Chipola Nurseries, Inc. v. Division of Administration, Dept. of Transp., U--364

• Decision Date: 28 March 1974
• Docket Number: No. U--364,U--364
• Parties: CHIPOLA NURSERIES, INC., et al., Appellants, v. DIVISION OF ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, Appellees.
• Court: Florida District Court of Appeals

Page 357

294 So.2d 357

CHIPOLA NURSERIES, INC., et al., Appellants, v. DIVISION OF ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, Appellees.

No. U--364.

District Court of Appeal of Florida, First District.

March 28, 1974.

Rehearing Denied May 7, 1974.

James J. Richardson, Henderson, Richardson, Henry, Buchanan, Munroe & Rodman, Tallahassee, Thomas C. Wilkinson, Marianna, and David W. Foerster, Jones, Foerster & Hodge, Jacksonville, for appellants.

John W. Scruggs, Jr., Chipley, Geoffrey B. Dobson, Barbara Ann Dell McPherson, and Ronald W. Brooks, Tallahassee, for appellees.

BOYER, Judge.

We have before us a petition for writ of common law certiorari seeking review of an order of taking entered in an eminent domain proceeding by the Circuit Court in and for Jackson County. The property in question involves three miles of right-of-way for Interstate 10 in Jackson County. All of the Petitioners except Chipola Nurseries, Inc. are parties defendant in that proceeding. Chipola was permitted to intervene by stipulation because once the other petitioners' properties have been taken the route of the highway as it approaches the Chipola property will have The petitioners here, as defendants below (including Chipola as intervenor), raised defenses to the order of taking as follows: (1) improper exercise of the delegated power of eminent domain; (2) gross abuse of administrative discretion; (3) fraud in the administrative process; and (4) lack of necessity for taking the particular properties involved and fraud in the taking of the properties of the petitioners other than Chipola, thereby 'locking in' the right-of-way through the property of Chipola.

become 'locked in'. The primary issue relates to the proper route of the subject three-mile leg or stretch of the highway to and through Chipola's property.

The acts and omissions complained of involve the alleged failure of the respondent, Department of Transportation, (a) to hold the hearings and prepare the necessary studies and reports required by the National Environmental Policy Act of 1969; (b) to comply with or obtain the permits required by the Florida Air and Water Polution Control Act; (c) to exercise good faith in the study of alternative routes for this three mile leg of Interstate 10, thereby adding greatly to the expense of acquisition and the disruption of farming operations in that area; and (d) to provide adequately for increased drainage waters and other problems caused by the taking and the proposed construction. Petitioners allege that 'in short, the case involves improper planning of such magnitude as to constitute gross abuse of administrative discretion and fraud upon these petitioners.'

The record before us consists of a large cardboard box filled with numerous documents, some marked and some unmarked, which more resembles the bowels of an abandoned attic than a record submitted pursuant to the Florida Appellate Rules. We have spent many hours attempting to create order out of chaos but have finally come to the conclusion that in order to properly dispose of this case it will be necessary to rely virtually entirely upon the recitations contained in the well written briefs of the parties and to assume, as we are convinced that we can, that the attorneys preparing those briefs, as officers of the court, have correctly recited the facts and evidence which would be reflected by the record were it intelligible.

It is our opinion that, after carefully considering the 'record' and the briefs of the parties, if there was ever a case which required the indulgence of the presumption of correctness of the ruling of the trial court, this is it. The trial judge had the opportunity of hearing and observing all of the evidence, apparently initially presented in an orderly fashion, and had the duty of resolving conflicts therein, which he did upon entering the order giving rise to this proceeding. If he was able to make sense of the mass of information which has been brought to us as a record then he is to be congratulated and revered rather than reversed.

Although the names of numerous land owners are designated as petitioners in this proceeding, virtually none of the evidence relates to anyone other than Chipola. It is apparent that, notwithstanding the recitations contained in the petition, the real complaint is that respondent, after considering various alternate routes for that portion of the highway in question, ultimately selected a route contrary to that suggested by Chipola.

A morsel cast to us in petitioners' brief to whet our appetites for review is a recitation that Chipola had offered to donate the right-of-way over its lands should its suggested alternate be selected. The writer of that brief refers us to pages 132 through 136 of Volume II of the transcript to support that contention. However, the respondent has called to our attention subsequent testimony appearing on page 159 of that transcript, indicating that the officer of Chipola later experienced a change of heart, testifying as follows:

'Q. I believe you said something about giving some right-of-way?

'A. No, I didn't say I would necessarily give right-of-way away. I said I would trade some fixtures for some right-of-way land.'

Petitioners do not contend that the route selected by respondent is defective or contrary to the best interests of the public. Indeed, petitioners' expert testified that the route was 'excellent'.

Although it is apparent and painfully obvious that the Department of Transportation acted highhandedly and unbendingly, nevertheless we cannot say that as a matter of law its actions In this case were such as to constitute fraud, capriciousness, misrepresentation, oppression or bad faith. It is very true that some of petitioners' evidence is subject to that interpretation, but there is other evidence to the contrary and it was the duty, responsibility and right of the trial judge to resolve that conflict. Unless the public agency exercising the power of eminent domain acts in bad faith or is guilty of oppression, its discretion in the selection of land will not be interfered with. Wilton v. St. Johns County, 1929, 98 Fla. 26, 123 So. 527.

Petitioners' brief candidly summarizes their contention by stating: '* * * the gravamen of the Petitioners' complaint is the bad faith exercised by the Respondent in failing to simply make a serious, sincere and genuine effort to give as much study to the alternate route suggested by the Petitioners as was supposedly given to the selection of the route for which right-of-way is now sought.' Although bad faith is repeatedly alleged, as above recited, no conclusive evidence thereof appears. It is not bad faith on the part of a condemning authority to fail to 'give as much study to the alternative route suggested' by neighboring land owners as was given to the selection of the route ultimately selected. Were this so all of the taxpayers' funds appropriated for highway construction might well be dissipated in making studies to please every land owner in the vicinity of the proposed improvement. Petitioners have cited Hillsborough County v. Sapp, Sup.Ct.Fla.1973, 280 So.2d 443, but the evidence does not appear to bring this case within the ambit thereof, wherein the court stated that 'the role of the court is * * * assuring that the condemnor acted in good faith, did not exceed its authority, and did not abuse its discretion.' The record before us does not convince us, nor did it apparently...