Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp.
| Decision Date | 23 September 1992 |
| Docket Number | 91-03263,TAMPA-HILLSBOROUGH,Nos. 92-00065,s. 92-00065 |
| Citation | 608 So.2d 52 |
| Parties | 17 Fla. L. Week. D2232 COUNTY EXPRESSWAY AUTHORITY, Appellant, v. A.G.W.S. CORPORATION, Appellee.COUNTY EXPRESSWAY AUTHORITY, Appellant, v. DUNDEE DEVELOPMENT GROUP, Appellee. |
| Court | Florida District Court of Appeals |
Appeals from nonfinal orders of the Circuit Court for Hillsborough County; Gasper Ficarrotta, Judge.
William C. McLean, Jr., William C. McLean, Jr., P.A., Tampa, for appellant.
S. Cary Gaylor, Marc I. Sachs, and Alan E. DeSerio, Brigham, Moore, Gaylord, Wilson, Ulmer, Schuster and Sachs, Tampa, for appellees.
Thornton J. Williams, Gen. Counsel, and Thomas F. Capshew, Asst. Gen. Counsel, for amicus curiae Florida Dept. of Transp.
Affirmed. See Orlando/Orange County Expressway Auth. v. W & F Agrigrowth-Fernfield, Ltd., 582 So.2d 790 (Fla. 5th DCA 1991). We also agree to certify to the supreme court the question posed by Judge Altenbernd's dissent as follows:
WHETHER ALL LANDOWNERS WITH PROPERTY INSIDE THE BOUNDARIES OF INVALIDATED MAPS OF RESERVATION UNDER SUBSECTIONS 337.241(2) AND (3), FLORIDA STATUTES (1987), ARE LEGALLY ENTITLED TO RECEIVE PER SE DECLARATIONS OF TAKING AND JURY TRIALS TO DETERMINE JUST COMPENSATION.
Since I am bound by the precedent of our supreme court in Joint Ventures, I conclude I must affirm. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Were I able to decide otherwise, I would agree with Judge Altenbernd, for I conclude his reasoning is sound. My concern arises because cases such as these which find that a taking has occurred based upon the authority of Joint Ventures may well involve landowners who have suffered no actual damage. Yet, because a taking has, under Joint Ventures, been found to have taken place, we must offer those landowners an opportunity to prove whether or not they have suffered actual damages. This could result in the state being liable for substantial costs and attorney's fees.
These consolidated cases involve two landowners, each having had a portion of its land temporarily affected by a map of reservation recorded pursuant to subsections 337.241(2) and (3), Florida Statutes (1987). The map was intended to preserve land for use in a future transportation corridor. Such maps and their underlying statutory basis were invalidated by the supreme court in Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla.1990). Thus, for a period of about two years, this recorded map limited development opportunities for the portions of land inside the corridor.
After the decision in Joint Ventures, these two landowners filed inverse condemnation actions seeking monetary damages for the temporary taking of their land. The trial court followed the Fifth District and granted a partial summary judgment, holding that a temporary taking of these lands had occurred, even if the specific parcels were not substantially affected by the recorded map. See Orlando/Orange County Expressway Auth. v. W & F Agrigrowth-Fernfield, Ltd., 582 So.2d 790 (Fla. 5th DCA), review denied, 591 So.2d 183 (Fla.1991). 1
The issue in this case is whether the supreme court in Joint Ventures truly intended to establish a per se inverse condemnation claim for such landowners. If so, then every corridor landowner is entitled to a jury trial on the issue of just compensation, even if it sustained no substantial interference with the use of its land during the brief period these statutes were in effect.
I cannot accept the Fifth District's opinion as a true reflection of the intent of the supreme court or as an appropriate per se rule of constitutional law. I would obey the reasoning in Joint Ventures, as well as recent United States Supreme Court precedent, and hold that a landowner is not entitled to just compensation, attorney's fees, and costs as a result of these short-lived maps of reservation unless it establishes at trial that the temporary existence of such a map actually deprived it of a substantial "economically beneficial or productive use of [its] land." See Lucas v. South Carolina Coastal Council, --- U.S. ----, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Because of the ambiguity I perceive within Joint Ventures, I would also certify this issue to the supreme court.
In the mid-1980s, the legislature enacted section 337.241, Florida Statutes (1987). 2 In general, this statute allowed the Department of Transportation and any expressway authority to prepare and record maps of reservation, indicating corridors of land which could be used for road development or improvement in the future. Subsection (2) of the statute restricted development within these corridors. Subsection (3) gave an affected property owner the right to an administrative hearing, essentially to compel the state to acquire the affected property.
In January 1988, the First District upheld the constitutionality of this statute, but certified to the supreme court a question concerning the constitutionality of subsections (2) and (3). Joint Ventures, Inc. v. Dep't of Transp., 519 So.2d 1069 (Fla. 1st DCA 1988). On April 26, 1990, the supreme court answered the question and declared these statutory subsections unconstitutional in a sharply divided decision. Joint Ventures v. Dep't of Transp., 563 So.2d 622 (Fla.1990).
The Tampa-Hillsborough County Expressway Authority (the Authority) filed a map of reservation on July 8, 1988, describing a corridor running north-south in an area generally west of Dale Mabry Highway. This occurred after the First District's opinion in Joint Ventures, but before the supreme court's opinion. The restrictions on development created by this map were effectively eliminated when the supreme court invalidated the relevant subsections on April 26, 1990.
In early 1991, Dundee Development Group (Dundee) filed a complaint alleging a temporary taking of its land under the Authority's map of reservation and seeking damages for the period from July 8, 1988, to April 26, 1990. The complaint states that, at all relevant times, Dundee owned 205.53 acres located on the north side of Van Dyke Road, approximately one mile west of Dale Mabry Highway. It claims that a "significant portion" of Dundee's land falls inside the corridor and that the corridor bisects this property. 3
The complaint alleges a taking under several different legal tests. First, it maintains that the map of reservation had left "the property within the map of reservation with no utility or economically beneficial use." In the alternative, it alleges that the map constituted a "physical invasion" of the property. Third, the map destroyed Dundee's "investment-backed expectations." Finally, the map resulted in "the denial of a substantial portion of the beneficial use of [Dundee's] property." Procedurally, it is important to realize that under the rule announced by the Fifth District in Agrigrowth, Dundee was not required to prove any of these theories before it obtained a partial summary judgment declaring a taking.
In the trial court, the Authority moved to dismiss, and Dundee moved for summary judgment. The Authority filed an affidavit in opposition to summary judgment stating that the land in question was "vacant pasture, improved pasture lands currently used for agricultural purposes." The trial court granted summary judgment on the issue of taking because it was undisputed that Dundee owned the land and the land was partially inside the reservation. Under the rationale of Agrigrowth, 582 So.2d at 792.
At this point in these proceedings, the judicial determination of a constitutional taking has occurred and a jury will be convened to determine damages. See Dep't of Agric. & Consumer Servs. v. Polk, 568 So.2d 35 (Fla.1990). The jury will decide whether those damages are large, small, or even nominal. The trial court will then enter judgment for that amount, plus attorney's fees and costs. 4
In Joint Ventures, the supreme court held that subsections 337.241(2) and (3), Florida Statutes (1987), unconstitutionally permitted the state to take private property without just compensation, and declared those statutes "invalid as a violation of the fifth amendment to the United States Constitution and article X, section 6(a), of the Florida Constitution." 563 So.2d at 623. Despite this express holding under a just compensation theory, the court emphasized that the issue on appeal was not an individual's right to compensation. For example, the court stated:
[W]hen compensation is claimed due to governmental regulation of property, the appropriate inquiry is directed to the extent of the interference or deprivation of economic use.
Here, however, we do not deal with a claim for compensation, but with a constitutional challenge to the statutory mechanism. Our inquiry requires that we determine whether the statute is an appropriate regulation under the police power, as DOT asserts, or whether the statute is merely an attempt to circumvent the constitutional and statutory protections...
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