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Filing # 80670708 E-Filed 11/12/2018 02:59:47 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
NHC-FL 18 L.P.,
Plaintiff,
v.
CTN MAINGATE, INC., and Case No. 2018-CA-002891
OSCEOLA COUNTY,
Defendants.
DEFENDANT OSCEOLA COUNTY’S MOTION TO DISMISS
FOR FAILURE TO STATE A CAUSE OF ACTION
Defendant, Osceola County (“County”), moves to dismiss Plaintiff, NHC-FL 18 L.P.’s
(“NHC”) Complaint for Specific Performance, Damages, and Injunctive Relief against the County
for failure to state a cause of action. Fla. R. Civ. P. 1.140(b)(6). Counts 4 through 10 are asserted
against the County. The County seeks dismissal of Counts 4-9 with prejudice, and dismissal of
Count 10 without prejudice.
Introduction
NHC owns property in Osceola County which it operates as Tropical Palms Resort and
Campground (“Tropical Palms”). (Comp. 9.) Currently, a sign advertising Tropical Palms is
located on property owned by Defendant CTN Maingate, Inc. (*CTN”).! (Comp. 99 16, 32.)
NHC’s complaint asserts various claims against the County and CTN alleging that they have
violated its alleged rights to locate a sign advertising Tropical Palms on CTN’s property.
Summary of Grounds for Dismissal
The County is named in counts asserting a breach of the approvals of CTN’s and NHC’s
' The ownership of the CTN property and the Tropical Palms property has changed through the years relevant to the
allegations of the complaint. For ease of reference, CTN and its predecessors in interest will be referred to as “CTN”,
and NHC and its predecessors in interest will be referred to as “NHC.”various zoning approvals and for specific performance based on the CTN zoning approval. NHC
also asserts claims against the County for violation of procedural due process rights for failing to
give Tropical Palms notice of zoning approvals regarding CTN’s property, for a taking for issuing
a sign demolition permit to CTN, and for inverse condemnation for a regulatory taking. Finally,
NCH asks the court for a declaratory judgment declaring that NHC has a vested right to signage
on CTN’s property.
All of these counts should be dismissed. Many of them are based on legal allegations that
the zoning approvals issued by the County constitute a contract entitling NHC to seek damages in
a breach of contract action (Counts 4 and 6) and for specific performance (Count 5). However,
the County’s zoning regulatory approvals do not constitute contracts. Secondly, the County’s
approval of CTN’s zoning application did not grant any approvals or rights to NHC. Furthermore,
many of NHC’s claims against the County are based on actions of CTN, not the County.
Because the County’s approvals did not grant any signage rights to NHC on someone else’s
property, NHC’s request for a declaratory judgment declaring that NHC has a vested right in a
sign on CTN’s property does not state a cause of action.
As for NHC’s constitutional claims, it was not entitled to notice of the County’s approval
of CTN’s zoning applications which concerned CTN’s property, not NHC’s property. The County
never granted NHC a property right in signage on CTN’s property. Accordingly, NHC had no
right to receive notice of the approval of CTN’s zoning application under the Due Process Clause.
Whatever rights NHC had to signage on CTN’s property arose out of private agreements between
CTN and NHC. The County has not physically encroached on any property of NHC. Therefore,
its physical taking inverse condemnation claim must fail. The regulatory taking count does not
identify what regulatory action was taken by the County that constituted a taking, and therefore,also should be dismissed.
Summary of Complaint and Relevant Factual Allegations
Tropical Palms 1972 Sign Easement on CTN Property
The CTN property abuts U.S. 192. (Comp. {I 16, 21.) In 1972, NHC obtained from CTN
an exclusive perpetual easement to place a sign advertising Tropical Palms on the CTN property
at the corner of U.S. 192 and Holiday Trail, the access road to Tropical Palms. (Comp. {f] 12-13,
16; Comp. Ex. A.) Pursuant to the easement, Tropical Palms installed a stand-alone sign on the
CTN property that same year. (Comp. ] 17.) At that time, the CTN property was undeveloped.
(Comp. | 22.) As further discussed below, in 2005, NHC agreed to voluntarily terminate the 1972
easement.
Old Town Development and 85” Pole Sign
Over the next 15 years, the CTN property and neighboring properties were developed with
hotels, retail stores, and amusement parks, which were operated under the name “Old Town.”
(Comp. 27.) The Tropical Palms property was not a part of Old Town. (Comp. {| 29.)
During the development of Old Town over these 15 years, NHC agreed with CTN to
remove the stand-alone sign that was installed pursuant to the 1972 easement, and place a sign for
Tropical Palms on an 85-foot tall pole sign constructed by CTN. (“85’ Pole Sign”). (Comp. {| 30.)
CTIN’s 85° Pole Sign has signs advertising its own property, other property in Old Town, and
Tropical Palms. (Comp. 9] 30-33.)
1989 Old Town PUD (ZMA 89-20)
In 1989, the County adopted a zoning map amendment, ZMA 89-20, amending the zoning
classification of the CTN property and neighboring properties (the Old Town properties) from
Tourist Service Center to a Planned Unit Development (“PUD”) for retail, amusement, hotel, andtourist trade uses (“1989 Old Town PUD”). (Comp. {1 28; Comp. Ex. F.) Because Tropical Palms
was not a part of Old Town, it was not included in the zoning amendment adopted in the 1989 Old
Town PUD. (Comp. §] 29.)
The 1989 Old Town PUD addressed signage at Old Town. (Comp. 9 34-35.) It described
the then-existing Old Town signage, and stated that the 85’ Pole Sign included signs for the Days
Inn located on the CTN property, a message center panel, and “a lit neon panel advertising the
Holiday Village Campground (not part of project).” (Comp. Ex. F at 9.) Holiday Village
Campground is the prior name of Tropical Palms. (Comp. §] 37.)
At the time the PUD was adopted, the 85’ Pole Sign significantly exceeded the size
limitations of the County’s sign ordinance. (Comp. 37.) In order to eliminate individual exterior
signs at Old Town, the 1989 Old Town PUD authorized the 85’ Pole Sign to remain in place
despite exceeding the County’s size limitations. However, it required all new signage to conform
to existing regulations. (/d..; Comp. Ex. F at 9.)
1995 Old Town Comprehensive Development Plan (CDP 95-81)
In 1995, the County approved a comprehensive development plan for Old Town, CDP 95-
81 (“1995 Old Town DCP”). (Comp. Ex. G.) NHC alleges that the 1995 Old Town CDP
“reaffirmed” the County’s “approval to permit” the 85’ Pole Sign to remain as an exception to the
sign ordinance’s size limitations. (Comp. {| 40-41.) By doing so, NHC alleges the County
“reaffirmed the rights of Tropical Palms to keep the size of its sign on the 85° Pole Sign and
acknowledge that its rights.. to the signage on the 85’ Pole Sign were due to Tropical Palms having
agreed to remove its individual sign” under the 1972 easement. (Comp. §] 42.)
In the narrative report submitted in support of its application for the 1995 Old Town CDP,
CTN proposed that the existing 85’ Pole Sign remain, and requested authorization to increase thesquare footage of the sign space to accommodate an additional advertisement on the 85’ Pole Sign.
(Comp. Ex. G at 5-6.) The County approved other aspects of the application, but denied the request
to expand the 85° Pole Sign, and stated that any modifications to the pole sign would be required
to be “within existing allowed square feet size limitations, pursuant to the previous PUD standards
[the 1989 Old Town PUD]J.” (Id. at 1.)
1995 Tropical Palms Zoning Map Amendment (ZMA 95-75)
In 1995, the County also approved a zoning map amendment resulting in approval of a
PUD for Tropical Palms, ZMA 95-75 (1995 Tropical Palms ZMA”). (Comp. Ex. H.)
NHC alleges that “the signage for Tropical Palms on U.S. 192 was incorporated into the
Tropical Palms PUD.” (Comp. § 47.) In the application for the 1995 Tropical Palms ZMA, NHC
“requested that existing signage along US Highway be incorporated in the PUD to allow for two
signs with a total of ??? square feet.” (Comp. Ex. H.) The application did not specifically identify
the 85’ Pole Sign or signage on CTN’s property.
Contrary to NHC’s allegations that the 1995 Tropical Palms ZMA gave it a right to signage
on CTN’s property, it is clear that the zoning map amendment only amended the zoning map
designation for the Tropical Palms’ property itself. CTN was not a party to the 1995 Tropical
Palms ZMA; it did not authorize the application to be submitted on its behalf; and the zoning map
amendment did not in any way apply to or govern the CTN property. (Comp. Ex. H.) Nothing in
the County’s approval of 1995 Tropical Palms ZMA mentions signage on CTN’s property.
Alleged Vested Right to Signage on the 85’ Pole Sign
NHC alleges that the 1989 Old Town PUD, 1995 Old Town CDP, and 1995 Tropical Palms
ZMA gave Tropical Palms a vested right to signage on the 85’ Pole Sign.2005 Termination of 1972 Easement and New Easement Agreement
NHC alleges that Tropical Palms “had an expectation of a perpetual right for signage on
the 85’ Pole Sign pursuant to” the 1989 Old Town PUD, the 1995 Old Town CDP, and the 1995
Tropical Palms ZMA. (Comp. §] 66.) NHC contends that, as an result of this alleged expectation
of a perpetual right for signage, it agreed to surrender the 1972 easement, and relinquish all of its
rights and interest in the 1972 easement area, by entering into a Termination of Sign Easement
with CTN in 2005 (“2005 Easement Termination”). (Comp. 66; Comp. Ex. L.)
At the same time the 2005 Easement Termination was entered into, Tropical Palms entered
into a “Sign Easement Agreement” with CTN. (Comp. | 68; Comp. Ex. M.) NHC alleges that the
2005 “Sign Easement Agreement” “gave Tropical Palms a perpetual nonexclusive easement to
place its signage on the 85’ Pole Sign and spelled out the rights of each party, including the
obligations of CTN to work with Tropical Palms if the 85’ Pole Sign needed to be relocated.”
(Comp. {| 69.)
The 1972 easement had granted Tropical Palms an exclusive easement on a specifically
defined location on the CTN property for the purposes of constructing, erecting, and maintaining
a sign, and for ingress/egress to access the sign. (Comp. Ex. A.) By contrast to the 1972 easement,
the 2005 “Sign Easement Agreement” gave Tropical Properties a non-exclusive right to have a
Tropical Palms’ sign “affixed to [CTN’s] sign structure.” (Comp. Ex. M at § 1.) Also unlike the
1972 easement, the 2005 “Sign Easement Agreement” provided for relocation of the signage if
required under any agreement entered into between CTN and a franchisor or under any local
government regulation. (Comp. Ex. M at 4/5.) Specifically, NHC agreed to “relocate, and, if
required, reduce the height” of its sign if needed in order “to comply with said ordinances.” (Id.)
The 2005 “Sign Easement Agreement” further provided that Tropical Palms was responsible forits sign’s compliance with all required governmental permits and approvals.” (/d. at § 2.)
2006 Old Town PD 06-00021
Tn 2006, the County approved a change to Old Town’s zoning to allow a 260 unit
condominiuny/hotel development and 1,200 square feet of retail (instead of 400 hotel units and
12,000 square feet of retail) (“2006 Old Town PD”). (Comp. Ex. J.) The application materials
submitted for the 2006 Old Town PD proposed to remove the 85” Pole Sign containing the Days
Suites and Tropical Palms signs, and install two new monument signs—one containing a sign for
the new development to be constructed in Old Town, and one for containing signs for Days Suits
and Tropical Palms. (Comp. 54-55.) However, the application materials went on to state that this
“proposed signage design will be provided for in a separate CDP submittal to the County. All other
suite signage not specified in the CDP will comply with the provisions of Chapter 15 of the Osceola
County LDC.” (Comp. ] 54 (quoting Comp. Ex. J).)
NHC alleges that it was not given personal notice of the 2006 Old Town PD. (Comp. {If
53, 56.) NHC further alleges that the 2006 Old Town PD is void on two grounds: (1) it eliminated
Tropical Palms’ signage rights without notice; and (2) failure to comply with the provision of the
2006 Old Town PD stating that “[e]ngineering site plans must be submitted within two years of
the approval or the approval will become void.” (Comp. 991 56, 60, 72.)
In the alternative, NHC alleges that, if the 2006 Old Town PD is the current enforceable
PD for Old Town, it grants Tropical Palms “a vested right to have signage on a monument sign at
the corner of U.S. 192 and Holiday Trail.” (Comp. 157.)
2008 Memorandum
NHC alleges that, after the two-year period for submitting engineering site plans under the
2006 Old Town PD expired, a County employee prepared an internal memorandum regarding thehistory and sequencing of approvals for Old Town. (Comp. {| 61; Comp. Ex. K.) According to
NHC, the “apparent purpose of the Memorandum was to determine the development rights,
including signage, at Old Town as of August 25, 2008.” (Comp. 62.) NHC alleges that the 2008
memorandum stated that signage on Old Town was governed by the 1995 Old Town CDP. (Comp.
11 61, 65.)
2017 CIN Zoning Map Amendment Application (ZMA 17-00021)
In January 2017, CTN filed an application for a zoning map amendment seeking to change
the zoning classification for Old Town to Tourist Commercial, ZMA 01-00021 (2017 CTIN ZMA
Application”). (Comp. Ex. N.) NHC alleges that, in its application, CTN made the following
mistepresentations to the County: (1) that the 2006 Old Town PD governed the zoning for Old
Town; (2) that the 85° Pole Sign “constitutes a nonconforming use”; and (3) that the
nonconforming 85’ Pole Sign had been removed from the CTN property. (Comp. 72-75.)
2017 CTN Permits
In April 2017, the County granted CTN’s request for a permit authorizing it to demolish
the 85’ Pole Sign located on its property and approved the request to install a monument sign
instead. (Comp. {| 77, 78; Comp. Ex. O.) NHC also alleges that, in April 2017, the County
approved a permit request for Celebration Suites (successor to Days Inn Suites), which previously
had a sign on the 85’ Pole Sign, to install a monument sign on the property owned by Celebration
Suites at the corner of U.S. 192 and Holiday Trial. (Comp. 4 80-81.)
NHC complains that (1) the County did not give it personal notice of the permit for
demolition of the 85° Pole Sign; and (2) the County approved CTN’s and Celebration Suites’
respective permit applications for monument signs without providing for Tropical Palms’ signage
as well. (Comp. 19 76, 78.)2017 Grant from West 192 Development Authority; NHC Permit Application
In February 2017, after CTN submitted its permit application to construct a new monument
sign, the West 192 Development Authority (“Development Authority”) approved CTN’s request
for a grant towards the cost of the monument sign. (Comp. {| 83-85.) Celebration Suites also
applied for and received a grant to build a monument sign on its own property. (Comp. §] 86.)
Around this same time, NHC sought to apply to the County for a permit to construct a
monument sign for Tropical Palms on CTN’s property. (Comp. {| 87.) NHC also requested and
was approved for a grant from the Development Authority for its monument sign “as referenced
in Old Town PD 06-00021 [2006 Old Town PD].” (Comp. § 88.) NHC alleges that, because the
County’s regulations require sign permit applications submitted by a non-property owner to
include a Notice of Commencement executed by the property owner, and CTN has refused to
execute a Notice of Commencement, it has been unable to obtain a permit to build a monument
sign on CTN’s property. (Comp. 9 89-90.)
Code Violation for Faded Tropical Palms Sign Initiated in 2016
NHC alleges that, in October 2016, the County’s Code Enforcement Department issued a
notice of code violation based on the faded condition of the Tropical Palms’ sign located on the
85° Pole Sign, and required NHC to replace the faded sign. (Comp. 19 91; Comp. Ex. Q.) The
notice required the violation to be cured by November 28, 2016. (Comp. Ex. Q.) Although NHC
alleges that the code enforcement action was taken against Tropical Palms, the code enforcement
document attached to the complaint shows that the notice of violation was issued to CTN. (Comp.
Ex. Q.) When CTN’s November 28, 2016, deadline passed without the violation being cured, the
County initiated a formal code enforcement proceeding against CTN. (Id.)
Despite this, NHC alleges that the County engaged in wrongful conduct with respect toNHC in connection with the code enforcement action. First, NHC alleges that, “[d]uring the same
time period” as the County was setting conditions for removal of the 95’ Pole Sign in the 2017
CTN ZMA application and the 2017 CTN demolition permit, the County prosecuted a code
violation against NHC and required NHC to replace the faded sign. (Comp. {| 91-92.) That is
incorrect. The code violation based on the faded sign was initiated in October 2016—months
before CTN applied for either the 2017 ZMA or the 2017 demolition permit. Second, NHC asserts
that, “[a]t no time during the process of Tropical Palms acquiring new signage for the 85’ Pole
Sign did Osceola County advise that it had already issued a demolition permit and intended for
CTN to demolish the 85’ Pole Sign.” (Comp. {1 93 (emphasis added).) However, that allegation is
contradicted by NHC’s allegations that it replaced the faded sign in March 2017, before the
demolition permit was issued in April 2017. (Comp. p. 17.) Second, while NHC alleges that the
County prosecuted the code violation against NHC, it is clear from the complaints’ exhibits that
the code enforcement action was taken against CTN. (Comp. Ex. Q.)
Counts Contained in the Complaint
Counts 1-3 — against CTN alone
Counts 1-3 are solely against CTN. Count | is a claim against CTN for breach of the 2005
easement agreement; Count 2 is an action to enjoin CTN from removing the 85’ Pole Sign; and
Count 3 is a claim alleging CTN breached ZMA 89-20 and CDP 95-01.
Counts 4-5 — against both CTN and the County
* Count 4 alleges that the County and CTN breached Old Town PD 06-00021. As to the
County, Count 4 asserts that the County breached its obligations under Old Town PD
06-00021 “by its refusal to accept a sign permit for Tropical Palms, by refusing to grant
and protect Tropical Palms’ signage rights and by failure to take action against CTNfor CTN’s refusal to cooperate in protesting Tropical Palms’ signage rights under Old
Town PD 06-00021.” (Comp. { 159.)
Count 5 is a claim against the County and CTN for specific performance of Old Town
PD 06-00021. As to the County, the “specific performance” Count 5 seeks an order
compelling the County to process and approve Tropical Palms’ application for a
monument sign on CTN property. (Comp. 171.)
Counts 6-10 ~ against the County alone
The remaining counts, Counts 6-10, are solely against the County.
Count 6 secks damages against the County for breach of the 1989 Old Town PD, the
1995 Old Town CPD, and the 1995 Tropical Palms ZMA.
Count 7 is a claim alleging the County violated NHC’s procedural due process rights
under the federal and state constitutions by approving CTN’s applications for the 2006
Old Town PD and the 2017 CTN demolition permit without providing personal notice
to NHC.
Count 8 is an action for a declaratory judgment declaring that NHC has a vested right
to signage on CTN’s property under the 1989 Old Town PD, the 1995 Old Town CPD,
and the 1995 Tropical Palms ZMA; that NHC justifiably relied on the representations
made in those documents; and that it would be unjust to allow the County “to alter its
position regarding Tropical Palms signage rights.” (Comp. p. 36.)
Count 9 is an inverse condemnation claim under the Florida Constitution alleging that
the County engaged in a physical taking of NHC’s sign on CTN’s property by issuing
the demolition permit to CTN.¢ Count 10 is an inverse condemnation claim under the Florida Constitution alleging that
the County engaged in a regulatory taking of its signage rights on CTN’s property
“through its actions including the approval of zoning modifications.” (Comp. § 217.)
Standard of Review
In ruling on a motion to dismiss for failure to state a cause of action, the court must take
all factual allegations in the complaint as true and draw all reasonable inferences in favor of the
plaintiff. Ray Coudriet Builders, Inc., v. R.K. Edwards, Inc., 157 So.3d 484 (Fla. 5th DCA 2015).
However, the court does not accept as true internally inconsistent claims, conclusory allegations,
unwarranted deductions, or mere legal conclusions. W.R. Townsend Contracting, Inc., v. Jensen
Civil Const. Inc., 728 So. 2d 297, 300 (Fla. Ist DCA 1999).
The court’s review is confined to the four corners of the complaint and attached exhibits,
which are considered part of the complaint for all purposes. Fladell v. Palm Beach County
Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000); Mohan v. Orlando Health, Inc., 163 So. 3d
1231, 1233 (Fla. Sth DCA 2015); Fla. R. Civ. P. 1.130(b). If an exhibit to the complaint facially
contradicts an allegation in the complaint, the exhibit controls and must be considered in
determining a motion to dismiss. Jd.
Argument
I. Count 4 — Breach of the 2006 Old Town PD (PD 06-00021)
Count 4 alleges that the County “breached” the 2006 Old Town PD “by its refusal to accept
a sign permit for Tropical Palms, by refusing to grant and protect Tropical Palms’ signage rights
and by failing to take action against CTN for “CTN’s refusal to cooperate in protecting Tropical
Palms’ signage rights under Old Town PD 06-00021.” (Comp. 4 159.)
In PD06-00021, CTN sought approval of a zoning map amendment allowing it to increasethe number of hotel units and decrease the number of commercial units on the property. (Comp.
Ex. J.) The submittal data CTN provided to the County with its application stated that, as part of
the site redevelopment, the existing nonconforming sign (i.e., the 85° Pole Sign) would be
removed. It further stated that a proposed new monument sign would be sought in a separate CDP
submittal to the County, and that all signage not specified in that separate CDP would be required
to comply with the existing signage requirements of the County’s land development code. (Comp.
Ex. J, Submittal Data at p. 8.) The County’s approval of PD06-00021 did not mention anything
about signage for Tropical Palms. (See Comp. Ex. J.)
More specifically, Count 4 alleges that Tropic Palms’ “rights” to have a sign on the 85’
Pole Sign and for the 85’ Pole Sign to remain as an exception to the County’s sign ordinance were
established by Old Town ZMA 89-20 and Old Town 95-81. (Comp. 4] 142.) NHC goes on to
allege that the County and CTN have incorrectly claimed that the development and signage rights
of the CTN property are governed by Old Town PD 06-00021. (Id. 99 145-46.) NHC asserts that
“Old Town PD 06-00021 expressly provides for a monument sign to be placed at the corner of
U.S. 192 and Holiday Trail.” (Ud. 147.) NHC alleges that it has attempted to submit an
application for a permit authorizing placement of a monument sign. (/d.) According to NHC, if
Old Town PD 06-00021 is deemed to control, CTN has breached it by failing to sign off on NHC’s
permit application as the property owner, which the County Code requires for applications
submitted by someone other than the property owner itself. (Id. 19 146-47, 149-51, 154-57.)
Almost as an afterthought, following the allegations relating to CTN, NHC alleges that the
County “breached” Old Town PD 06-00021 “by its refusal to accept a sign permit for Tropical
Palms, by refusing to grant and protect Tropical Palms’ signage rights and by failure to take action
against CTN for CTN’s refusal to cooperate in protecting Tropical Palms’ signage rights underOld Town PD 06-00021.” (Comp. § 159.) NHC’s “breach of PD06-00021” claim fails to state a
cause of action as a matter of law for four basic reasons.
First, PD06-00021 is simply not a contract—it is a zoning regulatory action adopted by the
County pursuant to its governmental authority to regulate land use. Florida law is clear that the
enactment of property-specific zoning provisions applicable to a Planned Unit Development is a
regulatory land use planning device. Preserve Palm Beach Political Action Coram. v. Town of
Palm Beach, 50 So. 3d. 1176 (Fla. 4th 2010) (observing that a PUD is a land use regulation, not a
contract). No action lies against the County for “breach” of the approved PUD.
Second, PD06-00021did not grant any rights in favor of the Tropical Palms property. The
application was submitted by CTN, not NHC, and requests County action for Old Town. On its
face, PD06-00021 does not reference any signs whatsoever; nor does it mention Tropical Palms.
Moreover, even if CTN’s application materials could be deemed part of PD06-00021 itself, the
approval does not give rise to an entitlement to sign space on a new monument sign. The
application materials expressly state that CTN would seek approval for a new monument sign
through a separate CDP, and that any signage would have to comply with existing County sign
regulations. Moreover, there is nothing in CTN’s submission materials stating that, if that separate
application were made and approved, NHC would have a legal entitlement be given space on the
new sign. NHC has not alleged that any separate CDP application was submitted or approved. The
construction of a new monument sign was expressly made contingent on CTN’s submission and
the County’s approval of an application for the new sign. Thus, NHC has no entitlement to the
monument sign referenced in the application materials, and the County has no obligation (nor any
tight for that matter) to allow NHC to construct a monument sign by virtue of the 2006 Old Town
PD on CTN’s property.Similarly, PD06-00021 does not impose any duties on the County. Nothing continued in
the application materials or the approval states that the County is required to accept a sign permit
for Tropical Palms on CTN’s property, to grant and protect Tropical Palms’ signage rights, or to
take action against CTN for CTN’s refusal to cooperate in protecting Tropical Palms’ signage
rights under Old Town PD 06-00021.
Finally, as NHC admits through its own allegations, the County’s permit application
regulations require applications submitted by non-property owners to be accompanied by a Notice
of Commencement executed by the property owner; the County has no obligation to waive its
generally applicable code requirements just because NHC is unable to secure CTN’s signature;
nor is the County required to take action against CTN to compel it to sign off on NHC’s
application; CTN’s refusal to sign the Notice of Commencement is a private dispute between CTN
and NHC.
For these reasons, Count 4 fails to state a cause of action against the County and should be
dismissed. Because amendment would be futile, the dismissal should be with prejudice.
Il. Count 5 — Specific Performance of Old Town PD 06-00021
Count 5 is a claim against the County and CTN for “specific performance” of Old Town
PD 06-00021. As to the County, the “specific performance” Count 5 seeks is an order compelling
the County to process and approve Tropical Palms’ application for a sign on CTN property. (Comp.
4171.) This claim against the County fails as a matter of law for several reasons.
First, and most significantly, specific performance is only a remedy that is available for
breach of contract. E.g., 81A C.I.S. Specific Performance § 1 (“Specific performance is an
equitable remedy which compels the performance of a contract on the terms agreed upon.”); 48
Fla. Jur. 2d Specific Performance § | (“Specific performance of contracts is an equitable remedyand necessarily is based upon the theory that there is a contract extant which a court decree may
direct to be performed.”). As explained above, Old Town PD 06-00021 is not a contract—it is a
zoning regulatory action taken by the County in its governmental, regulatory capacity. Therefore,
NHC simply cannot state a cause of action for specific performance.
Second, even assuming specific performance were available outside the breach of contract
context, or assuming that Old Town PD 06-00021 were a contract, Count 5 fails. Specific
performance is a remedy that compels a party to a contract to perform the contractual duties that
it agreed to perform, id.; it is not available to compel a party to a contract to perform duties that it
did not agree to perform. 71 Am. Jur. 2d Specific Performance § | (“Specific performance means
‘performance specifically as agreed.’ The purpose of the remedy is to give the one who seeks it
the benefit of the contract in specie by compelling the other party to the contract to do what he or
she has agreed to do—perform the contract on the precise terms agreed upon by the parties; hence,
a decree for specific performance is nothing more or less than a means of compelling a party to do
precisely what he or she ought to have done without being coerced by a court. In other words, a
decree of specific performance is designed to remedy a past breach of contract by fulfilling the
legitimate expectations of a wronged promise.”)
The “specific performance” NHC seeks is an order requiring the County to (1) “process
and approve NHC’s application for a sign on CTN’s property, as provided for and agreed upon in
Old Town PD 06-00021”; and (2) “reinstate the $35,828.55 grant.” (Comp. p. 31.) Even if Old
Town PD 06-00021 could be “specifically enforced,” the court could not order the County to do
either because neither of these actions are actions that the County is obligated to take under the
terms of Old Town PD 06-00021.III. Count 6 - Breach of Old Town ZMA 89-20, Old Town CPD 05-81, and Tropical Palms
95-75
In Count 6, NHC claims that the County breached Old Town ZMA 89-20, Old Town CPD
95-81, and Tropical Palms 95-75 “by its failure to acknowledge the rights of Tropical Palms to a
perpetual easement on the 85’ Pole Sign.” (Comp. § 175.) As stated above, the County’s
regulatory zoning actions are not contracts, and no action lies against the County for “breach.”
Furthermore, there is nothing in any of these three zoning documents mentioning Tropical
Palms’ easement, let alone requiring the County take affirmative action “acknowledging” Tropical
Palms’ easement. Moreover, the easement referred to was terminated voluntarily by NHC in 2005.
(Ex. L.)
While the only “breach” that is actually alleged is the failure of the County to acknowledge
Tropical Palms’ easement, Count 6 alleges additional wrongs by the County: that the County has
“wrongfully asserted that the 85’ Pole Sign is subject to the amortization requirement of Osceola
County sign ordinance”; the County has taken unspecified “actions adverse to Tropical Palms
signage rights, including taking inconsistent positions as to Tropical Palms’ entitlements”; and the
County sent a code enforcement notice and required Tropical Palms to replace its faded sign on
the 85’ Pole Sign in order to cure the code violation. (Comp. If] 176-82.)
It is unclear whether these alleged wrongs are also supposed to be read as alleged
“breaches,” and, if so, what it is NHC believes the County has breached.
The first of these other alleged wrongs—that the County has improperly taken the position
that the 85° Pole Sign is subject to the County’s sign ordinance—is contradicted by other
allegations in the complaint and the exhibits. It was not the County that initiated any action to
require removal of the 85’ Pole Sign—it was CTN that sought zoning changes and permit
approvals with respect to its own property. Nor has the County taken any action to enforce its sign
17ordinance with respect to the pole sign.
As to the allegation that the County has taken unspecified “actions adverse to Tropical
Palms signage rights, including taking inconsistent positions as to Tropical Palms’ entitlements,”
Count 6 fails to state a cause of action. NHC does not allege what it contends was breached or
which signage rights/entitlements it is referring to. Furthermore, unidentified “adverse actions” are
insufficient to meet Florida’s fact pleading requirement. Nor has NHC included sufficient factual
allegations about the “adverse action” that is actually identified—‘taking inconsistent positions as
to Tropical Palms’ entitlements.” NHC also fails to identify any document that required the
County to take consistent positions regarding signage.
The last alleged wrong—that the County cited NHC for a code violation due to the faded
state of its sign and required NHC to replace the faded sign—cannot state a claim for “breach” of
anything. First, as explained above, the enforcement action was taken against CTN as the property
owner (not against NHC) before CTN even applied for approval to demolish the pole sign. Second,
as alleged on the face of the complaint, the faded sign violated the County Code. Requiring NHC
to cure the code violation by replacing the faded sign could not possibly violate any right NHC
may have had to maintain a sign on the CTN property. NHC does not, and cannot, allege that
enforcing a generally applicable Code provision requiring deteriorated signs to be replaced
violated any of its rights.
Count 7 — Violation of Procedural Due Process
In Count 7, NHC alleges the County violated its right to procedural due process under the
Florida and United States Constitutions by “purporting to deprive [NHC] of its signage rights on
US. 192 without notice of hearing.” (Comp. 188.) Specifically, NHC claims its procedural due
process rights were violated because the County approved CTN’s applications for PD 06-000021and the 2017 demolition permit without providing personal notice to NHC. However, NHC was
not entitled to personal notice. None of the County’s zoning actions granted Tropical Palms a
property interest in signage on CTN’s property. Furthermore, at the time these actions were taken
by the County in 2006 and 2017, Tropical Palms did not have a real property interest in an
easement on CTN’s property. While the 1972 easement conveyed a real property interest in an
easement, the 1972 easement was terminated in 2005 and replaced by the “Sign Easement
Agreement.” The Sign Easement Agreement does not actually convey a real property interest—it
simply creates a contract right to place a sign on the 85’ Pole Sign owned by CTN. This is further
demonstrated by the fact that the Sign Easement Agreement provides for relocation of the sign and
makes the sign subject to compliance with the requirements of County regulations.
A local government is not required to provide personal notice of land use actions to persons
who do not have a real property interest with respect to the subject property. Otherwise, any and
all persons who have contract rights to use or access real property would have to be noticed. Any
right of notice NHC may have had was to receive notice from CTN by virtue of its private
contractual arrangement. NHC had no right to personal notice from the County, and, thus, cannot
state a claim for a procedural due process violation.
Even if NHC had some type of real property interest in signage on CTN’s property, it
cannot state a procedural due process claim based on County approval of the 85’ Pole Sign’s
removal or demolition. NHC’s rights under the 2005 Sign Easement Agreement did not include a
perpetual right to a sign located on the 85’ Pole Sign. Nor did its rights include a right to
perpetually have a sign that does not comply with the County’s ordinances and land use
regulations. The 2005 Sign Easement Agreement specifically provides that the Tropical Palms
sign is subject to relocation to another site on CTN’s property and/or modification. (Comp. Ex. Mat 5.) Paragraph 5 of 2005 Sign Easement Agreement requires relocation and modification of
the Tropical Palms sign (and other signs located on the 85’ Pole Sign) if needed for CTN to comply
an agreement entered into with any franchisor, or with any County regulation. (/d.) Therefore,
even if NHC’s right to signage on CTN’s property is a real property interest, it is not specific to,
and NHC has no property interest in, the 85’ Pole Sign itself. Because NHC has no property rights
in or to the 85’ Pole Sign, the County’s approval of its demolition would not deprive NHC of any
property interest. Therefore, NHC had no due process right to notice of any such action.
Finally, it is clear from the complaint and attached exhibits that any procedural due process
claim based on the County’s adoption of PD 06-000021 is barred by the statute of limitations.
Because 42 U.S.C. § 1983 does not contain a statute of limitations, the limitations period on a
claim for violation of the federal constitution is governed by the statute of limitations governing
personal injury actions under state law. Williams v. City of Tampa Police Dept., 216 Fed. Appx.
915, 916 (11th Cir. 2007). Thus, the statute of limitations on NHC’s state and federal procedural
due process claims is four years. § 768.28(14), Fla. Stat.; § 95.11(3)(p). The limitations period
runs from the date the cause of action accrued, which is “the date the facts which would support a
cause of action are apparent or should be apparent to a person with a reasonably prudent regard
for his rights.” Williams, 216 Fed. Appx. at 916 (quotation omitted),
The County approved PD 06-00021 at a public hearing in July 2006. Exhibit J to the
complaint shows that a public notice of the hearing was published in the newspaper in May and
June 2006. The County’s hearing on PD 06-00021 was open to the public; documents reflecting
the County’s approval of PD 06-00021 are public records. Given that the County approved PD 06-
00021 in 2006, and public information regarding its approval has been available since that time,
the existence of PD 06-00021 should have been apparent to a person with a reasonably prudent
20regard for his rights sometime earlier than four years before this lawsuit was filed. NHC filed this
lawsuit 12 years after PD 06-00021 was adopted; four years before this lawsuit was filed was eight
years after the County publicly noticed and approved PD 06-00021. The approval of PD 06-00021
was or should have been apparent to NHC at some point sooner than eight years after it the
approval occurred. Therefore, Count 7 should also be dismissed as to PD 06-00021 based on the
expiration of the four-year statute of limitations.
For all of these reasons, Count 7 should be dismissed in its entirety with prejudice.
Count 8 — Declaratory Judgment — Vested Rights/Estoppel
Count 8 is an action for a declaratory judgment declaring that NHC has a vested right to
signage on CTN’s property under Old Town ZMA 89-20, Old Town CPD 95-81, and Tropical
Palms 95-7 because NHC justifiably relied on the representations made in those documents, and
it would be unjust to allow the County “to alter its position regarding Tropical Palms signage
tights.” (Comp. p. 36.)
As explained above, while the 1989 Old Town PUD and 1995 Old Town CDP reference
the 85’ Pole Sign and described the signs that were located on the pole sign, and the 1995 Tropical
Palms ZMA noted that Tropical Palms had a sign on the 85’ Pole Sign on CTN’s property, none
of the documents actually granted any sign rights in Topical Palms’ favor. The two Old Town
approvals were granted in favor of Old Town, not the Tropical Palms’ property. While the Tropical
Palms ZMA was granted for the Tropical Palms’ property, it did not (and, without the authorization
or joinder of CTN, could not) create any property rights in favor of Tropical Palms on property
owned by CTN. The Tropical Palms ZMA simply acknowledged the existence of the sign. Based
on the language of Old Town ZMA 89-20, Old Town CPD 95-81, and Tropical Palms 95-7, NHC
could not have justifiably relied on any of those documents as creating a perpetual entitlement to
21a sign on the CTN property.
Count 9 ~ Inverse Condemnation — Physical Taking
Count 9 is an inverse condemnation claim under the Florida Constitution alleging that the
County engaged in a physical taking of NHC’s sign by issuing the demolition permit to CTN. This
count fails to state a cause of action for a physical taking because the County has not physically
encroached on any property owned by Tropical Palms—it merely took regulatory action by issuing
a permit to the property owner. Nor has the County appropriated any property owned by Tropical
Palms for the County’s own use or for use by the general public. Because there was no physical
taking of property as a matter of law, Count 9 should be dismissed with prejudice.
Count 10 — Inverse Condemnation — Regulatory Taking
Count 10 is an inverse condemnation claim for a regulatory taking under the Florida
Constitution alleging that the County has taken its signage rights on CTN’s property by approving
zoning modifications. The particular zoning modifications NHC believes constituted a regulatory
taking are not identified in Count 10. For this reason, the court should dismiss Count 10 without
prejudice for failure to state a cause of action, or, alternatively, require NHC to provide a more
definite statement as to the factual basis of its regulatory takings claim.
Conclusion
For these reasons, the County requests that the court grant this motion and enter an order
dismissing with prejudice Counts 4,5,6,7,8 and 9 of NHC’s complaint and dismissing Count 10
of NHC’s complaint without prejudice, and for all other relief this court deems just and proper.
22Respectfully submitted on November 12, 2018.
/s/Alan S. Zimmet
ALAN S. ZIMMET, B.C.S.
Fla. Bar No. 349615
NIKKI C. DAY, B.C.S.
Fla. Bar No. 77551
ELIZABETH W. NEIBERGER, ESQ.
Fla. Bar No. 70102
BRYANT MILLER OLIVE, P.A.
One Tampa City Center, Suite 2700
Tampa, FL 33602
(813) 273-6677
azimmet@bmolaw.com
nday@bmolaw.com
eneiberger@bmolaw.com
nakins@bmolaw.com
cmiller@bmolaw.com
agarnder@bmolaw.com
Attorneys for Osceola County
CERTIFICATE OF SERVICE
I CERTIFY that on November 12, 2018, a copy hereof has been filed electronically with
the Clerk of Court via the Florida E-Filing Portal, which will provide an electronic copy to:
Alice R. Huneycutt, Esq.
Jacob T. Cremer, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
401 E. Jackson Street, Suite 2200
Tampa, FL 33602
ahuneycutt@stearnsweaver.com
David S. Cohen, Esq.
Law Offices of David S. Cohen LC
5728 Major Boulevard, Suite 550
Orlando, FL 32819-7974
david@dscohenlaw.com
admin@dscohenlaw.com
Ibernbaum@dscohenlaw.com
mkish@stearnsweaver.com
jcremer@stearnsweaver.com
kstonebreaker@stearnsweaver.com
Attorneys for Plaintiff
Attorneys for CTN Maingate, Inc.
/s/Alan S. Zimmet
ALAN S. ZIMMET, B.C.S.
23
Preview
Filing # 80670708 E-Filed 11/12/2018 02:59:47 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION NHC-FL 18 L.P., Plaintiff, v. CTN MAINGATE, INC., and Case No. 2018-CA-002891 OSCEOLA COUNTY, Defendants. DEFENDANT OSCEOLA COUNTY’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION Defendant, Osceola County (“County”), moves to dismiss Plaintiff, NHC-FL 18 L.P.’s (“NHC”) Complaint for Specific Performance, Damages, and Injunctive Relief against the County for failure to state a cause of action. Fla. R. Civ. P. 1.140(b)(6). Counts 4 through 10 are asserted against the County. The County seeks dismissal of Counts 4-9 with prejudice, and dismissal of Count 10 without prejudice. Introduction NHC owns property in Osceola County which it operates as Tropical Palms Resort and Campground (“Tropical Palms”). (Comp. 9.) Currently, a sign advertising Tropical Palms is located on property owned by Defendant CTN Maingate, Inc. (*CTN”).! (Comp. 99 16, 32.) NHC’s complaint asserts various claims against the County and CTN alleging that they have violated its alleged rights to locate a sign advertising Tropical Palms on CTN’s property. Summary of Grounds for Dismissal The County is named in counts asserting a breach of the approvals of CTN’s and NHC’s ' The ownership of the CTN property and the Tropical Palms property has changed through the years relevant to the allegations of the complaint. For ease of reference, CTN and its predecessors in interest will be referred to as “CTN”, and NHC and its predecessors in interest will be referred to as “NHC.”various zoning approvals and for specific performance based on the CTN zoning approval. NHC also asserts claims against the County for violation of procedural due process rights for failing to give Tropical Palms notice of zoning approvals regarding CTN’s property, for a taking for issuing a sign demolition permit to CTN, and for inverse condemnation for a regulatory taking. Finally, NCH asks the court for a declaratory judgment declaring that NHC has a vested right to signage on CTN’s property. All of these counts should be dismissed. Many of them are based on legal allegations that the zoning approvals issued by the County constitute a contract entitling NHC to seek damages in a breach of contract action (Counts 4 and 6) and for specific performance (Count 5). However, the County’s zoning regulatory approvals do not constitute contracts. Secondly, the County’s approval of CTN’s zoning application did not grant any approvals or rights to NHC. Furthermore, many of NHC’s claims against the County are based on actions of CTN, not the County. Because the County’s approvals did not grant any signage rights to NHC on someone else’s property, NHC’s request for a declaratory judgment declaring that NHC has a vested right in a sign on CTN’s property does not state a cause of action. As for NHC’s constitutional claims, it was not entitled to notice of the County’s approval of CTN’s zoning applications which concerned CTN’s property, not NHC’s property. The County never granted NHC a property right in signage on CTN’s property. Accordingly, NHC had no right to receive notice of the approval of CTN’s zoning application under the Due Process Clause. Whatever rights NHC had to signage on CTN’s property arose out of private agreements between CTN and NHC. The County has not physically encroached on any property of NHC. Therefore, its physical taking inverse condemnation claim must fail. The regulatory taking count does not identify what regulatory action was taken by the County that constituted a taking, and therefore,also should be dismissed. Summary of Complaint and Relevant Factual Allegations Tropical Palms 1972 Sign Easement on CTN Property The CTN property abuts U.S. 192. (Comp. {I 16, 21.) In 1972, NHC obtained from CTN an exclusive perpetual easement to place a sign advertising Tropical Palms on the CTN property at the corner of U.S. 192 and Holiday Trail, the access road to Tropical Palms. (Comp. {f] 12-13, 16; Comp. Ex. A.) Pursuant to the easement, Tropical Palms installed a stand-alone sign on the CTN property that same year. (Comp. ] 17.) At that time, the CTN property was undeveloped. (Comp. | 22.) As further discussed below, in 2005, NHC agreed to voluntarily terminate the 1972 easement. Old Town Development and 85” Pole Sign Over the next 15 years, the CTN property and neighboring properties were developed with hotels, retail stores, and amusement parks, which were operated under the name “Old Town.” (Comp. 27.) The Tropical Palms property was not a part of Old Town. (Comp. {| 29.) During the development of Old Town over these 15 years, NHC agreed with CTN to remove the stand-alone sign that was installed pursuant to the 1972 easement, and place a sign for Tropical Palms on an 85-foot tall pole sign constructed by CTN. (“85’ Pole Sign”). (Comp. {| 30.) CTIN’s 85° Pole Sign has signs advertising its own property, other property in Old Town, and Tropical Palms. (Comp. 9] 30-33.) 1989 Old Town PUD (ZMA 89-20) In 1989, the County adopted a zoning map amendment, ZMA 89-20, amending the zoning classification of the CTN property and neighboring properties (the Old Town properties) from Tourist Service Center to a Planned Unit Development (“PUD”) for retail, amusement, hotel, andtourist trade uses (“1989 Old Town PUD”). (Comp. {1 28; Comp. Ex. F.) Because Tropical Palms was not a part of Old Town, it was not included in the zoning amendment adopted in the 1989 Old Town PUD. (Comp. §] 29.) The 1989 Old Town PUD addressed signage at Old Town. (Comp. 9 34-35.) It described the then-existing Old Town signage, and stated that the 85’ Pole Sign included signs for the Days Inn located on the CTN property, a message center panel, and “a lit neon panel advertising the Holiday Village Campground (not part of project).” (Comp. Ex. F at 9.) Holiday Village Campground is the prior name of Tropical Palms. (Comp. §] 37.) At the time the PUD was adopted, the 85’ Pole Sign significantly exceeded the size limitations of the County’s sign ordinance. (Comp. 37.) In order to eliminate individual exterior signs at Old Town, the 1989 Old Town PUD authorized the 85’ Pole Sign to remain in place despite exceeding the County’s size limitations. However, it required all new signage to conform to existing regulations. (/d..; Comp. Ex. F at 9.) 1995 Old Town Comprehensive Development Plan (CDP 95-81) In 1995, the County approved a comprehensive development plan for Old Town, CDP 95- 81 (“1995 Old Town DCP”). (Comp. Ex. G.) NHC alleges that the 1995 Old Town CDP “reaffirmed” the County’s “approval to permit” the 85’ Pole Sign to remain as an exception to the sign ordinance’s size limitations. (Comp. {| 40-41.) By doing so, NHC alleges the County “reaffirmed the rights of Tropical Palms to keep the size of its sign on the 85° Pole Sign and acknowledge that its rights.. to the signage on the 85’ Pole Sign were due to Tropical Palms having agreed to remove its individual sign” under the 1972 easement. (Comp. §] 42.) In the narrative report submitted in support of its application for the 1995 Old Town CDP, CTN proposed that the existing 85’ Pole Sign remain, and requested authorization to increase thesquare footage of the sign space to accommodate an additional advertisement on the 85’ Pole Sign. (Comp. Ex. G at 5-6.) The County approved other aspects of the application, but denied the request to expand the 85° Pole Sign, and stated that any modifications to the pole sign would be required to be “within existing allowed square feet size limitations, pursuant to the previous PUD standards [the 1989 Old Town PUD]J.” (Id. at 1.) 1995 Tropical Palms Zoning Map Amendment (ZMA 95-75) In 1995, the County also approved a zoning map amendment resulting in approval of a PUD for Tropical Palms, ZMA 95-75 (1995 Tropical Palms ZMA”). (Comp. Ex. H.) NHC alleges that “the signage for Tropical Palms on U.S. 192 was incorporated into the Tropical Palms PUD.” (Comp. § 47.) In the application for the 1995 Tropical Palms ZMA, NHC “requested that existing signage along US Highway be incorporated in the PUD to allow for two signs with a total of ??? square feet.” (Comp. Ex. H.) The application did not specifically identify the 85’ Pole Sign or signage on CTN’s property. Contrary to NHC’s allegations that the 1995 Tropical Palms ZMA gave it a right to signage on CTN’s property, it is clear that the zoning map amendment only amended the zoning map designation for the Tropical Palms’ property itself. CTN was not a party to the 1995 Tropical Palms ZMA; it did not authorize the application to be submitted on its behalf; and the zoning map amendment did not in any way apply to or govern the CTN property. (Comp. Ex. H.) Nothing in the County’s approval of 1995 Tropical Palms ZMA mentions signage on CTN’s property. Alleged Vested Right to Signage on the 85’ Pole Sign NHC alleges that the 1989 Old Town PUD, 1995 Old Town CDP, and 1995 Tropical Palms ZMA gave Tropical Palms a vested right to signage on the 85’ Pole Sign.2005 Termination of 1972 Easement and New Easement Agreement NHC alleges that Tropical Palms “had an expectation of a perpetual right for signage on the 85’ Pole Sign pursuant to” the 1989 Old Town PUD, the 1995 Old Town CDP, and the 1995 Tropical Palms ZMA. (Comp. §] 66.) NHC contends that, as an result of this alleged expectation of a perpetual right for signage, it agreed to surrender the 1972 easement, and relinquish all of its rights and interest in the 1972 easement area, by entering into a Termination of Sign Easement with CTN in 2005 (“2005 Easement Termination”). (Comp. 66; Comp. Ex. L.) At the same time the 2005 Easement Termination was entered into, Tropical Palms entered into a “Sign Easement Agreement” with CTN. (Comp. | 68; Comp. Ex. M.) NHC alleges that the 2005 “Sign Easement Agreement” “gave Tropical Palms a perpetual nonexclusive easement to place its signage on the 85’ Pole Sign and spelled out the rights of each party, including the obligations of CTN to work with Tropical Palms if the 85’ Pole Sign needed to be relocated.” (Comp. {| 69.) The 1972 easement had granted Tropical Palms an exclusive easement on a specifically defined location on the CTN property for the purposes of constructing, erecting, and maintaining a sign, and for ingress/egress to access the sign. (Comp. Ex. A.) By contrast to the 1972 easement, the 2005 “Sign Easement Agreement” gave Tropical Properties a non-exclusive right to have a Tropical Palms’ sign “affixed to [CTN’s] sign structure.” (Comp. Ex. M at § 1.) Also unlike the 1972 easement, the 2005 “Sign Easement Agreement” provided for relocation of the signage if required under any agreement entered into between CTN and a franchisor or under any local government regulation. (Comp. Ex. M at 4/5.) Specifically, NHC agreed to “relocate, and, if required, reduce the height” of its sign if needed in order “to comply with said ordinances.” (Id.) The 2005 “Sign Easement Agreement” further provided that Tropical Palms was responsible forits sign’s compliance with all required governmental permits and approvals.” (/d. at § 2.) 2006 Old Town PD 06-00021 Tn 2006, the County approved a change to Old Town’s zoning to allow a 260 unit condominiuny/hotel development and 1,200 square feet of retail (instead of 400 hotel units and 12,000 square feet of retail) (“2006 Old Town PD”). (Comp. Ex. J.) The application materials submitted for the 2006 Old Town PD proposed to remove the 85” Pole Sign containing the Days Suites and Tropical Palms signs, and install two new monument signs—one containing a sign for the new development to be constructed in Old Town, and one for containing signs for Days Suits and Tropical Palms. (Comp. 54-55.) However, the application materials went on to state that this “proposed signage design will be provided for in a separate CDP submittal to the County. All other suite signage not specified in the CDP will comply with the provisions of Chapter 15 of the Osceola County LDC.” (Comp. ] 54 (quoting Comp. Ex. J).) NHC alleges that it was not given personal notice of the 2006 Old Town PD. (Comp. {If 53, 56.) NHC further alleges that the 2006 Old Town PD is void on two grounds: (1) it eliminated Tropical Palms’ signage rights without notice; and (2) failure to comply with the provision of the 2006 Old Town PD stating that “[e]ngineering site plans must be submitted within two years of the approval or the approval will become void.” (Comp. 991 56, 60, 72.) In the alternative, NHC alleges that, if the 2006 Old Town PD is the current enforceable PD for Old Town, it grants Tropical Palms “a vested right to have signage on a monument sign at the corner of U.S. 192 and Holiday Trail.” (Comp. 157.) 2008 Memorandum NHC alleges that, after the two-year period for submitting engineering site plans under the 2006 Old Town PD expired, a County employee prepared an internal memorandum regarding thehistory and sequencing of approvals for Old Town. (Comp. {| 61; Comp. Ex. K.) According to NHC, the “apparent purpose of the Memorandum was to determine the development rights, including signage, at Old Town as of August 25, 2008.” (Comp. 62.) NHC alleges that the 2008 memorandum stated that signage on Old Town was governed by the 1995 Old Town CDP. (Comp. 11 61, 65.) 2017 CIN Zoning Map Amendment Application (ZMA 17-00021) In January 2017, CTN filed an application for a zoning map amendment seeking to change the zoning classification for Old Town to Tourist Commercial, ZMA 01-00021 (2017 CTIN ZMA Application”). (Comp. Ex. N.) NHC alleges that, in its application, CTN made the following mistepresentations to the County: (1) that the 2006 Old Town PD governed the zoning for Old Town; (2) that the 85° Pole Sign “constitutes a nonconforming use”; and (3) that the nonconforming 85’ Pole Sign had been removed from the CTN property. (Comp. 72-75.) 2017 CTN Permits In April 2017, the County granted CTN’s request for a permit authorizing it to demolish the 85’ Pole Sign located on its property and approved the request to install a monument sign instead. (Comp. {| 77, 78; Comp. Ex. O.) NHC also alleges that, in April 2017, the County approved a permit request for Celebration Suites (successor to Days Inn Suites), which previously had a sign on the 85’ Pole Sign, to install a monument sign on the property owned by Celebration Suites at the corner of U.S. 192 and Holiday Trial. (Comp. 4 80-81.) NHC complains that (1) the County did not give it personal notice of the permit for demolition of the 85° Pole Sign; and (2) the County approved CTN’s and Celebration Suites’ respective permit applications for monument signs without providing for Tropical Palms’ signage as well. (Comp. 19 76, 78.)2017 Grant from West 192 Development Authority; NHC Permit Application In February 2017, after CTN submitted its permit application to construct a new monument sign, the West 192 Development Authority (“Development Authority”) approved CTN’s request for a grant towards the cost of the monument sign. (Comp. {| 83-85.) Celebration Suites also applied for and received a grant to build a monument sign on its own property. (Comp. §] 86.) Around this same time, NHC sought to apply to the County for a permit to construct a monument sign for Tropical Palms on CTN’s property. (Comp. {| 87.) NHC also requested and was approved for a grant from the Development Authority for its monument sign “as referenced in Old Town PD 06-00021 [2006 Old Town PD].” (Comp. § 88.) NHC alleges that, because the County’s regulations require sign permit applications submitted by a non-property owner to include a Notice of Commencement executed by the property owner, and CTN has refused to execute a Notice of Commencement, it has been unable to obtain a permit to build a monument sign on CTN’s property. (Comp. 9 89-90.) Code Violation for Faded Tropical Palms Sign Initiated in 2016 NHC alleges that, in October 2016, the County’s Code Enforcement Department issued a notice of code violation based on the faded condition of the Tropical Palms’ sign located on the 85° Pole Sign, and required NHC to replace the faded sign. (Comp. 19 91; Comp. Ex. Q.) The notice required the violation to be cured by November 28, 2016. (Comp. Ex. Q.) Although NHC alleges that the code enforcement action was taken against Tropical Palms, the code enforcement document attached to the complaint shows that the notice of violation was issued to CTN. (Comp. Ex. Q.) When CTN’s November 28, 2016, deadline passed without the violation being cured, the County initiated a formal code enforcement proceeding against CTN. (Id.) Despite this, NHC alleges that the County engaged in wrongful conduct with respect toNHC in connection with the code enforcement action. First, NHC alleges that, “[d]uring the same time period” as the County was setting conditions for removal of the 95’ Pole Sign in the 2017 CTN ZMA application and the 2017 CTN demolition permit, the County prosecuted a code violation against NHC and required NHC to replace the faded sign. (Comp. {| 91-92.) That is incorrect. The code violation based on the faded sign was initiated in October 2016—months before CTN applied for either the 2017 ZMA or the 2017 demolition permit. Second, NHC asserts that, “[a]t no time during the process of Tropical Palms acquiring new signage for the 85’ Pole Sign did Osceola County advise that it had already issued a demolition permit and intended for CTN to demolish the 85’ Pole Sign.” (Comp. {1 93 (emphasis added).) However, that allegation is contradicted by NHC’s allegations that it replaced the faded sign in March 2017, before the demolition permit was issued in April 2017. (Comp. p. 17.) Second, while NHC alleges that the County prosecuted the code violation against NHC, it is clear from the complaints’ exhibits that the code enforcement action was taken against CTN. (Comp. Ex. Q.) Counts Contained in the Complaint Counts 1-3 — against CTN alone Counts 1-3 are solely against CTN. Count | is a claim against CTN for breach of the 2005 easement agreement; Count 2 is an action to enjoin CTN from removing the 85’ Pole Sign; and Count 3 is a claim alleging CTN breached ZMA 89-20 and CDP 95-01. Counts 4-5 — against both CTN and the County * Count 4 alleges that the County and CTN breached Old Town PD 06-00021. As to the County, Count 4 asserts that the County breached its obligations under Old Town PD 06-00021 “by its refusal to accept a sign permit for Tropical Palms, by refusing to grant and protect Tropical Palms’ signage rights and by failure to take action against CTNfor CTN’s refusal to cooperate in protesting Tropical Palms’ signage rights under Old Town PD 06-00021.” (Comp. { 159.) Count 5 is a claim against the County and CTN for specific performance of Old Town PD 06-00021. As to the County, the “specific performance” Count 5 seeks an order compelling the County to process and approve Tropical Palms’ application for a monument sign on CTN property. (Comp. 171.) Counts 6-10 ~ against the County alone The remaining counts, Counts 6-10, are solely against the County. Count 6 secks damages against the County for breach of the 1989 Old Town PD, the 1995 Old Town CPD, and the 1995 Tropical Palms ZMA. Count 7 is a claim alleging the County violated NHC’s procedural due process rights under the federal and state constitutions by approving CTN’s applications for the 2006 Old Town PD and the 2017 CTN demolition permit without providing personal notice to NHC. Count 8 is an action for a declaratory judgment declaring that NHC has a vested right to signage on CTN’s property under the 1989 Old Town PD, the 1995 Old Town CPD, and the 1995 Tropical Palms ZMA; that NHC justifiably relied on the representations made in those documents; and that it would be unjust to allow the County “to alter its position regarding Tropical Palms signage rights.” (Comp. p. 36.) Count 9 is an inverse condemnation claim under the Florida Constitution alleging that the County engaged in a physical taking of NHC’s sign on CTN’s property by issuing the demolition permit to CTN.¢ Count 10 is an inverse condemnation claim under the Florida Constitution alleging that the County engaged in a regulatory taking of its signage rights on CTN’s property “through its actions including the approval of zoning modifications.” (Comp. § 217.) Standard of Review In ruling on a motion to dismiss for failure to state a cause of action, the court must take all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ray Coudriet Builders, Inc., v. R.K. Edwards, Inc., 157 So.3d 484 (Fla. 5th DCA 2015). However, the court does not accept as true internally inconsistent claims, conclusory allegations, unwarranted deductions, or mere legal conclusions. W.R. Townsend Contracting, Inc., v. Jensen Civil Const. Inc., 728 So. 2d 297, 300 (Fla. Ist DCA 1999). The court’s review is confined to the four corners of the complaint and attached exhibits, which are considered part of the complaint for all purposes. Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000); Mohan v. Orlando Health, Inc., 163 So. 3d 1231, 1233 (Fla. Sth DCA 2015); Fla. R. Civ. P. 1.130(b). If an exhibit to the complaint facially contradicts an allegation in the complaint, the exhibit controls and must be considered in determining a motion to dismiss. Jd. Argument I. Count 4 — Breach of the 2006 Old Town PD (PD 06-00021) Count 4 alleges that the County “breached” the 2006 Old Town PD “by its refusal to accept a sign permit for Tropical Palms, by refusing to grant and protect Tropical Palms’ signage rights and by failing to take action against CTN for “CTN’s refusal to cooperate in protecting Tropical Palms’ signage rights under Old Town PD 06-00021.” (Comp. 4 159.) In PD06-00021, CTN sought approval of a zoning map amendment allowing it to increasethe number of hotel units and decrease the number of commercial units on the property. (Comp. Ex. J.) The submittal data CTN provided to the County with its application stated that, as part of the site redevelopment, the existing nonconforming sign (i.e., the 85° Pole Sign) would be removed. It further stated that a proposed new monument sign would be sought in a separate CDP submittal to the County, and that all signage not specified in that separate CDP would be required to comply with the existing signage requirements of the County’s land development code. (Comp. Ex. J, Submittal Data at p. 8.) The County’s approval of PD06-00021 did not mention anything about signage for Tropical Palms. (See Comp. Ex. J.) More specifically, Count 4 alleges that Tropic Palms’ “rights” to have a sign on the 85’ Pole Sign and for the 85’ Pole Sign to remain as an exception to the County’s sign ordinance were established by Old Town ZMA 89-20 and Old Town 95-81. (Comp. 4] 142.) NHC goes on to allege that the County and CTN have incorrectly claimed that the development and signage rights of the CTN property are governed by Old Town PD 06-00021. (Id. 99 145-46.) NHC asserts that “Old Town PD 06-00021 expressly provides for a monument sign to be placed at the corner of U.S. 192 and Holiday Trail.” (Ud. 147.) NHC alleges that it has attempted to submit an application for a permit authorizing placement of a monument sign. (/d.) According to NHC, if Old Town PD 06-00021 is deemed to control, CTN has breached it by failing to sign off on NHC’s permit application as the property owner, which the County Code requires for applications submitted by someone other than the property owner itself. (Id. 19 146-47, 149-51, 154-57.) Almost as an afterthought, following the allegations relating to CTN, NHC alleges that the County “breached” Old Town PD 06-00021 “by its refusal to accept a sign permit for Tropical Palms, by refusing to grant and protect Tropical Palms’ signage rights and by failure to take action against CTN for CTN’s refusal to cooperate in protecting Tropical Palms’ signage rights underOld Town PD 06-00021.” (Comp. § 159.) NHC’s “breach of PD06-00021” claim fails to state a cause of action as a matter of law for four basic reasons. First, PD06-00021 is simply not a contract—it is a zoning regulatory action adopted by the County pursuant to its governmental authority to regulate land use. Florida law is clear that the enactment of property-specific zoning provisions applicable to a Planned Unit Development is a regulatory land use planning device. Preserve Palm Beach Political Action Coram. v. Town of Palm Beach, 50 So. 3d. 1176 (Fla. 4th 2010) (observing that a PUD is a land use regulation, not a contract). No action lies against the County for “breach” of the approved PUD. Second, PD06-00021did not grant any rights in favor of the Tropical Palms property. The application was submitted by CTN, not NHC, and requests County action for Old Town. On its face, PD06-00021 does not reference any signs whatsoever; nor does it mention Tropical Palms. Moreover, even if CTN’s application materials could be deemed part of PD06-00021 itself, the approval does not give rise to an entitlement to sign space on a new monument sign. The application materials expressly state that CTN would seek approval for a new monument sign through a separate CDP, and that any signage would have to comply with existing County sign regulations. Moreover, there is nothing in CTN’s submission materials stating that, if that separate application were made and approved, NHC would have a legal entitlement be given space on the new sign. NHC has not alleged that any separate CDP application was submitted or approved. The construction of a new monument sign was expressly made contingent on CTN’s submission and the County’s approval of an application for the new sign. Thus, NHC has no entitlement to the monument sign referenced in the application materials, and the County has no obligation (nor any tight for that matter) to allow NHC to construct a monument sign by virtue of the 2006 Old Town PD on CTN’s property.Similarly, PD06-00021 does not impose any duties on the County. Nothing continued in the application materials or the approval states that the County is required to accept a sign permit for Tropical Palms on CTN’s property, to grant and protect Tropical Palms’ signage rights, or to take action against CTN for CTN’s refusal to cooperate in protecting Tropical Palms’ signage rights under Old Town PD 06-00021. Finally, as NHC admits through its own allegations, the County’s permit application regulations require applications submitted by non-property owners to be accompanied by a Notice of Commencement executed by the property owner; the County has no obligation to waive its generally applicable code requirements just because NHC is unable to secure CTN’s signature; nor is the County required to take action against CTN to compel it to sign off on NHC’s application; CTN’s refusal to sign the Notice of Commencement is a private dispute between CTN and NHC. For these reasons, Count 4 fails to state a cause of action against the County and should be dismissed. Because amendment would be futile, the dismissal should be with prejudice. Il. Count 5 — Specific Performance of Old Town PD 06-00021 Count 5 is a claim against the County and CTN for “specific performance” of Old Town PD 06-00021. As to the County, the “specific performance” Count 5 seeks is an order compelling the County to process and approve Tropical Palms’ application for a sign on CTN property. (Comp. 4171.) This claim against the County fails as a matter of law for several reasons. First, and most significantly, specific performance is only a remedy that is available for breach of contract. E.g., 81A C.I.S. Specific Performance § 1 (“Specific performance is an equitable remedy which compels the performance of a contract on the terms agreed upon.”); 48 Fla. Jur. 2d Specific Performance § | (“Specific performance of contracts is an equitable remedyand necessarily is based upon the theory that there is a contract extant which a court decree may direct to be performed.”). As explained above, Old Town PD 06-00021 is not a contract—it is a zoning regulatory action taken by the County in its governmental, regulatory capacity. Therefore, NHC simply cannot state a cause of action for specific performance. Second, even assuming specific performance were available outside the breach of contract context, or assuming that Old Town PD 06-00021 were a contract, Count 5 fails. Specific performance is a remedy that compels a party to a contract to perform the contractual duties that it agreed to perform, id.; it is not available to compel a party to a contract to perform duties that it did not agree to perform. 71 Am. Jur. 2d Specific Performance § | (“Specific performance means ‘performance specifically as agreed.’ The purpose of the remedy is to give the one who seeks it the benefit of the contract in specie by compelling the other party to the contract to do what he or she has agreed to do—perform the contract on the precise terms agreed upon by the parties; hence, a decree for specific performance is nothing more or less than a means of compelling a party to do precisely what he or she ought to have done without being coerced by a court. In other words, a decree of specific performance is designed to remedy a past breach of contract by fulfilling the legitimate expectations of a wronged promise.”) The “specific performance” NHC seeks is an order requiring the County to (1) “process and approve NHC’s application for a sign on CTN’s property, as provided for and agreed upon in Old Town PD 06-00021”; and (2) “reinstate the $35,828.55 grant.” (Comp. p. 31.) Even if Old Town PD 06-00021 could be “specifically enforced,” the court could not order the County to do either because neither of these actions are actions that the County is obligated to take under the terms of Old Town PD 06-00021.III. Count 6 - Breach of Old Town ZMA 89-20, Old Town CPD 05-81, and Tropical Palms 95-75 In Count 6, NHC claims that the County breached Old Town ZMA 89-20, Old Town CPD 95-81, and Tropical Palms 95-75 “by its failure to acknowledge the rights of Tropical Palms to a perpetual easement on the 85’ Pole Sign.” (Comp. § 175.) As stated above, the County’s regulatory zoning actions are not contracts, and no action lies against the County for “breach.” Furthermore, there is nothing in any of these three zoning documents mentioning Tropical Palms’ easement, let alone requiring the County take affirmative action “acknowledging” Tropical Palms’ easement. Moreover, the easement referred to was terminated voluntarily by NHC in 2005. (Ex. L.) While the only “breach” that is actually alleged is the failure of the County to acknowledge Tropical Palms’ easement, Count 6 alleges additional wrongs by the County: that the County has “wrongfully asserted that the 85’ Pole Sign is subject to the amortization requirement of Osceola County sign ordinance”; the County has taken unspecified “actions adverse to Tropical Palms signage rights, including taking inconsistent positions as to Tropical Palms’ entitlements”; and the County sent a code enforcement notice and required Tropical Palms to replace its faded sign on the 85’ Pole Sign in order to cure the code violation. (Comp. If] 176-82.) It is unclear whether these alleged wrongs are also supposed to be read as alleged “breaches,” and, if so, what it is NHC believes the County has breached. The first of these other alleged wrongs—that the County has improperly taken the position that the 85° Pole Sign is subject to the County’s sign ordinance—is contradicted by other allegations in the complaint and the exhibits. It was not the County that initiated any action to require removal of the 85’ Pole Sign—it was CTN that sought zoning changes and permit approvals with respect to its own property. Nor has the County taken any action to enforce its sign 17ordinance with respect to the pole sign. As to the allegation that the County has taken unspecified “actions adverse to Tropical Palms signage rights, including taking inconsistent positions as to Tropical Palms’ entitlements,” Count 6 fails to state a cause of action. NHC does not allege what it contends was breached or which signage rights/entitlements it is referring to. Furthermore, unidentified “adverse actions” are insufficient to meet Florida’s fact pleading requirement. Nor has NHC included sufficient factual allegations about the “adverse action” that is actually identified—‘taking inconsistent positions as to Tropical Palms’ entitlements.” NHC also fails to identify any document that required the County to take consistent positions regarding signage. The last alleged wrong—that the County cited NHC for a code violation due to the faded state of its sign and required NHC to replace the faded sign—cannot state a claim for “breach” of anything. First, as explained above, the enforcement action was taken against CTN as the property owner (not against NHC) before CTN even applied for approval to demolish the pole sign. Second, as alleged on the face of the complaint, the faded sign violated the County Code. Requiring NHC to cure the code violation by replacing the faded sign could not possibly violate any right NHC may have had to maintain a sign on the CTN property. NHC does not, and cannot, allege that enforcing a generally applicable Code provision requiring deteriorated signs to be replaced violated any of its rights. Count 7 — Violation of Procedural Due Process In Count 7, NHC alleges the County violated its right to procedural due process under the Florida and United States Constitutions by “purporting to deprive [NHC] of its signage rights on US. 192 without notice of hearing.” (Comp. 188.) Specifically, NHC claims its procedural due process rights were violated because the County approved CTN’s applications for PD 06-000021and the 2017 demolition permit without providing personal notice to NHC. However, NHC was not entitled to personal notice. None of the County’s zoning actions granted Tropical Palms a property interest in signage on CTN’s property. Furthermore, at the time these actions were taken by the County in 2006 and 2017, Tropical Palms did not have a real property interest in an easement on CTN’s property. While the 1972 easement conveyed a real property interest in an easement, the 1972 easement was terminated in 2005 and replaced by the “Sign Easement Agreement.” The Sign Easement Agreement does not actually convey a real property interest—it simply creates a contract right to place a sign on the 85’ Pole Sign owned by CTN. This is further demonstrated by the fact that the Sign Easement Agreement provides for relocation of the sign and makes the sign subject to compliance with the requirements of County regulations. A local government is not required to provide personal notice of land use actions to persons who do not have a real property interest with respect to the subject property. Otherwise, any and all persons who have contract rights to use or access real property would have to be noticed. Any right of notice NHC may have had was to receive notice from CTN by virtue of its private contractual arrangement. NHC had no right to personal notice from the County, and, thus, cannot state a claim for a procedural due process violation. Even if NHC had some type of real property interest in signage on CTN’s property, it cannot state a procedural due process claim based on County approval of the 85’ Pole Sign’s removal or demolition. NHC’s rights under the 2005 Sign Easement Agreement did not include a perpetual right to a sign located on the 85’ Pole Sign. Nor did its rights include a right to perpetually have a sign that does not comply with the County’s ordinances and land use regulations. The 2005 Sign Easement Agreement specifically provides that the Tropical Palms sign is subject to relocation to another site on CTN’s property and/or modification. (Comp. Ex. Mat 5.) Paragraph 5 of 2005 Sign Easement Agreement requires relocation and modification of the Tropical Palms sign (and other signs located on the 85’ Pole Sign) if needed for CTN to comply an agreement entered into with any franchisor, or with any County regulation. (/d.) Therefore, even if NHC’s right to signage on CTN’s property is a real property interest, it is not specific to, and NHC has no property interest in, the 85’ Pole Sign itself. Because NHC has no property rights in or to the 85’ Pole Sign, the County’s approval of its demolition would not deprive NHC of any property interest. Therefore, NHC had no due process right to notice of any such action. Finally, it is clear from the complaint and attached exhibits that any procedural due process claim based on the County’s adoption of PD 06-000021 is barred by the statute of limitations. Because 42 U.S.C. § 1983 does not contain a statute of limitations, the limitations period on a claim for violation of the federal constitution is governed by the statute of limitations governing personal injury actions under state law. Williams v. City of Tampa Police Dept., 216 Fed. Appx. 915, 916 (11th Cir. 2007). Thus, the statute of limitations on NHC’s state and federal procedural due process claims is four years. § 768.28(14), Fla. Stat.; § 95.11(3)(p). The limitations period runs from the date the cause of action accrued, which is “the date the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Williams, 216 Fed. Appx. at 916 (quotation omitted), The County approved PD 06-00021 at a public hearing in July 2006. Exhibit J to the complaint shows that a public notice of the hearing was published in the newspaper in May and June 2006. The County’s hearing on PD 06-00021 was open to the public; documents reflecting the County’s approval of PD 06-00021 are public records. Given that the County approved PD 06- 00021 in 2006, and public information regarding its approval has been available since that time, the existence of PD 06-00021 should have been apparent to a person with a reasonably prudent 20regard for his rights sometime earlier than four years before this lawsuit was filed. NHC filed this lawsuit 12 years after PD 06-00021 was adopted; four years before this lawsuit was filed was eight years after the County publicly noticed and approved PD 06-00021. The approval of PD 06-00021 was or should have been apparent to NHC at some point sooner than eight years after it the approval occurred. Therefore, Count 7 should also be dismissed as to PD 06-00021 based on the expiration of the four-year statute of limitations. For all of these reasons, Count 7 should be dismissed in its entirety with prejudice. Count 8 — Declaratory Judgment — Vested Rights/Estoppel Count 8 is an action for a declaratory judgment declaring that NHC has a vested right to signage on CTN’s property under Old Town ZMA 89-20, Old Town CPD 95-81, and Tropical Palms 95-7 because NHC justifiably relied on the representations made in those documents, and it would be unjust to allow the County “to alter its position regarding Tropical Palms signage tights.” (Comp. p. 36.) As explained above, while the 1989 Old Town PUD and 1995 Old Town CDP reference the 85’ Pole Sign and described the signs that were located on the pole sign, and the 1995 Tropical Palms ZMA noted that Tropical Palms had a sign on the 85’ Pole Sign on CTN’s property, none of the documents actually granted any sign rights in Topical Palms’ favor. The two Old Town approvals were granted in favor of Old Town, not the Tropical Palms’ property. While the Tropical Palms ZMA was granted for the Tropical Palms’ property, it did not (and, without the authorization or joinder of CTN, could not) create any property rights in favor of Tropical Palms on property owned by CTN. The Tropical Palms ZMA simply acknowledged the existence of the sign. Based on the language of Old Town ZMA 89-20, Old Town CPD 95-81, and Tropical Palms 95-7, NHC could not have justifiably relied on any of those documents as creating a perpetual entitlement to 21a sign on the CTN property. Count 9 ~ Inverse Condemnation — Physical Taking Count 9 is an inverse condemnation claim under the Florida Constitution alleging that the County engaged in a physical taking of NHC’s sign by issuing the demolition permit to CTN. This count fails to state a cause of action for a physical taking because the County has not physically encroached on any property owned by Tropical Palms—it merely took regulatory action by issuing a permit to the property owner. Nor has the County appropriated any property owned by Tropical Palms for the County’s own use or for use by the general public. Because there was no physical taking of property as a matter of law, Count 9 should be dismissed with prejudice. Count 10 — Inverse Condemnation — Regulatory Taking Count 10 is an inverse condemnation claim for a regulatory taking under the Florida Constitution alleging that the County has taken its signage rights on CTN’s property by approving zoning modifications. The particular zoning modifications NHC believes constituted a regulatory taking are not identified in Count 10. For this reason, the court should dismiss Count 10 without prejudice for failure to state a cause of action, or, alternatively, require NHC to provide a more definite statement as to the factual basis of its regulatory takings claim. Conclusion For these reasons, the County requests that the court grant this motion and enter an order dismissing with prejudice Counts 4,5,6,7,8 and 9 of NHC’s complaint and dismissing Count 10 of NHC’s complaint without prejudice, and for all other relief this court deems just and proper. 22Respectfully submitted on November 12, 2018. /s/Alan S. Zimmet ALAN S. ZIMMET, B.C.S. Fla. Bar No. 349615 NIKKI C. DAY, B.C.S. Fla. Bar No. 77551 ELIZABETH W. NEIBERGER, ESQ. Fla. Bar No. 70102 BRYANT MILLER OLIVE, P.A. One Tampa City Center, Suite 2700 Tampa, FL 33602 (813) 273-6677 azimmet@bmolaw.com nday@bmolaw.com eneiberger@bmolaw.com nakins@bmolaw.com cmiller@bmolaw.com agarnder@bmolaw.com Attorneys for Osceola County CERTIFICATE OF SERVICE I CERTIFY that on November 12, 2018, a copy hereof has been filed electronically with the Clerk of Court via the Florida E-Filing Portal, which will provide an electronic copy to: Alice R. Huneycutt, Esq. Jacob T. Cremer, Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 401 E. Jackson Street, Suite 2200 Tampa, FL 33602 ahuneycutt@stearnsweaver.com David S. Cohen, Esq. Law Offices of David S. Cohen LC 5728 Major Boulevard, Suite 550 Orlando, FL 32819-7974 david@dscohenlaw.com admin@dscohenlaw.com Ibernbaum@dscohenlaw.com mkish@stearnsweaver.com jcremer@stearnsweaver.com kstonebreaker@stearnsweaver.com Attorneys for Plaintiff Attorneys for CTN Maingate, Inc. /s/Alan S. Zimmet ALAN S. ZIMMET, B.C.S. 23