the

proposed Karatinos development or believed to be in the

best interest of the Town of Juno Beach.

Section 3. That this Resolution be forwarded to the

appropriate agencies of the State of Florida in the hope

that the State will choose to defend its own Coastal

Construction Control line, since the State has the financial

resources which the Town lacks.

Section 4. This Resolution shall take effect imme-

diately upon its passage.

App. 21

PASSED AND ADOPTED this 14th day of August ,

1985.

APPROVED:

/s/ Kollner

Mayor

SEAL

ATTEST:

/s/ Gail F. Nelson

Town Clerk

App. 22

APPENDIX F

IN THE CIRCUIT COURT OF THE FIFTEENTH

JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR PALM BEACH COUNTY

CIVIL ACTION

CASE NO. 83-2696 CA (L) N

APHRODITE E. KARATINOS and

NICHOLAS E. KARATINOS

Plaintiffs

VS.

]

TOWN OF JUNO BEACH,

FLORIDA, and FLORIDA

DEPARTMENT OF NATURAL !

RESOURCES |

]

Defendants

AMENDED SUPPLEMENTAL COMPLAINT

Plaintiffs, APHRODITE E. KARATINOS and

NICHOLAS E. KARATINOS, by and through their under-

signed attorney, file this their Amended Supplemental

Complaint against Defendants, TOWN OF JUNO BEACH,

FLORIDA, and FLORIDA DEPARTMENT OF NATURAL

RESOURCES, and allege:

GENERAL ALLEGATIONS

1) These General Allegations are incorporated in

and form a part of each of the counts hereinafter set forth.

2) Plaintiff APHRODITE E. KARATINOS is a resi-

dent of the State of Florida and Plaintiff NICHOLAS E.

KARATINOS is a resident of the State of Maryland. At all

SSS

App. 23

material times herein, Plaintiffs have owned the follow-

ing described property located within the municipal

limits of the Defendant TOWN OF JUNO BEACH, Palm

Beach County, Florida, to-wit:

Lot 1, less the South 5 feet thereof, Sea Dunes, a

subdivision to the Town of Juno Beach, Florida,

according to the plat thereof on file in the office

of the Clerk of the Circuit Court, Palm Beach

County, Florida, as in Plat Book 25, Page 20. (Sea

Dunes being a replat of the South 200 feet of the

North 1050 feet of Government Lot 5, Section 21,

Township 41 South, Range 43 East, Palm Beach

County, Florida.)

TOGETHER with all riparian rights appertain-

ing thereto, TOGETHER with an easement over

the North 5 feet of the South 10 feet of the East

39 feet of Lot 20, Sea Dunes, for the placing of a

well, pump, and necessary pipes for water sup-

ply to Lot 1, Sea Dunes, which easement runs to

the grantees herein, or their successors in title.

3) Defendant, TOWN OF JUNO BEACH, is a munic-

ipality duly organized and existing under the laws of the

State of Florida and located in the County of Palm Beach.

Defendant, FLORIDA DEPARTMENT OF NATURAL

RESOURCES, is a department within the Executive

Branch of the State Government of Florida.

4) Plaintiff, APHRODITE E. KARATINOS, and her

deceased husband, EMANUEL N. KARATINOS, pur-

chased the above-described property, which borders the

waters of the Atlantic Ocean, in February of 1958. The

property was owned by them as tenants by the entireties

from 1958 until the death of EMANUEL N. KARATINOS

App. 24

in 1973. The property was solely in the name of APHRO-

DITE E. KARATINOS until February 1976 when she con-

veyed an undivided one-half interest to her son, Plaintiff,

NICHOLAS E. KARATINOS. Plaintiffs have not built any

structure on the property and it is now vacant land. The

property is within a residential multifamily zoning dis-

trict.

5) In 1979, Defendant, TOWN OF JUNO BEACH,

adopted a Comprehensive Zoning Ordinance, Ordinance

No. 207. Sec. 5.120 thereof prohibits erection of any struc-

ture eastwardly of a point west of the Coastal Construc-

tion Control Line without approval of the Town

Commission. A copy of Sec. 5.120 is attached to the

Complaint in this cause marked EXHIBIT “B”. Sec. 5.120

of the Comprehensive Zoning Ordinance has been in full

force and effect at all times since 1979 and has not been

amended or repealed in any manner affecting Plaintiffs’

above-described property.

6) Also in 1979 Defendant, TOWN OF JUNO

BEACH, adopted a Comprehensive Plan. In that Compre-

hensive Plan, the property of the Plaintiffs was desig-

nated on the proposed Land Use Map (Exhibit 3.1.1) as

recreation and shown on the Recreation and Open Space

Map (Exhibit 10.1.1) as open space, both of which desig-

nations are inconsistent with any economic use of Plain-

tiffs’ property. Sec. 10.6 of the plan sets a specific

objective:

“To protect the existing open space along the

beaches . . . from any encroachment from devel-

opment”,

App. 25

which likewise deprives the property of any economic

use.

7) On December 21, 1981, Plaintiffs applied to Juno

Beach Planning and Zoning Board for approval of a site

plan which would have permitted construction of two

residential units on the property.

8) On January 4, 1982, the Juno Beach Planning and

Zoning Board recommended to the Juno Beach Town

Commission that the site plan be denied because “It is not

in accordance with the Comprehensive Zoning Ordi-

nance, reference Paragraph 5.120.” See copy of “Recom-

mendation to Commission” from Juno Beach Planning

and Zoning Board dated January 4, 1982, attached to the

Complaint herein marked EXHIBIT “A”.

9) On January 13, 1982, the Juno Beach Town Com-

mission accepted the Planning and Zoning Board’s rec-

ommendation and denied approval of the project.

10) On or about February 12, 1982, Plaintiffs,

through their authorized agent, made application to the

Defendant, FLORIDA DEPARTMENT OF NATURAL

RESOURCES, in order to obtain a permit to construct on

their property seaward of the established Coastal Con-

struction Control Line.

11) After some correspondence, Defendant, FLOR-

IDA DEPARTMENT OF NATURAL RESOURCES, on or

about June 3, 1982 refused to process the application

citing Section 16 B 33.08(1)(c), Florida Administrative

Code, which states in pertinent part as follows:

“ .. . an application form must contain...

written evidence, provided by the appropriate

App. 26

local governmental agency having jurisdiction

over the activity, that the proposed activity, as

submitted to the Bureau does not contravene

local setback requirements or zoning or building

codes.”

12) As a result of the Defendant FLORIDA

DEPARTMENT OF NATURAL RESOURCES’ refusal to

process Plaintiffs’ application, the Plaintiffs were pre-

cluded by Section 5.120(c) of the Town of Juno Beach

Comprehensive Zoning Ordinance from petitioning the

Juno Beach Town Commission for a modification of Sec-

tion 5.120(b) by virtue of the provisions of Sec. 5.120(c)(1)

which requires that the Defendant, FLORIDA DEPART-

MENT OF NATURAL RESOURCES, Bureau of Beaches

and Shores, first approve the modification.

13) After extended proceedings more specifically

described hereinafter in COUNT I, the Town of Juno

Beach, on August 14, 1985, granted a special exception

and modification to the setback line authorizing construc-

tion of two dwelling units and passed Resolution 85-10, a

copy of which is attached to the Supplemental Complaint

in this cause marked EXHIBIT “C”, by virtue of which the

Plaintiffs could again petition the Defendant, FLORIDA

DEPARTMENT OF NATURAL RESOURCES, for a permit

to build seaward of the Coastal Construction Control

Line.

14) Finally, on March 13, 1986, Defendant, FLOR-

IDA DEPARTMENT OF NATURAL RESOURCES,

acknowledged that Plaintiffs’ application for a permit to

build east of the Coastal Construction Control Line was

complete and on May 20, 1986 denied it. Plaintiffs there-

after, pursuant to the provisions of Chap. 120, Fla. Stat.,

App. 27

petitioned for a formal hearing and on February 19, 1987

the Hearing Officer issued his Recommended Order

including Findings of Fact, Conclusions of Law and Reco-

mendation, [sic] and on May 1, 1987, the Defendant,

FLORIDA DEPARTMENT OF NATURAL RESOURCES,

entered its Final Order denying Petitioners’ application.

The Final Order constitutes final agency action.

15)(a) Due to the location of the Coastal Construc-

tion Control Line upon the Plaintiffs’ above-described

property there is no beneficial use to which the property

can be put if construction seaward of the Coastal Con-

struction Control Line is prohibited. (b) Due to the

restriction of the Town of Juno Beach setback require-

ments as to Plaintiffs’ property there is no beneficial use

to which the property can be put if construction seaward

of the setback line is prohibited.

COUNT I

16) This is an action for declaratory relief pursuant

to Florida Statute 86.011 et seq. and for injunctive relief.

17) The General Allegations contained in Para-

graphs 1 through 15 are realleged and included herein.

18) Sec. 5.120 of the Town of Juno Beach Compre-

hensive Zoning Ordinance is arbitrary and capricious and

an improper exercise of police power in that the setback

line specified in Sec. 5.120(b) constitutes an unreasonable

and overly burdensome requirement which has no rea-

sonable relation to the purpose of the section, to-wit: “To

prevent deterioration of the vegetation or structural qual-

ity of the coastal dune.”

App. 28

19) As applied to Plaintiffs’ property, Sec. 5.120(b)

amounts to an improper and unlawful exercise of the

police power delegated to the Town of Juno Beach in that

the language of said section prohibits Plaintiffs from

making any use or [sic] their property for any purpose.

20) Plaintiffs presently want to improve their prop-

erty above-described, and have submitted detailed plans

with an application for a permit therefor to the Defendant

Town of Juno Beach for the construction of a six-unit

townhouse residential structure which complies in all

other respects with the building codes and zoning ordi-

nances of the Town of Juno Beach; however, the said

Defendant Town has refused to permit the development

as proposed by the Plaintiffs due to the provisions of Sec.

5.120 of the Comprehensive Zoning Ordinance though it

has indicated a willingness to allow generally the con-

struction of a two-unit residential structure.

21) The reasons given by the Defendant Town for

refusing Plaintiffs’ application and plans for the construc-

tion of a six-unit structure but willingness to allow a two-

unit structure, as evidenced by the Resolution, copy of

which is attached to the Supplemental Complaint marked

EXHIBIT “C”, are legally not supportable and amount to

an improper, arbitrary, capricious, and discriminatory

exercise of the police power, the propriety of which is not

fairly debatable.

22) Pursuant to the provisions of the zoning ordi-

nances of the Defendant Town of Juno Beach the Plaintiffs

would be entitled to construct up to a total of ten dwell-

ing units upon their said property and the proposed

construction of six said units is a reasonable, feasible and

App. 29

proper use of Plaintiffs’ property in full compliance with

all municipal zoning ordinances, building codes and

other rules and regulations with the sole exception of the

setback provisions of Section 5.120(b) of the Comprehen-

sive Zoning Ordinance.

23) Since the application of the setback require-

ments of section 5.120(b) of the Comprehensive Zoning

Code would constitute an unlawful taking of Plaintiffs’

property without just compensation and without due pro-

cess of law, contrary to the Federal and State Constitu-

tions, the conditioning of a permit to construct at

variance from the requirements of the setback line upon a

reduction from six to two dwelling units for the reasons

given by the Defendant Town are not supportable upon

any theory of law.

24) A bona fide justiciable dispute exists between

the Plaintiffs and the Defendant TOWN OF JUNO

BEACH as to the right of said Town to reduce the number

of units to be permitted upon the property of the Plain-

tiffs from six to two and Plaintiffs are in doubt as to the

constitutionality of the application of Section 5.120 of the

Comprehensive Zoning Ordinance of the Town of June

Beach in order to prevent or restrict construction upon

their property.

WHEREFORE, Plaintiffs pray that this Court enter its

judgment as follows:

(A) Declaring that Section 5.120 of the Comprehen-

sive Zoning Ordinances of the Defendant TOWN OF

JUNO BEACH may not constitutionally be applied to

prohibit construction upon Plaintiffs’ property.

Ann. 2

(B) By way of supplemental relief, enjoining the

enforcement of Section 5.120 as applied to Plaintiffs’

property.

BEACH may not lawfully condition a permit to construct

upon Plaintiffs’ property upon a limitation of such con-

struction to two dwelling units.

(D) By way of supplemental relief, enjoining the

Defendant TOWN OF JUNO BEACH from imposing a

two-dwelling unit limitation upon any construction upon

Plaintiffs’ property.

(E) Awarding to the Plaintiffs such other and fur-

ther relief as is just in the premises.

Plaintiffs request trial by jury of all issves triable of

right by jury in this cause.

COUNT II

25) This is an action for damages for deprivation of

civil rights in violation of Title 42 U.S.C. Section 1983.

26) Plaintiffs reallege the allegations contained in

the General Allegations Paragraphs 1 through 15.

27) On January 13, 1982 when the Juno Beach Town

Commission denied approval of the Plaintiffs’ project, it

was acting in an executive, administrative and quasi judi-

cial capacity.

28) The decision of the Town Commission of the

Town of Juno Beach on January 13, 1982 to deny a mod-

ification or variance was made under color of title within

the meaning of 42 U.S.C. Section 1983, and had the effect

App. 31

of depriving Plaintiffs of their property without just com-

pensation and without due process of law in violation of

the Fifth and Fourteenth Amendments of the Constitution

of the United States of America and Section 9, Article I,

and Section 6, Article X, of the Constitution of the State of

Florida.

29) The described actions of the Town Commission

of the TOWN OF JUNO BEACH denied the Plaintiffs any

economically viable use of their property and substan-

tially ousted the Plaintiffs and deprived them of all bene-

ficial enjoyment of their property.

30) The Comprehensive Plan of the Town of Juno

Beach as described in Paragraph 5 dictated that the Plain-

tiffs’ property be reserved for public open space and

recreation use.

31) Florida Statute, Chap. 163.3194(3)(a) provides

that the restrictions promulgated by a comprehensive

plan shall not take private property without due process

of law and the payment of just compensation.

32) The provisions of the Comprehensive Plan

described above constituted a confiscation of Plaintiffs’

property and constituted a taking.

33) The provision of the Comprehensive Zoning

Ordinance, Section 5.120, has also taken Plaintiff's private

property without due process of law and the payment of

just compensation.

34) Defendant TOWN OF JUNO BEACH should

have known since the adoption of its Comprehensive

Plan and Comprehensive Zoning Ordinance in 1979, and

affirmatively knew since Plaintiffs original application in

App. 32

1981 and its denial in 1982 that its Comprehensive Plan

and its Comprehensive Zoning Ordinance prevented any

economically viable use of Plaintiffs’ property and that its

Comprehensive Zoning Ordinance as written and as ini-

tially applied by the Town prevented any modification of

its coastal setback.

35) Despite a realistic opportunity and reasonable

time withing [sic] which to review its Comprehensive

Plan and Comprehensive Zoning Ordinance vis-a-vis the

Plaintiffs’ property, and correct the inequity, the Defen-

dant TOWN OF JUNO BEACH did not amend its Com-

prehensive Plan until the Plaintiffs brought this action

and filed an application with the Town requesting such

amendment after employing architects, zoning consul-

tants, and attorneys, all at great expense to the Plaintiffs,

and did not make such amendment to its Comprehensive

Plan, correcting its error until June 12, 1985.

36) The failure to correct these constitutional viola-

tions has resulted in a temporary taking of the Plaintiffs’

property as well as a permanent deprivation of their right

to use the property in a manner otherwise permitted by

the now amended Comprehensive Plan and the Zoning

Ordinances of Defendant Town, all in violation of Plain-

tiffs’ constitutionally protected civil property rights, all to i

the damage of the Plaintiffs in an amount in excess of |

$5,000.00. |

a ereeeenteen aee

37) By virtue of these land use applications and this

suit, Plaintiffs have requested the Defendant TOWN OF

JUNO BEACH to pay them just compensation for the

taking of their property, but Defendant TOWN has failed

and refused to do so.

aan

App. 33

38) Plaintiffs have retained their undersigned attor-

ney to bring this action and they have agreed to pay said

attorney a reasonable fee for legal services rendered

herein. In addition to the foregoing described experts in

connection with Plaintiffs’ applications to the TOWN OF

JUNO BEACH to construct a multifamily dwelling upon

the subject property, Plaintiffs have also retained engi-

neering firms, a real estate appraiser and economic con-

sultant to prepare plans, specifications, engineering

reports and other data required in connection therewith

and have and will pay substantial sums for al! of such

services.

WHEREFORE, Plaintiffs pray that this Court enter

judgment against Defendant TOWN OF JUNO BEACH,

for an amount in excess of $5,000.00 for a temporary

taking and permanent impairment of property in the

amount of the fair market value of Plaintiffs’ loss of use

of their property in the past and in the future as a result

of the actions of the Defendant TOWN, together with

their costs and reasonable attorney’s fees as authorized

by 42 U.S.C. Section 1983, and request trial of this cause

by jury.

COUNT III

39) This is an action for damages in inverse con-

demnation.

40) Plaintiffs reallege the allegations contained in

the General Allegations Paragraphs 1 through 15.

—= .

App. 34

41) Defendant FLORIDA DEPARTMENT OF NATU-

RAL RESOURCES is a department within the Executive

Branch of the Government of the State of Florida.

42) Defendant FLORIDA DEPARTMENT OF NATU-

RAL RESOURCES is an agency of the State of Florida and

has the power of eminent domain.

43) The establishment of the Coastal Construction

Control Line and refusal of the Defendant FLORIDA

DEPARTMENT OF NATURAL RESOURCES to issue a

permit to the Plaintiffs to build on their property seaward

of the Coastal Construction Control Line constitutes an

unlawful taking of Plaintiffs’ property without just com-

pensation contrary to the provisions of the Fifth and

Fourteenth Amendments to the United States Constitu-

tion and Article X, Section 6, of the Constitution of the

State of Florida.

44) That the taking of the Plaintiffs’ property as

aforesaid is for the stated public purpose of preserving

the beaches and dune system along the coasts of the State

of Florida.

45) Plaintiffs have been required to employ their

undersigned attorney in order to protect their rights in

the premises and have agreed to pay a reasonable fee for

his services, and have also been required to retain archi-

tectural, coastal engineering, structural engineering, zon-

ing, appraisal and economic experts and consultants and

will be required to retain additional experts in prepara-

tion for the trial of this cause.

App. 35

WHEREFORE, Plaintiffs pray that this Court enter its

judgment declaring an unconstitutional taking of Plain-

tiffs’ property without just compensation and awarding

damages to the Plaintiffs in an amount in excess of

$5,000.00, severance damages, if applicable, damages for

the period of time Plaintiffs have been wrongfully

deprived of the use of their property, plus their reason-

able attorney’s fees and costs, plus such other and further

relief as the Court may deem just in the premises.

Plaintiffs request trial of this cause by jury.

I hereby certify that copy hereof has been furnished

BERNARD A. CONKO, ESQ., Gibson & Adams, P. O. Box

1629, West Palm Beach, FL 33402, DEAN C.

KOWALCHYK, ESQ., Assistant Attorney General, the

Capitol, Suite LL04, Tallahassee, FL 32399, and ANDREW

S. GRAYSON, ESQ., Assistant General Counsel, Depart-

ment of Natural Resources, 3900 Commonwealth Blvd,

Tallahasse, FL 32302, by mail, this 3 day of June 1987.

H. LAURENCE COOPER, JR.

8th Fl — Clearlake Plaza

500 Australian Avenue

West Palm Beach, FL 33401

Ph. 305/655-8131

Fla. Bar No. 015492

By /s/ H. L. Cooper, Jr.

Attorney for Plaintiffs

App. 36

APPENDIX G

CONSTITUTIONAL, STATUTORY AND

ADMINISTRATIVE PROVISIONS INVOLVED

Section 161.041, Florida Statutes (1979) provides:

If any person, . . . shall desire to make any

coastal construction . . . a coastal construction

permit must be obtained from the Department

of Natural Resources [DNR] prior to the com-

mencement of such work.

Section 161.053(2), Florida Statutes (1979) provides:

Coastal construction control lines shall be estab-

lished by the department [DNR] . . . necessary

for the protection of upland properties and the

control of beach erosion.

Section 161.053(4)(b), Florida Statutes (1979) provides:

The Department [DNR] shall not contravene set-

back requirements or zoning or building codes

established by a county or municipality which

are equal to, or more strict than, those require-

ments provided herein.

Section 161.053(8) and (10), Florida Statutes (1979)

provide:

(8) The Department may by regulation exempt

specifically described portions of the coastline

from the provisions of this section when in its

judgement such portions of coastline because of

their nature are not subject to erosion of a sub-

stantially damaging effect to the public.

(10) The coastal construction control require-

ments ... shall not apply to any modification,

maintenance, or repair to any existing structure

within limits of the existing foundation which

App. 37

does not require, involve, or include any addi-

tions to, or modification of, the existing founda-

tion of that structure... .

5. Section 16B-33.08(1)(c), Florida Administrative Code

provides that an application for a permit from the

DNR must contain:

... written evidence, provided by the appropri-

ate local governmental agency having jurisdic-

tion over the activity, that the proposed activity

as submitted to the Bureau [DNR] does not con-

travene local setback requirements or zoning or

building codes.

6. Section 5.120 (1979) of the Town of Juno Beach Zoning

Code provides:

Protection of Coastal Ridge. It is the intent of this

section of this ordinance to prevent the deterio-

ration of the vegetation or structural quality of

the coastal dune as it occurs in the Town of Juno

Beach. Therefore:

a. No soil, sand, rock or vegetation shall

be east of the Coastal Construction Control

Line unless otherwise permitted by this sec-

tion.

b. No wall, fence or other structure shall

be erected eastwardly of a point fifty (50)

feet west of the Coastal Construction Con-

trol Line except as otherwise permitted by

this section.

c. Modifications to Sections 5.120a and

5.120b may be granted only by the Town

Commission. Prior to hearing by the Town

Commission the following conditions shall

be met:

App. 38

(1) approval of the requested mod-

ification by the Florida Bureau of

Beaches and Shores [DNR];

(2) review and approval by the Plan-

ning and Zoning Board;

(3) public hearing with due public

notice as provided for in Chapter 163

F.S. for all zoning actions.

7. 42 U.S.C. Sec. 1983 (1988) states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof 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 proper proceeding for redress.

8. Article V of the United States Constitution provides

in relevant part:

[P]rivate property [shall not] be taken for public

use, without just compensation.

9. Article XIV of the United States Constitution provides

in relevant part:

... No State shall . . . deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

———— ==

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.