Board of Com'rs of State Institutions v. Tallahassee Bank & Trust Co., A-288

• Decision Date: 23 December 1958
• Docket Number: No. A-288,A-288
• Citation: 108 So.2d 74
• Parties: BOARD OF COMMISSIONERS OF STATE INSTITUTIONS, a constitutional governmental agency of the State of Florida, Appellant, v. TALLAHASSEE BANK AND TRUST COMPANY, as Administrator cum testamento annexo, Estate of John G. Riley, deceased; Winifred Lively Wesson, Caroline Lively Carraway, and Emily G. Lively; Trustees of the Church of God, a Florida corporation; and Hyman Myers, Appellees.
• Court: Florida District Court of Appeals

Page 74

108 So.2d 74

BOARD OF COMMISSIONERS OF STATE INSTITUTIONS, a constitutional governmental agency of the State of Florida, Appellant, v. TALLAHASSEE BANK AND TRUST COMPANY, as Administrator cum testamento annexo, Estate of John G. Riley, deceased; Winifred Lively Wesson, Caroline Lively Carraway, and Emily G. Lively; Trustees of the Church of God, a Florida corporation; and Hyman Myers, Appellees.

No. A-288.

District Court of Appeal of Florida, First District.

Dec. 23, 1958.

Rehearing Denied Jan. 12, 1959.

Richard W. Ervin, Atty. Gen., Ralph M. McLane, Asst. Atty. Gen., H. Rex Owen, Special Asst. Atty. Gen., for appellant.

Caldwell, Parker, Foster, Madigan, Oven & Moriarty, Tallahassee, for appellees Tallahassee Bank and Trust Co. as Administrator of the Estate of John G. Riley, deceased, Winifred Lively Wesson, Caroline Lively Carraway, and Emily G. Lively.

Leo L. Foster, Tallahassee, for appellee Hyman Myers.

Truett & Watkins, Tallahassee, for appellee Church of God.

THORNAL, Associate Judge.

Appellant Board of Commissioners of State Institutions, which was petitioner below in an eminent domain proceeding, seeks reversal of a final judgment entered pursuant to a jury verdict fixing the amount of compensation and attorneys' fees to be paid to the appellees, who were the landowners.

Numerous points are cited as grounds for reversal. In the ultimate, however, our conclusion must turn on the contention of appellant that the trial judge committed error in permitting evidence of values of appellees' property for uses otherwise prohibited by an existing municipal zoning ordinance.

In its preliminary stages this cause has been before this court on two prior occasions. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, Fla.App.1958, 100 So.2d 67; Fla.App.1958, 101 So.2d 411; certiorari denied without opinion by Supreme Court, Fla.1958, 101 So.2d 817.

Appellant Board of Commissioners of State Institutions hereinafter referred to as the 'State Board' is an agency of the state government created by constitutional provision. Article IV, Section 17, Constitution of Florida, F.S.A. It consists of the Governor and chief administrative officers of the state government, otherwise known as the Cabinet. Article IV, Section 20, Constitution of Florida. It is obvious, therefore, that the personnel of this State Board consists of officials occupying the highest echelon of the executive branch of the state government. The State Board is endowed with the power of eminent domain by statute. Section 73.22, Florida Statutes, F.S.A. By its petition the State Board sought to condemn five parcels of privately owned property for the use of the State in the expansion and development of the so-called Capitol Center. The lands sought to be acquired were identified by parcel number and ownership as follows: Parcel No. 1 owned by the Church of God, hereafter called the Church; Parcel No. 2 owned by the Lively heirs; Parcels Nos. 3 and 4 owned by Myers; and Parcel No. 5 owned by the Riley Estate. All of the land is located within the area generally described as the Capitol Center. It is in close proximity to the State Capitol Building and other buildings housing State agencies within the Center. At the time of the filing of the petition for condemnation all of the parcels involved here were subject to restrictions as to use. The restrictions were imposed by a municipal zoning ordinance of the City of Tallahassee. The Church property was zoned as Residence 'A'. The other four parcels were zoned as Residence 'B'. In general, uses permitted in Residence 'A' district were residential buildings for occupation by not more than four families, customary home occupations, offices of professional persons residing on the premises, churches and public office buildings. Residence 'B' district permitted the same uses as 'A' except there was no limitation as to the number of family units in apartment houses for residence purposes. Residence 'B' also permitted automobile parking lots. The involved property owners filed separate answers to the petition for condemnation. They did not deny either the power to condemn or the need for the taking. They assaulted the validity of the zoning ordinance to the extent that it would be binding evidence of restrictions on the use of their property in relation to the value thereof and the ultimate compensation to be paid to the owners. In the petition the City of Tallahassee had been named a respondent, allegedly in order to determine the extent of any tax claims against the lands.

By their answers the property owners in sum alleged that from the beginning the City and the petitioner actively collaborated in the planning and passage of the zoning restrictions for the specific purpose of limiting all privately owned property within the Capitol Center area to residential uses. It was alleged that the action of the City in this regard was an arbitrary and unreasonable restraint on the use of private property tantamount to confiscation. They asserted that, in imposing these arbitrary restraints, a prime objective sought by the City at the insistence of the petitioner was the prevention of the construction of valuable improvements which would increase the cost of acquisition by the State at such time as it might seek to take the property for State purposes. It was further alleged that even assuming that the zoning restrictions were within reason at the time of the passage of the ordinance, nevertheless, changed conditions over the years had made the application of the zoning measures unreasonable, arbitrary and confiscatory as applied to the respective parcels of land at the time of the filing of the condemnation petition.

The trial judge had the view that as a matter of pleading the answers constituted a collateral assault on the validity of a municipal ordinance. He sustained a motion to strike the answers. However, he granted to the appellee property owners permission to file a cross-claim for declaratory relief seeking an adjudication of the operation, validity and application of the zoning ordinance as applied to the subject of the determination of the value of the property involved.

The appellant State Board by motion sought a dismissal of the cross-claims which the appellees had filed pursuant to the court order. The trial judge denied the motion to dismiss and an accompanying motion to strike. Viewing his action in this regard as being purely interlocutory, we denied certiorari when an effort was made to obtain review of this order. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, Fla.App.1958, 100 So.2d 67.

The trial judge then proceeded, at a pretrial hearing, to determine whether at the trial of the condemnation suit evidence of value would be restricted to uses limited by the zoning ordinance or whether evidence of value for less restrictive uses would be in order. After listening to extensive testimony and argument of counsel, the trial judge entered a comprehensive order containing detailed findings of fact and conclusions of law. His ultimate conclusion however, on the critical point, simply was that the property owners would be 'entitled to offer evidence to establish and to receive as compensation for the taking the fair market value of the property taken unimpaired and unrestricted by the zoning ordinances of the City of Tallahassee limiting the uses of property in Residence 'B' and Residence 'A' areas, but subject to the restrictions upon the uses of property in 'Business A areas'. The jury will be appropriately instructed.'

Review of this latter order was sought by the appellant. Again we declined review. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, Fla.App.1958, 101 So.2d 411, 412. In our opinion declining, at that point, to disturb the order of the trial judge we stated our conviction that the order was 'nothing more than an interlocutory pretrial order governing aspects of evidence as to value that will be allowed to go to the jury when the case is tried.' Being dissatisfied with our order last announced, the present appellant sought review by certiorari in the Supreme Court of Florida. Certiorari was denied by that court. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, Fla.1958, 101 So.2d 817.

The sum of our prior rulings has been that the petitioner, who is now appellant, was asking us to interrupt the orderly processes of a condemnation suit by reviewing mere interlocutory steps in the trial procedure. Howard Johnson, Inc., of Fla. v. State Road Department, Fla.1956, 90 So.2d 306. We have declined to do this but have consistently reserved for future determination any grievance which the appellant might have had as a result of the alleged irregularity in the trial proceedings. That time has now arrived.

We are faced squarely with the necessity of determining the correctness of the various rulings of the trial judge which have been assigned as error. The verdict of the jury awarded compensation to the property owners somewhat in excess of the values testified to by the appellant's expert witnesses. By the same token the verdict was for amounts somewhat less than values testified to by witnesses for the appellees. Being dissatisfied with the amounts awarded by the jury, the appellant seeks reversal of the judgment entered pursuant to the jury verdict which, in addition to compensation for the property, fixed the amount of fees to be paid to attorneys for the several property owners. Before proceeding to the contentions submitted by the parties we think it necessary in the interest of coherence and clarity to epitomize additional factual bases upon which the assault on the zoning ordinance was constructed by the appellees.

At the pre-trial hearing on the cross-claims filed by the appellees the evidence revealed that beginning about 194...