Under Article X, Section 6(a) of the Florida Constitution, a “taking” occurs when the government: 1. Requires a landowner to submit to the physical occupation of his land, or 2. Enacts a regulation or imposes a condition that “goes too far” in that it deprives the landowner of substantially all beneficial use of his property. Certain Interested Underwriters at Lloyd’s v. City of St. Petersburg 864 So.2d 1145, 1147 (Fla. 2DCA 2003)
An individual purchased residential property after County told them lots had water and sewer. In reality, water and sewer not immediately available and septics prohibited. Failure of a County to immediately provide water and sewer upon demand effects a “taking” as property is denied its “objective reasonable investment backed expectations.”
1970’s A developer (Cape Cave Corp.) platted large portions of land in several subdivisions in SW Charlotte County for future development. One subdivision – Rotonda Villas contained over 3,500 lots. This action involves 150 non-contiguous lots in Rotonda Villas. 1990 Developer completed construction of sewer system and the system was “certified” as having been built to approved plans. Neither the wastewater collection system nor water distribution system was ever put into operation.
1994 Comp Plan adopted – shows Villas in USA and utilities are provided by Developer. Maps show wastewater and sewer facilities existed (but did say lines were functioning or not). Utility had no customers. Utility/Developer did no maintenance on system. System deteriorated/vandalized. 1998 County begins negotiations with utility to purchase it. Consultant Another utility Lift stations No reports on (AquaSource) No removed to poor purchases the maintenance. connections. prevent theft. condition. system.
2000 County again negotiates to purchase utility – this time with AquaSource. • Consultant reports on poor condition and notes no • Utility becomes part of County development expected in this area for 20+ years. County service area. completes purchase. No Developer Agreements. 2000- 2005 • Charlotte County • No requests • CCU no maintenance. • N o building Utilities (CCU) collects by any property Still no power. no fees from Rotonda owner to permits sought. Vandalism. Villas – no customers. provide service .
2005 Rotonda Projects, LLC formed • Bought in • Jason McGillicuddy inquires as to • Rotonda Projects purchases 150 bulk, sold “availability” and told yes, lots for $6 Million ($40K/each) individually. available. Property Appraiser Loan $4 Million. website confirms availability and property assessed. Feb 2006 Rotonda Projects meet with CCU, FDOH, building official. No building applications.
2007 County’s consultant – cheaper to rebuild than repair. MSBU formed. $300 assessments begin . 2009 County hires contractor to replace system. 2011 Central water/sewer installed.
Plaintiff claimed that it was CCU’s failure to immediately provide water/sewer service upon demand which affected a taking of its property. Without some way to bring potable water to the property and to dispose of wastewater generated from the property, no habitable structures could be built.
The trial court found that Plaintiff had been denied its “objective reasonable investment backed expectations: and suffered substantial economic impact. The trial court ordered County to institute eminent domain proceedings and pay full compensation for land, or allow Plaintiff to retain title and pay Plaintiff damages to the land, to be determined by a jury.
The jury determined that on February 13, 2006, “assuming no deleterious conduct or actions” by County, the lots would have been worth $60K per lot. Furthermore, the jury determined that “assuming the actions of the Defendant have resulted in Plaintiff’s property not being able to receive building permits,” the lots would have been worth $18K per lot. Thus, damages in the amount of $6.3M were awarded to Plaintiff.
On July 23, 2010, Final Judgment was entered. On August 20, 2010, County filed a Notice of Appeal from Order on Liability. On September 1, 2010, an Amended Final Judgment Nunc Pro Tunc was entered. On September 30, 2010, County filed a Amended Notice of Appeal.
County did not physically occupy Plaintiff’s land. County did not enact any regulation or impose any condition which deprived Plaintiff of any economically beneficial use of its land. Plaintiff never applied for or sought a building permit from County . The only “regulatory constraint” was imposed by the State , in the form of the FDER’s 1985 Final Order. County had no authority to override the State’s action . Any misrepresentation that occurred regarding “availability” relate to a tort claim. County did not effect a “taking” of Plaintiff’s property – it merely failed to immediately confer a benefit to the property on demand.
September 21, 2011: PCA Opinion October 5, 2011: Motion for Rehearing/Rehearing En Banc/Motion Requesting Issuance of Written Opinion and Motion For Certification
[W]e can see absolutely no warrant for the proposition that where the government does not affirmatively prohibit the realization of investment-backed expectations, but merely refuses to enhance the value of real property, a compensable taking has occurred. We must seriously question the nature of IPC’s (property owners) claimed property interest that has allegedly been taken. This property interest is nothing but an inchoate interest in the conferral of a benefit to enhance market value. To find it to be a compensable taking would open an incredible Pandora’s Box. The court went on to note that under Virginia law, “… because there is no constitutional right to sewer service, the Town’s failure to confer a benefit on the property which [plaintiff] alleges would substantially enhance the value of its property cannot be a taking.”
The court held that a property owner’s interest in service from a water/sewer district “does not constitute private property subject to the protections of the Taking Clause,” and noting that, “even when assessments have been paid and improvements constructed, courts have generally held that property owners do not have vested rights in municipal improvements.”
The 11 th Circuit Court of Appeals found the plaintiff had no protected property interest in water service because neither the plaintiff nor the landlord complied with the city’s requirements for initiating water service. Essentially, the 11 th Circuit held that there was no property interest in continued water service without an application for service.
The trial court granted summary judgment in favor of the developer. Summary judgment was reversed with the Second District holding that governmental entities have no liability in tort for failing to maintain and provide accurate information to the public. The Second District held: For there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. The Developer has pointed to no common law or statutory duty on the part of the County regarding the dissemination of information concerning the location of water mains. Chapter 153, which authorizes counties to purchase and/or construct water supply systems, § 153.03(1), Fla. Stat (1997), reveals no intent on the part of the legislature to give private citizens a right of recovery for negligence or misrepresentation in connection with the County’s providing of such information.
The Supreme Court held the Florida Constitution does not recognize an exactions taking where there is no compelled dedication of any interest in the property to the public use and the alleged exaction was a non-land use monetary condition for permit approval.
The Fifth District Court of Appeal held the county had a duty to reasonably maintain “Old A1A” as long as it was a public road dedicated to public use. The court held the county was required to provide a reasonable level of maintenance that affords meaningful access unless or until the county formally abandons the road. The court further held that government inaction in the face of an affirmative duty to act can support a claim for inverse condemnation.
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