Associates of Meadow Lake, Inc. v. City of Edgewater, 97-13

• Decision Date: 23 January 1998
• Docket Number: No. 97-13,97-13
• Citation: 706 So.2d 50
• Parties: 23 Fla. L. Weekly D296 ASSOCIATES OF MEADOW LAKE, INC., Appellant, v. CITY OF EDGEWATER, etc., Appellee.
• Court: Florida District Court of Appeals

Page 50

706 So.2d 50

23 Fla. L. Weekly D296

ASSOCIATES OF MEADOW LAKE, INC., Appellant, v. CITY OF EDGEWATER, etc., Appellee.

No. 97-13.

District Court of Appeal of Florida Fifth District.

Jan. 23, 1998.

Rehearing Denied March 4, 1998.

Franz Eric Dorn, Deltona, for Appellant.

Donna L. McIntosh of Stenstrom, McIntosh, Colbert, Whigham & Simmons, P.A., Sanford, for Appellee.

PETERSON, Judge.

Associates of Meadow Lake, Inc., ("Associates") appeals a final summary judgment determining that it failed to establish a cause of action for inverse condemnation.

Associates, the developer of a residential subdivision, sought inverse condemnation against appellee, the City of Edgewater, ("Edgewater"), on the grounds that Edgewater's construction of Whistle Stop Park without a properly functioning storm water management system had caused a continuous flooding of Associates' property during the early part of 1991. Associates admits that by late 1991, Edgewater's corrections to the water management system remedied Associates' flooding problem. Associates contends that it is entitled to full compensation for the "temporary" taking because it was denied "the reasonable use and enjoyment" of the property in the flooded condition.

Edgewater argues that Associates has failed to state a cause of action for inverse condemnation by omitting any allegation that the flooding caused by Edgewater's faulty construction of the nearby park was permanent in nature. The trial court agreed with Edgewater and entered summary judgement in its favor, finding as a matter of law that Associates' allegations of a temporary flooding did not state a cause of action for inverse condemnation.

Section 606[c], Nichols on Eminent Domain, states:

There is no absolute rule regarding the magnitude or duration of flooding necessary to constitute a taking. It appears to be generally recognized that a single flood of short duration, or occasional temporary flowage, is not sufficient to constitute a taking. Conversely, substantial periodic flooding, coupled with a likelihood of recurrence, has been held to constitute a taking. Yet even this distinction may be easier to state than to apply. Most formulations of the rule speak of permanent invasions, even though "predictable periodocity" appears to be an acceptable substitute for "permanency."

The treatise then quotes as an example, a statement of the Florida rule:

[T]he flooding must constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property.

Nichols quoting Dudley v. Orange County, 137 So.2d 859, 863 (Fla. 2d DCA 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1014, 10 L.Ed.2d 12 (1963).

The Dudley court found that no taking occurred because the record failed to show that the plaintiff's property was continuously flooded for a long period of time. The flooding that took place in Dudley was not considered by the court to be so pervasive and continuous as to constitute a taking; it was an injury to, rather than an appropriation of, the plaintiff's property. Dudley, however, did not consider whether a taking can occur when substantial flooding caused by a public body, is eventually remedied. We find, contrary to the trial court's order, that remedial action by the governmental authority causing the flooding does not necessarily preclude an action for a temporary taking against that authority.

In Hillsborough County v. Gutierrez, 433 So.2d 1337 (Fla. 2d DCA 1983), the court found that the plaintiff's farmlands had been taken by the county's failure to enforce a drainage plan for an adjacent property. The plaintiff's home, however, was not deemed taken by the court because the flooding of the house had since been remedied. In so ruling the court noted that, unlike federal law and some state law, Florida does not recognize a "temporary" taking. By temporary, the court in Gutierrez clearly meant temporary in the sense that the condition which caused the property to be otherwise "taken" had been corrected. This is the "temporary" type of taking which the trial court, in the instant case, held was not compensable under...