Joint Ventures, Inc. v. Department of Transp.

• Decision Date: 29 January 1988
• Docket Number: No. BN-310,BN-310
• Citation: 519 So.2d 1069,13 Fla. L. Weekly 289
• Parties: 13 Fla. L. Weekly 289 JOINT VENTURES, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1069

519 So.2d 1069

13 Fla. L. Weekly 289

JOINT VENTURES, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Appellee.

No. BN-310.

District Court of Appeal of Florida,

First District.

Jan. 29, 1988.

Alan E. Deserio and S. Cary Gaylord, of Brigham, Moore, Gaylord, Schuster & Sachs, Tallahassee and Tampa, for appellant.

Franz Eric Dorn, Paul Martin, and A.J. Spala, Dept. of Transp., and Maxine F. Ferguson and Thomas H. Bateman, III, Gen. Counsel, Dept. of Transp., Tallahassee, for appellee.

WIGGINTON, Judge.

Appellant appeals a final order of the Department of Transportation (Department) dismissing appellant's petition to set aside a Department map of reservation recorded on appellant's property pursuant to section 337.241, Florida Statutes (1985). We have been informed by the Department that after this appeal was filed, the Department instituted condemnation proceedings and thereafter by counterclaim appellant filed an inverse condemnation action. Those proceedings have resulted in a money settlement between the parties thereby rendering moot the issues on appeal. However, we determine that the issue addressed here is one of great public importance and is likely to recur. Thus, our jurisdiction has not been destroyed. See Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984) and Sadowski v. Shevin, 345 So.2d 330 (Fla.1977). Consequently, we retain jurisdiction to address the primary issue and, for reasons discussed herein, we affirm.

Section 337.241, Florida Statutes, provides for the preparing by the Department of maps of reservation for any road within the Department's jurisdiction to delineate the limits of proposed rights of way for the eventual widening of an existing road or for the construction of a road. Section 337.241(2), Florida Statutes (1985), provides that no development permit shall be granted by any governmental entity for new construction of any type on reserved property for five years. Pursuant to a 1986 amendment, the moratorium period has been extended to ten years. § 337.241(2)(b), F.S. (Supp.1986).

Section 337.241(3) provides:

Upon petition by an affected property owner alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of such property, the Department or Expressway Authority shall hold an administrative hearing in accordance with the provisions of chapter 120. When such a hearing results in an order finding in favor of the petitioning property owner, the Department or Expressway Authority shall have 150 days from the date of such order to acquire such property or file appropriate proceedings....

In November 1985, the Department filed a map of reservation as to 6.4 acres of an 8.3 acre tract owned by appellant. The evidence shows that the Department intends to use that land in its storm water management system for the runoff from additional paving resulting from the future widening of Dale Mabry Highway in Tampa. The entire tract in question is undeveloped, but the property to the north and south of it along Dale Mabry Highway has been developed industrially and commercially. The tract was acquired by appellant in 1969 as an investment and has remained essentially in an undeveloped state since that time, although at the time of the hearing, appellants had entered into a contract for sale of the property for $800,000, contingent upon the buyer being able to obtain development permits.

Appellant concedes that the filing of the map on the land in question was not an unreasonable or arbitrary action since that particular land admittedly is the most appropriate choice for the storm water drain off for the proposed project, which also is not challenged as to necessity or reasonableness. However, appellant asserts, inter alia, that subsections 337.241(2) and (3) are unconstitutional in that subsection 337.241(2) provides for the taking of land without just compensation in that the filing of the map substantially deprives appellant of the beneficial use of the land (due to the intrusive moratorium imposed as to all development) and the "remedy" provided by subsection 337.241(3) is inadequate because it amounts to a violation of due process and equal protection as it applies to appellant.

We agree with appellant that in a proper case a showing could be made that a taking has occurred via subsection 337.241(2). However, contrary to the focus of the specially concurring opinion, we find that the issue before this Court regarding the constitutionality of the statute does not hinge upon this Court's determining whether or not a taking has occurred in this particular case. That determination more properly is reserved for disposition in other proceedings, as discussed below. Our review of this statute centers on whether it unconstitutionally deprives appellant of an adequate opportunity to challenge a restriction on his property. Further, while we also agree with appellant that subsection 337.241(3) is inadequate within the circumstances of the instant case to afford appellant a proper remedy for the alleged taking, that fact is not fatal to the constitutionality of the statute because an adequate remedy is available to appellant.

Under proper circumstances, a landowner can prevail on a "taking" claim by showing that a regulation is either unreasonable or arbitrary or that it denies a substantial portion of the beneficial use of the property. See Dade County v. National Bulk Carriers, 450 So.2d 213 (Fla.1984); Albrecht v. State, 444 So.2d 8 (Fla.1984); Key Haven v. Board of Trustees of Internal Improvement, 427 So.2d 153 (Fla.1982); Graham v. Estuary Properties, 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). However, subsection 337.241(3) places the double burden upon the affected property owner to show that the challenged regulation is both unreasonable or arbitrary and that it denies a substantial portion of the beneficial use of the property. If subsection (3) were appellant's only means of obtaining just compensation for the alleged taking of its land, the statute would be unconstitutional as a denial of equal protection and due process because appellant concedes that the filing of the map of reservation was not an unreasonable or arbitrary act in this case. Thus, admittedly, appellant could not, under any circumstances in this case, meet the first prong of the requirement of subsection (3). Therefore, appellant could not obtain any relief under that subsection even though it allegedly could show a denial of a substantial portion of the beneficial use of its land, and thus, under normal standards, would be entitled to relief.

However, the inadequacy of subsection (3) in this case is not determinative of the question of the statute's constitutionality because subsection (3) merely prescribes one avenue of relief available to landowners who qualify under its requirements and who choose to avail themselves of that means of review. Basic constitutional considerations clearly provide an adequate course of relief for the alleged infringement on appellant's property. The Fifth Amendment to the Constitution of the United States and article X, section 6, Florida Constitution, provide that private property shall not be taken for public use without just compensation. Those provisions do not limit governmental interference with property rights per se, but rather secure compensation for the landowner in the event that such interference amounts to a taking. First Lutheran Church v. Los Angeles County, 482 U.S. ----, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). As stated in First Lutheran Church:

We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of " 'the self-executing character of the constitutional provision with respect to compensation....' " [Citations omitted.]

482 U.S. at ----, 107 S.Ct. at 2386, 96 L.Ed.2d at 264.

The court further recognized that claims for just compensation are grounded in the constitution itself:

The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty imposed by the Amendment. The suits were thus founded upon the Constitution of the United States. [Citations omitted.]

482 U.S. at ----, 107 S.Ct. at 2386, 96 L.Ed.2d at 264.

Thus, the court in First Lutheran Church recognized that when a taking occurs, independent of any statutory authorization a landowner has a constitutional right to file an action in inverse condemnation in an appropriate forum, which in this state could be the circuit court. See also Key Haven.

Since appellant, pursuant to First Lutheran Church and the authorities relied upon therein, has a basic constitutional right to pursue a judicial determination of a "taking" and its entitlement to compensation for the alleged taking which purportedly occurred under section 337.241(2), the statute is not constitutionally infirm. See also Lomarch Corporation v. City of Inglewood, 51 N.J. 108, 237 A.2d 881 (1968) in which in reaching a similar result, the court determined that, to be constitutionally sound, a statute requiring a one year moratorium on property approved for residential development necessarily implied that the state would pay the landowner the value of an "option" to purchase the land for one year. We note that, as pointed out in...