Joint Ventures, Inc. v. Dept. of Transp.Joint Ventures, Inc. v. Dept. of Transp.
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
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
We agree with appellant that in a proper case a showing could be made that a taking has occurred via
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);
However, the inadequacy of
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
Nothing we say today is intended to abrogate the principle that the decision to exercise the power of eminent domain is a legislative function.... Once a court determines that a taking has occurred, the government retains the whole range of options already available — amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain.
482 U.S. at ___, 107 S.Ct. at 2389, 96 L.Ed.2d at 268.
Therefore, upon our determination that appellant has an appropriate avenue of relief for its claim of taking and its entitlement to just compensation therefor,1 we uphold the constitutionality of
WHETHER SUBSECTIONS 337.241(2) AND (3) ARE UNCONSTITUTIONAL IN THAT THEY PROVIDE FOR AN IMPERMISSIBLE TAKING OF PROPERTY WITHOUT JUST COMPENSATION AND DENY EQUAL PROTECTION AND DUE PROCESS IN FAILING TO PROVIDE AN ADEQUATE REMEDY.
AFFIRMED.
FRANK, RICHARD H., Associate Judge, concurs.
ERVIN, J., concurs specially with written opinion.
ERVIN, Judge, specially concurring.
Although I concur with the majority‘s opinion in affirming the final order of the Department of Transportation (DOT) dismissing Joint Ventures’ petition to set aside the map of reservation, I do so on the ground that, based upon the record before us, the constitutional issues have not been preserved for our consideration. As the record before us does not reveal that any attempt was made by the property owner or the intended purchaser to present plans for development of the property in question, we have no way of knowing whether the requisite development permits could be issued. Accordingly, I would decline to certify the question as one of great public importance.
The only provision in
The language of
In order to protect a property owner from a noncompensated taking caused by denial of a development permit,
DOT‘s powers in regard to the acquisition of real property are moreover set forth in
Central to a determination of whether the property owner has been denied a substantial portion of the beneficial use of its property, by reason of the recordation of a map of reservation, is a final determination regarding whether the property owner could have received a development permit with the concurrence of all the agencies involved. Yet, as previously stated, the record does not reveal that an attempt was
For example, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the owner of a tract of land being developed as a residential subdivision sued the County Regional Planning Commission, alleging that the application of various zoning laws and regulations to its property resulted in a taking. The United States Supreme Court held that the owner‘s claim was premature, because the owner had not yet obtained a final administrative decision regarding the application of the regulation to its property, nor had it utilized available state procedures for obtaining just compensation. Among other things, the owner, while submitting plans for developing its property, had not sought variances from the zoning regulations; therefore, the Court concluded that the owner could hardly maintain that the Commission‘s disapproval of two preliminary plats was the equivalent of a final decision that no variances would be granted. In the absence of any attempt to secure variances, the Court declined to address the taking issue.
See also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986) (the rejection by a California County Planning Commission of a property owner‘s submitted residential subdivision plan did not constitute a taking because the property owner had not received the County Board of Supervisors’ final definitive position regarding how it would apply the regulations at issue to the particular land and, moreover, the holdings of the California state court left open the possibility that some development might yet be allowed); San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981) (appeal dismissed because it did not appear to the Court that the city‘s rezoning and adoption of an open space plan had deprived the utility of all beneficial use of its property); Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (claim that
The United States Supreme Court has concluded from its own summary of pertinent decisions: “Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it.” MacDonald, Sommer & Frates, 477 U.S. at 340, 106 S.Ct. at 2567, 91 L.Ed.2d at 295-296. Other courts have also held the taking issue to be premature for decision under similar situations. See, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.1987) (constitutional taking claims not ripe in that owner failed to present evidence showing a rejected development plan, and a denial of a variance, or that the submission of a development plan would be excused if its application could reasonably be considered a futile act); Howell Plaza, Inc. v. State Highway Commission, 92 Wis.2d 74, 284 N.W.2d 887 (1979) (in that owner made no attempt to develop or sell its land, no determination could be made that owner was deprived of all or substantially all of the property‘s beneficial use). See also American Savings & Loan Association v. Marin County, 653 F.2d 364, 371 (9th Cir.1981) (plaintiff has “the heavy burden of showing that compliance with local ordinances would be futile....“). The above cases are simply representative of the rule, long since recognized, that “[t]o complain of a ruling one must be made the victim of it. One cannot invoke, to defeat a law, an apprehension of what might be done under it and which, if done, might not receive judicial approval.” Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 72, 61 L.Ed. 145, 150 (1916) (e.s.).
There is nothing in the Court‘s more recent opinion in First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. ___, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), stating the contrary. First English Evangelical held that if the effect of an ordinance was such as to deprive an owner of all beneficial use of its property, the owner was entitled to compensation, even prior to the time of the ordinances‘s invalidation. It is important to understand that First English Evangelical did not disavow the Court‘s earlier opinions requiring that a taking must be established before the constitutional claim can be considered. The Court there assumed from the posture of the record before it that a taking had occurred, because the California Court of Appeal had accepted the correctness of the property owner‘s claim that the challenged ordinance had in fact resulted in a taking. First English Evangelical was careful to point out: “We merely hold that where the government‘s activities have already worked a taking of all use of property, no subsequent action by the government [such as the invalidation of a challenged ordinance] can relieve it of the duty to provide compensation for the period during which the taking was effective.” 482 U.S. at ___, 107 S.Ct. at 2389, 96 L.Ed.2d at 268. The Court carefully limited its holding to the record, and cautioned that its decision did “not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us.” Id.
Consistent, then, with what has been held by the United States Supreme Court, I conclude that Joint Ventures’ constitutional attack on the statute is premature. We have no way of determining whether the regulation at issue can be considered so restrictive as to deny the property owner of all beneficial use of its property, for the reason that it does not appear from the record that the public entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property affected. I would therefore neither address the constitutional claims nor certify the question to the Florida Supreme Court as one of great public importance.