314 So. 2d 605 | Fla. Dist. Ct. App. | 1975
Lead Opinion
By petition for writ of certiorari, petitioners (defendants in the trial court) seek to have reviewed an order of the trial court upholding the necessity for the taking of petitioners’ property by respondent under its power of eminent domain.
Proceedings were commenced by respondent filing a complaint in eminent domain together with a declaration of taking. The trial court entered an order of taking without first taking testimony or receiving any other evidence as to necessity. This Court granted certiorari and reversed and remanded for the purpose of taking such testimony.
After remand a hearing was held at which it was established that respondent has adopted a Neighborhood Development Plan (NDP) pursuant to the Community Redevelopment Act of 1969.
“Moreover, the evidence which was offered purportedly involved the necessity for the entire project; it did not deal*607 sufficiently with regard to the particular parcel of land involved here, * * * to show the required reasonable necessity. The city must present evidence pinpointing the need for the particular property, * * * sought to be condemned. No such evidence being submitted by the city, its petition for eminent domain, * * * cannot be approved even though petitioner did not offer any evidence to refute the condemnation proposal.” (281 So.2d 337)
Respondent complains that application of the requirements mandated by Ball v. City of Tallahassee may well render it impossible for it to ever demonstrate necessity or need. That will, of course, depend upon respondent’s progress of compliance with the provisions of the act under which it has elected to proceed.
Petitioners are conducting an industrial fence manufacturing business on their land which joins a railroad track and other property owned by the railroad. Respondent has indicated that it has no present plan to acquire the railroad right-of-way nor the adjoining property, notwithstanding that it is part of the C-2 area of the NDP. Under such circumstances, depending upon the exact relative locations of the properties, it would appear to be relevant to inquire as to the necessity of acquiring petitioners’ property while permitting the adjoining property owned by the railroad (exclusive of the railroad right-of-way)
We again reverse and remand for further proceedings consistent herewith.
It is so ordered.
. Griffin v. City of Jacksonville, Fla.App. 1st 1974, 299 So.2d 90.
. Chapter 163 Florida Statutes, Part III.
. F.S. § 163.360.
et seq. sq oo fia °0 CO * CO O ri XO CO eoo s . ■h m ooo ^ CQ g 10 tH §. h zq C09 QQ jg fe CO CO O CO
. Sup.Ct.Fla.1973, 281 So.2d 333.
. See Community Redevelopment Act of 1969, Chapter 163, Florida Statutes, Part III, supra.
. Please see City of Miami v. Florida East Coast Railway Co., Fla.App. 3rd 1973, 286 So.2d 247.
Concurrence Opinion
(concurring specially).
In my view the City of Jacksonville would have made a showing of reasonable necessity for the condemnation of petitioner’s land had it adopted a concrete and positive plan for the redevelopment of the property which would be put into effect at á reasonably definite time, reasonably close in point of time to the order of taking. In not doing so, it failed to show a present necessity for the taking and thereby ran counter to the ruling of the Supreme Court in Ball v. City of Tallahassee, Fla., 281 So.2d 333.