Baycol, Inc. v. Downtown Development Authority of City of Fort Lauderdale

• Decision Date: 23 June 1975
• Docket Number: No. 45103,45103
• Citation: 315 So.2d 451
• Court: Florida Supreme Court
• Parties: BAYCOL, INC., Petitioner-Appellant, v. DOWNTOWN DEVELOPMENT AUTHORITY OF the CITY OF FORT LAUDERDALE, a public corporation, Respondent-Appellee.

Page 451

315 So.2d 451

BAYCOL, INC., Petitioner-Appellant, v. DOWNTOWN DEVELOPMENT AUTHORITY OF the CITY OF FORT LAUDERDALE, a public corporation, Respondent-Appellee.

No. 45103.

Supreme Court of Florida.

June 23, 1975.

Rehearing Denied July 28, 1975.

Elliott Harris of Lopez & Harris, Miami, for petitioner-appellant.

Frank L. Watson, of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, Cecil T. Farrington, and Ross, Norman & Cory, Fort Lauderdale, for respondent-appellee.

PER CURIAM.

This cause appears on certiorari granted to review the decision of the District Court of Appeal, Fourth District, in Baycol, Inc. v. Downtown Development Authority of City of Fort Lauderdale, 288 So.2d 309 (Fla.App. 4th 1974), which conflicts with Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663 (Fla.1952). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The salient facts are as follows: On Aug. 19, 1971, the Board of the Downtown Development Authority of Fort Lauderdale, a public corporation of the State of Florida (hereafter referred to as DDA), passed a resolution to provide for a bond election on the question of the issuance of special obligation bonds not exceeding $12,500,000 for the following stated purpose:

'To finance the case of Acquiring and constructing improvements to provide traffic access, traffic flow and traffic circulation within said district including parking facilities, street improvements, overhead crosswalks, sidewalks, street lighting, storm drains, bridges, and transportation terminals, more particularly described in the Fort Lauderdale Central Area Study by Victor Gruen, 1967, as revised and modified, (hereinafter called 'project') and on file with the Director of the Authority.' (Emphasis added.)

It is important to note that the official ballot promulgated for use in the bond election contained identical language of purpose with one significant exception--the reference to the Gruen study was deleted and the following substituted:

'As more particularly described and provided in the Resolution of the Authority adopted by its Board on August 19, 1971.'

Approximately three weeks before the bond election, the DDA ran a display advertisement of the revised Gruen plan in the local newspaper and mailed an artist's sketch of the project to voters. This plan provided that a small downtown area would be converted to a parking garage. The petitioner's property was not depicted in the drawing.

Approximately two weeks before the bond election, the DDA had a tentative general site plan prepared by Johnson & Asso. which significantly enlarged the maximum possible boundaries of the proposed project. The possibility that petitioner's property might be included was raised for the first time. Copies of the new plan were posted in the DDA office and displayed at the polling place, but no attempt was made to mail voters a sketch of the plan or to provide newspaper coverage.

The bond issue was approved by the voters on September 28, 1971. Four months later, another Johnson plan was adopted by the DDA. This plan deleted the Governor's Club Hotel property as an economy measure, but substituted the highly expensive Baycol property in its place. The effect of this bit of gerrymandering was to create an oddly shaped parking facility, four and a half blocks square, in the center of downtown Fort Lauderdale. No apparent attempt was made to publicize this latest revision either.

On March 2, 1972, the DDA filed a complaint to validate the bonds, alleging that the purpose of the bonds was to finance the cost of 'acquiring and constructing' certain traffic and parking improvements in accordance with the revised Gruen study. No mention was made of the recent Johnson updates. A show cause order was issued the same day and published in the local newspaper. This notice made no reference to Prospective land acquisition pursuant to a plan of any kind. The only response filed in the action was an answer by the State Attorney. On March 29, 1972, the final judgment validating the bonds was entered.

Within the next six months, the executive director of the DDA, acting on the instructions of the Board, began negotiating with several developers about constructing a shopping mall above the parking garage. Detailed information regarding this new downtown development began appearing regularly in the local news media. Petitioner Baycol and two other affected property owners complained to the DDA about this proposed use of their property.

In October 1972, the DDA initiated an eminent domain proceeding to condemn the property included in the latest Johnson plan for the purpose of constructing a parking facility. Petitioner and other property owners contested the proceeding, alleging that the primary purpose was to construct a shopping mall in furtherance of private interests. The trial court took the testimony of several witnesses and admitted the following documents into evidence: The final judgment validating the bonds and four sets of proposals of the use of the property, the most recent of which depicted a shopping center above the parking garage. These exhibits are part of the record proper, and are subject to judicial review in this cause. Seaboard Air Line Railroad Co. v. Branham, 104 So.2d 356 (Fla.1958); Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

On December 18, 1972, an order of taking was entered by the trial court and was later affirmed by the Fourth District Court of Appeal in Baycol, supra, now before us for review.

Petitioner urges conflict with our holding in Adams, supra, wherein we held that private property may not be acquired by eminent domain if the primary purpose is to develop and dispose of the property to private persons for commercial and industrial purposes.

The threshold question is whether petitioner is estopped from attacking the purpose of the land acquisition in the eminent domain proceeding because the final judgment validating the bonds was inclusive of funds for the land acquisitions. The key to this determination vests in the adequacy of the notice afforded by the bond resolution and related proceedings.

In State v. City of Boca Raton, 172 So.2d 230 (Fla.1965), we found that a resolution authorizing the issuance of the bonds and the evidence adduced at the hearing, together with the plans and specifications prepared by the Capital Improvements Advisory Committee of the City of Boca Raton referred to in the resolution and a part of the public records of the City, were sufficient to give the citizens and taxpayers adequate knowledge concerning the purposes for which the bonds were to be issued. We were satisfied that the notice requirements of Chapter 74, Florida Statutes, were offered. Cf. State v. Manatee County Port Authority, 171 So.2d 169 (Fla.1965). That resolution provided specifically for the purchase and acquisition of certain recreational facilities And for the purchase and acquisition of lands and rights-of-way for streets, and for the purchase of land for a city waste dump, all to be carried out pursuant to a detailed set of plans. Landowners were plainly put on notice that specified properties would be taken by eminent domain with the acquisitions funded from the bond proceeds. By contrast, the resolution in the case sub judice is so vague and indefinite that it is incapable of being reasonably construed on its face to include the condemnation of specified properties. The resolution is devoid of any language whatsoever pertaining to land acquisition, and the vague reference to a revised 'study' would hardly place a landowner on notice that his property would be condemned as a direct result of the bond election. Indeed, the wording on the ballot itself, which we presume the electors studied carefully before casting their votes, did not even allude to the 'study'.

It is true that the voters had been submitted to a barrage of publicity three weeks prior to the election, indicating that a small downtown section would be used as a parking facility, and had received sketches in the mail to that effect. It is equally true that at the time of the election, a 'general site boundary plan' was posted at the polling place. Apparently this 'plan' did not purport to depict the final project but only indicated the outer perimeters of a large amorphous area that might be included in the final project. This rapid turn of events leads to the legitimate conclusion that the DDA was unable to determine at the time of the election which properties, if any, should be acquired for inclusion in the project and preferred to postpone any decision until it was assured of the passage of the bonds in question. In fact, a definite land use plan was not adopted until four months after the election, and there is no evidence that property owners were ever informed of the ultimate plan prior to the bond validation hearings. The show cause order which purported to give notice was devoid of any reference to land acquisition pursuant to a plan of any nature or kind.

It might be argued that the land owners whose properties were included in the original Gruen plan had de facto notice that condemnation was imminent when a display advertisement was published in the newspaper and tenants began vacating the premises. It is clear from the testimony of one appraiser, however, that a high vacancy rate which accompanies the threat of acquisition by a condemning authority did not attach to petitioner's property until later. A portion of this testimony appears as follows:

'Q: In other words, you became aware of the threats (of acquisition) through newspaper articles?

A: Well, so-called threat, yes.

Q: I'm using your word.

A: Yes, right. But I would like to add something here. Actually, the threat to this particular block (Baycol property) was not apparent immediately because the block was not considered in the original acquisition.

Q: Yes?

A: So, if...