Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp.

• Decision Date: 07 April 1994
• Docket Number: TAMPA-HILLSBOROUGH,No. 80656,80656
• Citation: 640 So.2d 54
• Parties: 19 Fla. L. Weekly S169, 19 Fla. L. Weekly S343 COUNTY EXPRESSWAY AUTHORITY, Petitioner, v. A.G.W.S. CORPORATION, et al., Respondents.
• Court: Florida Supreme Court

Page 54

640 So.2d 54

19 Fla. L. Weekly S169, 19 Fla. L. Weekly S343

TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY, Petitioner, v. A.G.W.S. CORPORATION, et al., Respondents.

No. 80656.

Supreme Court of Florida.

April 7, 1994.

As Clarified June 23, 1994.

William C. McLean, Jr., General Counsel, Tampa-Hillsborough County Expressway Authority, Tampa, and Thornton Williams, General Counsel and Thomas F. Capshew, Asst. General Counsel, Florida Dept. of Transp., Tallahassee, for petitioner.

S. Cary Gaylord, Marc L. Sachs, S. William Moore and Alan E. DeSerio of Brigham, Moore, Gaylord, Wilson, Ulmer, Schuster & Sachs, Tampa, for respondents.

John D. Echeverria and Sharon Dennis, Washington, DC, amicus curiae for Nat. Audubon Society.

Robert P. Banks, Asst. County Atty., West Palm Beach, amicus curiae for Palm Beach County.

Thomas T. Ross, Michael P. McMahon and William C. Turner of Akerman, Senterfitt & Eidson, P.A., Orlando, amicus curiae for Orlando-Orange County Expressway Authority.

Ronald A. Zumbrun and James S. Burling, Sacramento, CA, amicus curiae for Pacific Legal Foundation.

William H. Ethier of Cohn & Birnbaum P.C., Hartford, CT, amicus curiae for The Nat. Ass'n of Home Builders.

GRIMES, Justice.

We review Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corp., 608 So.2d 52, 52 (Fla. 2d DCA 1992), in which the court certified the following question as being of great public importance:

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.

We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

Section 337.241, Florida Statutes (1987), authorized the Department of Transportation and any expressway authority to prepare and record maps of reservation, delineating corridors of land which might be used for road widening or road construction in the future. ¹ Subsection (2) of the statute severely restricted development within these corridors. Subsection (3) gave an affected property owner the right to an administrative hearing, which would compel the state to acquire the affected property if it were proven that the reservation unreasonably and arbitrarily denied the owner of a substantial portion of the beneficial use of the property.

In January 1988, the First District Court of Appeal upheld the validity of the statute but certified a question to this Court regarding the constitutionality of subsections (2) and (3). Joint Ventures, Inc. v. Department of Transp., 519 So.2d 1069 (Fla. 1st DCA 1988). ² While the question was still pending, the Tampa-Hillsborough County Expressway Authority filed a map of reservation in accordance with section 337.241, describing a corridor running north and south in an area west of the Dale Mabry Highway. The map encompassed portions of vacant property owned by A.G.W.S. Corporation and Dundee Development Group. On April 26, 1990, we declared subsections (2) and (3) of section 337.241 unconstitutional, thereby effectively eliminating the development restrictions created by the maps. Joint Ventures, Inc. v. Department of Transp., 563 So.2d 622 (Fla.1990).

After our decision in Joint Ventures, A.G.W.S. and Dundee filed inverse condemnation actions alleging that the filing of the map of reservation constituted a temporary taking of their lands which entitled them to damages for the denial of the use of their property from July 8, 1988, to April 26, 1990. The trial court granted summary judgment in favor of A.G.W.S. and Dundee on the taking claims. In a split decision, the district court of appeal affirmed upon the authority of Orlando/Orange County Expressway Authority v. W & F Agrigrowth-Fernfield, Ltd., 582 So.2d 790 (Fla. 5th DCA), review denied, 591 So.2d 183 (Fla.1991). In a dissenting opinion, Judge Altenbernd expressed the view that subsections (2) and (3) of section 337.241 had been invalidated on due process grounds rather than upon a theory of eminent domain or just compensation. Therefore, he asserted that A.G.W.S. and Dundee were only entitled to damages if they could prove that the map of reservation had caused them substantial economic deprivation. 608 So.2d at 55-56.

In Agrigrowth, the Fifth District Court of Appeal had construed Joint Ventures to mean that the recording of a reservation map pursuant to section 337.241 constituted a per se taking of property without just compensation because such action did not advance a legitimate state interest. Id. at 792. The court reasoned that to establish a taking it was unnecessary to show any damage or loss in market value to the property. Id. A claimant "need only show that the Authority's action in recording the reservation map invaded some property right." Id. The court determined that the reservation map invaded the landowner's property rights by imposing a development moratorium and all that remained was a jury determination of the compensation to be paid. Id.

While the instant case was pending for review in this Court, the Fifth District Court of Appeal receded from its Agrigrowth decision in Department of Transportation v. Weisenfeld, 617 So.2d 1071 (Fla. 5th DCA 1993), by rejecting the premise that a regulation always effects a taking if it does not substantially advance a legitimate state interest, irrespective of any showing of actual damage to the owner. ³ The court held that a property owner could recover compensation only if the map of reservation deprived him of all or substantial economic use of his property. The court also adopted the rationale of Judge Altenbernd's dissent and certified conflict with the decision below. The First District Court of Appeal reached a similar conclusion in Department of Transportation v. Miccosukee Village Shopping Center, 621 So.2d 516 (Fla. 1st DCA 1993). Thus, the issue presented is whether Joint Ventures established a per se taking claim for affected landowners seeking just compensation or invalidated the statutory subsections as violative of due process.

As explained by Judge Griffin in her concurring opinion in Weisenfeld, there has been considerable confusion in the law of excessive land-use regulation:

The relationship between the invalidity of land-use regulation that interferes with property rights in violation of due process and land use regulation that effects a "taking" is not easily understood:

[T]he nature of the difficulty plaguing Court decisions on this issue is substantial and fundamental: It stems from a continuous failure to articulate a consistent view of the relationship between "deprivations" and "takings" when considering attacks on the constitutionality of state and local regulations restricting private property rights.

Michael J. Davis & Robert L. Glicksman, To the Promised Land: A Century of Wandering and a Final Homeland for the Due Process and Taking Clauses, 68 Or.L.Rev. 393, 394 (1989). The fifth amendment contains two discrete protections: "No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. The first of these is commonly called the "police power;" the second is the power of eminent domain. Patrick Wiseman, When the End Justifies the Means: Understanding Takings Jurisprudence In a Legal System With Integrity, 63 St. John's L.Rev. 433, 437 (1988). One of the problems in the area of regulatory takings law is that:

[C]ourts frequently fail to make the distinction between two ways in which government may abuse its power: first, government may act arbitrarily, in violation of due process; second, government may so intrusively regulate the use of property in pursuit of legitimate police power objectives as to take the property without compensation, in violation of the just compensation clause. In the first case, the government action is simply invalid; in the second case, the government action is invalid absent compensation, and so government may either abandon its regulation or validate its action by payment of appropriate compensation, i.e., by exercising its power of eminent domain. The failure to distinguish between these two abuses of government power contributed to the confusion and apparent incoherence of taking law.

Wiseman, supra, at 438.

Weisenfeld, 617 So.2d at 1080 (Griffin, J., concurring). See also Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

Thus, it is evident that while both constitutional theories involve "takings" and "police power," the analysis under due process is different from the analysis under just compensation. Regulations found by the courts to be invalid because they deprive landowners of substantially all use of their property without compensation are not ordinarily struck down as unconstitutional. The government is forced to choose between paying just compensation to keep the regulation in effect or removing the regulation. In situations where state action is declared an improper exercise of police power under due process, the regulation is simply declared unconstitutional. Therefore, a land use regulation can be held facially unconstitutional without a finding that there was an uncompensated taking. The fact that we chose to strike down the statute in Joint Ventures clearly demonstrates that our decision was grounded upon due process considerations. Had we intended our decision to mean that the filing of the map of reservation constituted a per se taking, we would have left the statute intact.

We acknowledge that in striking down the offending portion of the statute in Joint Ventures, we referred to the takings clauses of our state and federal constitutions. ⁴ Joint Ventures, 563 So.2d at 623. However, in so doing, we intended to emphasize that subsections...