Opinion
No. 1D00-2487.
Opinion filed May 15, 2001. Withdrawn March 8. 2002.
An appeal from the Circuit Court for Okaloosa County. G. Robert Barron, Judge.
Accordingly, the order dismissing the complaint with prejudice is Affirmed.
Robert A. Emmanuel of Emmanuel, Sheppard Condon, Pensacola, for Appellant.
Mark N. Miller of Lane, Trohn, Bertrand Vreeland, P.A., Lakeland; and J. Jerome Miller of Miller Associates, Destin, for Appellee.
Lamar Texas Limited Partnership (Lamar) appeals a final order dismissing, with prejudice, its complaint challenging a sign ordinance enacted by the City of Fort Walton Beach, the appellee, as an unlawful taking of Lamar's property. The trial court ruled the complaint was barred by the applicable statute of limitations and, because no amendment could be offered to cure this procedural bar, the trial court denied leave to amend the complaint. We affirm.
In 1988, the City of Fort Walton Beach (the City) enacted an ordinance by which it prohibited billboards located on real property not owned by the billboard owner. The ordinance provided that all signs were required to conform to the ordinance by January 1, 1999. The ordinance made no distinction between signs located along an interstate highway or a federal highway and those which were located elsewhere. Lamar owns several leaseholds for signs in Fort Walton County, some of which are located along an interstate highway or a federal highway. On November 17, 1999, the City served a notice of violation on Lamar pursuant to the ordinance.
In January 2000, Lamar filed suit against the City seeking declaratory and injunctive relief and damages for inverse condemnation and tortious interference with a contractual relationship. After an amended complaint was filed, the City moved to dismiss on several grounds, including the ground that the action was barred by the applicable four-year statute of limitations. Following a hearing, the trial court entered an order dismissing the amended complaint with prejudice pursuant to the statute of limitations. See § 95.11(3), Florida Statutes (1999). An ore tenus motion filed by Lamar for leave to amend was denied. In dismissing the complaint, the trial court ruled that Lamar's causes of action accrued in 1988 upon the enactment of the City's sign ordinance, citing as authorityNational Adver. Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991) andLamar Adver. of Mobile v. City of Lakeland, 980 F. Supp. 1455 (M.D.Fla. 1997).
Under the statute of limitations, "[a] cause of action accrues when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. (1999). The issue of first impression for Florida appellate courts presented by the instant case is when Lamar's causes of action challenging the City's sign ordinance accrued.
In Raleigh, an outdoor advertising company brought suit in federal court challenging a 1983 ordinance of the City of Raleigh, North Carolina, which restricted off-premises outdoor advertising signs, on the ground that it constituted an unconstitutional taking of the company's property. The Federal District Court found the suit to be barred by the applicable North Carolina statute of limitations, ruling that the taking claim accrued upon the enactment of the ordinance. The Fourth Circuit Court of Appeals agreed, reasoning that in determining whether a property interest has been taken by a government regulation "[i]nterference with the primary uses of a property is the touchstone of the analysis."Raleigh, 947 F.2d at 1163. Accordingly, the court held that the sign owner's "cause of action arose when the ordinance was enacted because it was then, if at all, that [the sign owner] suffered the regulatory interference with the primary uses of the property." Id. The court explained that "[i]mmediately upon enactment, the 1983 ordinance interfered in a clear, concrete fashion with the property's primary use . . . by mandating that this use change or cease within five years." Id.
In Lakeland, the plaintiffs brought an action challenging a sign ordinance enacted by the City of Lakeland, Florida. Plaintiffs sought declaratory judgment and injunctive relief alleging the suppression of protected speech in violation of the First and Fourteenth Amendments of the United States Constitution and a regulatory taking in violation of the Fifth and Fourteen Amendments. The Federal District Court dismissed the claims for regulatory taking under Florida's four-year statute of limitations, section 95.11(3), Florida Statutes (1995), ruling that the plaintiff's claim accrued upon enactment of the sign ordinance. Lakeland, 980 F. Supp. At 1461-62. As the court explained:
A Fifth Amendment regulatory taking claim accrues when state authorities make a final determination on the status of the subject of the property affected by the ordinance. Here, Plaintiffs' cause of action accrued when Defendants took final action changing the status of Plaintiffs' property by passing a new zoning ordinance. As such, since Plaintiffs' taking claim accrued and became ripe at the time the 1990 Ordinance was enacted, Plaintiffs' action is barred by the statute of limitations.
Id. (citations omitted).
Lamar seeks to distinguish Raleigh and Lakeland. Lamar notes that section 479.15, Florida Statutes (1999), prohibits municipalities from requiring removal of lawfully erected signs located along the interstate or federal-aid primary highway system without first paying just compensation for such removal. Lamar argues that, as a result of this statutory provision, it did not have reason to suspect that the sign ordinance would be applied to its signs located along the interstate highway and, thus, it was not until the issuance of the notice of violation that it was put on notice as to the applicability of the sign ordinance. Therefore, Lamar contends that, for the signs at issue located along interstate highways, the cause of action accrued and the statute of limitations commenced running only upon the issuance of the notice of violation.
We cannot agree with Lamar's attempt to distinguish Raleigh andLakeland. Here, the City's ordinance does not treat signs differently based upon the location of the sign. All signs, wherever located, are regulated in the same manner. Further, nothing in section 479.15(2) or the Federal Highway Beautification Act, 23 U.S.C. § 131, would cause owners of signs located along an interstate highway to reasonably conclude that the City's ordinance was not applicable to the property interests in their signs. Thus, we agree with the trial court that the rationale of Raleigh and Lakeland is persuasive here.
Finally, we are not persuaded that Lamar-Orlando Outdoor Adver. v. City of Ormond Beach, 415 So.2d 1312 (Fla. 5th DCA 1982), requires reversal. While the reviewing court in that case held that state and federal law required compensation "upon the removal" of signs found not to be in conformance of a local ordinance, 415 So.2d at 1319, Lamar-Orlando did not address a statute of limitations issue, and the Lamar-Orlando court did not hold that a challenge to the validity of a sign ordinance was contingent upon the municipality's timely payment, vel non, of just compensation.
Kahn, J., Concurs and Booth, J., Dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.