FL Appeals Court Finds Developer Who Sold Its Property During Its Lawsuit Was No Longer a “Property Owner” Entitled to Relief Under the Private Property Rights Protection Act

This post was authored by Matthew Loescher, Esq.

Over the past several decades, Edward Dean and others began buying contiguous two parcels of land on Pine Island in Lee County, Florida, “for farming and eventual sale for residences.” Much of the land was zoned for agricultural use and included a “Rural” future land use designation that allowed a residential density of one dwelling unit per acre (1 du/1 acre) under the Lee County Comprehensive Plan. In 2003, Lee County changed the “Rural” designation to “Coastal Rural” – decreasing the density to one dwelling unit per every ten acres. In 2010, Mr. Dean and Gary Wishnatzki formed Dean Wish and submitted a development application to Lee County seeking an administrative increase in the standard maximum density for the “Coastal Rural” lands and for a permit for 336 dwelling units over its 640 acres. In 2015, Lee County’s Zoning Division responded that it was not authorized to administratively approve the application, and suggested that Dean Wish “submit an application for a planned development consistent with the Land Development Code or an appropriate amendment to the Lee Plan.” In 2016, Lee County amended the Plan, setting the density of the “Coastal Rural” lands to one dwelling unit per 2.7 acres. Dean Wish sold the property “as is” at auction allegedly due to lack of market interest, litigation costs, and Mr. Dean’s retirement, increasing age, and medical expenses. The sales contract specified that Dean Wish retained all rights to monetary relief in the pending lawsuit. The trial court ultimately found Dean Wish’s appraisal valid because it included only property that it owned, and Dean Wish only alleged damages stemming from “the loss in residential density of its Rural/Coastal Rural property”, and Dean Wish appealed.

On appeal, Lee County claimed that the trial court was correct in finding that the Act’s plain language “affords recovery only to the ‘property owner’ as defined in the Act, which requires the claimant to retain legal title to the subject property until the case is concluded.” Lee County further contended that Dean Wish’s post hoc retention of rights to money did not amount to an equitable or legal title for it to be a “property owner” under the Act. Upon review of the Act, the court found the Act did not use a tense or terms that allows a claimant, who held legal title in the past, when the lawsuit was filed or when the property was burdened, to obtain relief. Moreover, the court determined the amendment to the Act did not apply retroactively because the legislature did not express a clear intent to do so. As the trial court correctly interpreted the Act’s plain language, the court held Dean Wish’s argument about a judicial taking also failed, since Claims under the Act were for government actions that did not amount to constitutional takings.

Dean Wish, LLC v. Lee County, 326 So.3d 840 (2021)