03-23-1998 - Special
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flIE CITY OF ED&WATER
POST OFFICE BOX 100-EDGEWATER. FLORIDA 32132-0100
Mayor Randy G. Allman
District 1 Councilman James K. Gornto
District 2 Councilman Myron F. Hammond
District 3 Councilman Gary W. Roberts
District 4 Councilwoman Judith R. Lichter
City Manager J. Kevin Grace
City Attorney Nikki Clayton
City Clerk Susan J.Wadsworth
Votina Order
Councilman Roberts
Councilwoman Lichter
Mayor Allman
Councilman Gornto
Councilman Hammond
March 19, 1998
To All Members of the City Council:
I hereby call a Special Meeting of the City Council for Monday, March
23, 1998, at 7:00 p.m. in the Community Center to consider an appeal
regarding Associates of Meadow Lake, Inc. v. City of Edgewater.
2:
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CITY CLE K
P4rsuant to Chapter 286, F.S., if an individual decides to appeal any decision made with respect to
any matter considered at a meeting or hearing, that individual will need a record of the proceedings
and will need to insure that a verbatim record of the proceedings is made.
In accordance with the Americans with Disabilities Act, persons needing assistance to participate in
any of these proceedings should contact City Clerk Susan Wadsworth, 904-424-2407, prior to the
meeting.
suek
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OFFICE OF THE MA VOR
104 NORTH RIVERSIDE DRIVE
(904) 424-2400 FAX-(904) 424-2409
03/18/1998 17:44 4073244788 PAGE 01
STENSTROM, MCINTOSH, COL13ERT, WHIGHAM & SIMMONS, P. A.
ATTORNEYS AND COUNSELLORS AT LAW
SUNTRUST BANK • SUITE ee
eOO WEST FIRST STREET
POST OFFICE BOX 484•
WILLIAM L COLBERT SANFORD. FLORIDA 32772 -4848 KENNETH W. MCINTOSH
$ANFQRO «071322.21YI �
FRANK C. WHIGHAM S. KIRBY MONCRIEF
F :.,, �. S KI c
CLAYTON D. SIMMONS ORLANDO «071 03 i O COVNLEL
ROBERT K, MCINTOSH f (407) 330-.Z379
DONNA LS. MCINTOSH H TTP:11 WWW.STENSTROM.COM
DOUGLAS STENSTROM
WILLIAM E. PEISCHMANN, JR
RETIRED
CATNERINE D. REISCHMANN
JAMES J. PARTLOW _ THOMAS E. WHIGHAM
CITY PAANAG °3292. 191563
March 18, 1998
City Council
City of Edgewater via TELEFAX
104 North. Riverside Drive (904) 424 -2415
Edgewater, FL 32132 -0100
Re: Associates of deadow Lake, Inc. v. City of Edgewater
Seventh Judicial Circuit, Volusia County Case No: 94- 3 1 3 69 -CICI
Fifth District Court of Appeal Case No: 97 -13
Dear Council Members:
Associates of Meadow Lake, Inc_ ( "Associates ") filed an action for inverse condemnation claiming
that the City's construction of Whistle Stop Park resulted in a temporary flooding of a stormwater
• retention pond located in the Meadow Lake Subdivision_ The Circuit Court of Volusia County
granted a Motion for Summary Judgment in favor of the City of Edgewater declaring that, as a matter
of law, Plaintiff Associate's, lawsuit did not state a cause of action for inverse condemnation against
the City.
Associates filled an appeal of the Circuit Court's Final Judgment to the Fifth District Court of Appeal
alleging that the lower court had erred in the entry of the Summary Judgment. The Fifth District
Court of Appeal reversed the lower court's Summary Judgment and stated that the allegations in the
Complaint state a cause of action for inverse condemnation if substantial periodic flooding occurred
and was expected to recur and such flooding denied Associates any reasonable use of its property.
The City is now reviewing and considering whether to file an appeal of the Fifth District Court of
Appeal's Order. I have been handling this matter for the City of Edgewater and will be in attendance
at the Special Meeting to be held on Monday, March 23, 1998 at 7:00 p.m. to review and discuss this
• 03/18/1998 17:44 4073244788 PAGE 02
City of Edgewater City Council
March 18, 1998
Page 2
matter with the City Council. In the meantime if you have any questions regarding this matter, please
feel free to contact me.
Very truly yours,
STENSTROM, Mc1NTOSH, COLBERT,
& S i ' ' ONS, P.A.
onna L. McIntosh
cc: Kevin Grace, City Manager
Robin M. Wolly Legal Assistant
\ fikal dlml oitiabdgewatsrtmedow- Iklaumn,ary.
IN THE CIRCUIT COURT OF THE
SEVENTH JUDICIAL CIRCUIT, IN AND
FOR VOLUSIA COUNTY, FLORIDA
ASSOCIATES OF MEADOW LAKE, INC., CASE NO.: 94- 31369 -CICI
a Florida corporation, DIV. 31
Plaintiff, ,
RECEIVED
vs.
CITY OF EDGEWATER, SEP O
a political subdivision of the `? CITY ATTORNEY
State of Florida,
Defendant.
AMENDED COMPLAINT
Plaintiff, Associates of Meadow Lake, Inc. ( "Associates "),
through its undersigned counsel hereby serves its amended complaint
and sues Defendant, City of Edgewater ( "Edgewater "), and states as
follows:
1. This is an action for equitable relief and for damages in
excess of FIFTEEN THOUSAND DOLLARS ($15,000.00), exclusive of
interest and costs.
2. Associates is a corporation organized and existing under
the laws of the state of Florida with its principal place of
business in Volusia County, Florida. Associates is engaged in the
business of developing real estate into residential subdivisions.
3. Edgewater is a political subdivision of the state of
Florida, located in Volusia County, Florida.
4. In September of 1990, Associates began to assemble a
subdivision in Edgewater, known as Meadow Lake Subdivision.
Associates assembled the property from Coleman Construction Co.,
Inc. ( "Coleman ") in two (2) separate conveyances.
5. On September 14, 1990, Coleman conveyed to Associates
several finished residential lots and associated infrastructure.
On June, 27, 1991, Coleman conveyed to Associates the remaining
additional property.
6. The subdivision's main entrance was on Roberts Road to
the south, and to the north, the subdivision had access to 28th St.
It was comprised of eighty (80) single family residential lots.
Associates purchased the property to continue its development as a
single family residential subdivision.
7. At the time of the initial purchase, the subdivision was
partially developed with existing single family residential homes.
Associates purchased the remaining 38 finished lots. Attached
hereto and incorporated herein by reference as exhibit "A" is a
description of the property purchased on September 14, 1990.
8. On June 27, 1991, Coleman conveyed by quit claim deed the
fee simple interest in additional real property to Associates which
was necessary for the maintenance of the subdivision's stormwater
management system and which was suitable for development by
Associates. That property was referred to as parcel "A" to the
Meadow Lake Subdivision. Attached hereto and incorporated herein
by reference as exhibit "B" is a true and correct copy of the quit
claim deed by which parcel "A" was conveyed to Associates.
`9. On May 16, 1994, Coleman also assigned to Associates the
right, title and interest in any causes of action that Coleman had
to prosecute any claims it had against any governmental entities
arising from the unlawful flooding of the property identified as
2
parcel "A ". The assignment ratified the parties' understanding
that any and all inverse condemnation awards arising from the
flooding of the property were payable to Associates. Attached
hereto and incorporated herein by reference as exhibit "C" is a
true and correct copy of the assignment.
10. Since September 1990 through the date hereof, Associates
has continued with the development of the remaining_ lots of the
Meadow Lake Subdivision. Attached hereto and incorporated herein
by reference as exhibit "D" is a sketch depicting the Meadow Lake
Subdivision site plan.
11. In late 1986 or early 1987, Edgewater developed plans to
begin construction of a public park known as Whistle Stop Park.
The park consisted of approximately 14 acres located adjacent to
the western property boundaries of the Meadow Lake Subdivision.
Edgewater's plans entailed the construction of public recreational
amenities, including, but not limited to, racquetball courts,
basketball courts, baseball diamonds, picnic facilities and public
parking lots.
12. Edgewater retained the civil engineering firm of Ferrara
Engineering, Inc., to prepare site and engineering plans and to
design a stormwater management system to direct stormwater
discharges along the property's eastern boundary to the north.
Edgewater approved the design plans for Whistle Stop Park.
13. On May 7, 1987, Edgewater applied to the St. Johns River
Water Management District ( "District ") for a surface water
management permit. On June 8, 1987, the District issued
3
Edgewater's surface water management permit application,
conditioned on Edgewater constructing the stormwater management
system according to the plans submitted with the application.
14. The stormwater management system required the
construction of a berm between the park and the Meadow Lake
subdivision. The berm and grading were designed to direct water in
a northern direction along the eastern boundary of the park to a
retention pond and then through a culvert underneath 28th St.
15. The property on which the Whistle Stop Park was developed
had a naturally formed crest which bisected the property in a
north -south alignment. Before Edgewater built the improvements
referenced above, stormwater discharges flowed to the east and west
and were absorbed into the ground before reaching adjacent owners.
16. After Edgewater built the improvements referenced above,
the impervious surface area of the land on which Whistle Stop Park
was constructed increased by approximately fifty percent (50 %). A
properly functioning stormwater management system was necessary to
prevent discharges and flooding onto adjacent properties.
17. Edgewater completed construction of the park in early
1991. Contrary to its plans and the conditions of its surface
water management permit, Edgewater never constructed the berm and
grading required to direct stormwater runoff to the north of the
Whistle Stop Park, nor completed construction of the required
retention pond or culvert underneath 28th St.
18. During early 1991, stormwater discharge from Whistle Stop
Park flowed onto and flooded the property described in exhibit "B".
4
Associates never dedicated this property to the general public or
to Edgewater to provide for stormwater management for Whistle Stop
Park. Parcel "A" was not capable of accepting the increased
stormwater runoff from Whistle Stop Park.
19. The flooding of parcel "A" in early 1991 substantially
increased the elevation of the water in the Meadow Lake's retention
pond and on the remainder of the property contained within parcel
"A ". During this same time, several homeowners in Meadow Lake
Subdivision also complained to Associates and to Edgewater of
elevated water levels on their property.
20. Because of the flooding described above, parcel "A" was
inundated with stormwater runoff from Whistle Stop Park. This
inundation resulted in the destruction of various wetlands and
uplands vegetative species and in a permanent alteration of the
topography of the property.
21. As a direct result of the flooding described above, in
1991, Edgewater required Associates to modify the existing Meadow
Lake Subdivision stormwater management system. These modifications
included, but were not limited to, the lowering of weir elevations
to existing inlet boxes under Roberts Road, the reconstructing of
the inlet box openings, and the regrading of existing ditches on
nearby properties.
22. These improvements were required to remedy the flooding
of Associates' property caused by Edgewater's failure to construct
the Whistle Stop Park stormwater management system according to
design plans and Edgewater's permit application.
5
23. The construction of these improvements required the
removal of wetlands vegetation and the depositing of fill.
Associates was therefore required to develop and submit to the
District a wetlands re- vegetation plan to obtain District approval
of the modification to the Meadow Lake Subdivision stormwater
management system.
24. On September 13, 1991, the District inspected Whistle
Stop Park. On September 19, 1991, the District advised Edgewater
that it had violated the conditions of its permit by failing to
construct the stormwater management system in accordance with the
permit and approved design plans.
25. The District required Edgewater to perform corrective
work to the Whistle Stop Park stormwater management system to
assure that it complied with the permitted plans. Edgewater then
constructed and stabilized the berm, recontoured the land by
grading, modified the retention pond on the property and installed
a culvert under 28th St. In late 1991, Edgewater completed the
modifications to the stormwater management system on the Whistle
Stop Park property.
26. The flooding described above deprived Associates of the
reasonable use and benefit of its property and was a continuous
impact on the property.
27. Edgewater's operation of Whistle Stop Park without a
functioning stormwater management system resulted in stormwater
discharges which physically occupied and confiscated Associates'
property to the extent that it has been deprived of the reasonable
6
use and enjoyment of the same.
28. The flooding described above constituted a taking of
Associates' property without the payment of full compensation as
required by Article X, Section 6(a) of the Florida Constitution.
The flooding also constituted a taking of property without the
payment of just compensation as required by the Fifth Amendment to
the United States Constitution. _
29. The flooding of Associates' property constituted a taking
for which it seeks full compensation, including, but not limited
to, the value of the lands taken, damages to any remaining lands
not taken, together with any other special damages, including, but
not limited to, costs to cure or mitigate the effects of the
taking, or such other damages which may become apparent.
30. As a result of Edgewater's actions, Associates has
retained the law firm of Wilson, Leavitt & Small, P.A., as well as
engineering and environmental experts and has obligated itself to
pay reasonable fees for the services thereof. In the event that
the Court determines that there has been an unlawful taking of
Associates' property, Edgewater is obligated to reimburse
Associates' for reasonable attorneys' fees and costs pursuant to
the provisions of Article X, Section 6(a), Florida Constitution,
and pursuant to Sections 73.091 and 73.092, Fla. Stat. (1993).
WHEREFORE, Plaintiff, Associates of Meadow Lake, Inc., demands
judgment against Defendant, as follows:
(A) Entry of an order by this Court finding that the actions
of the Edgewater were an abuse of discretion;
7
(B) Entry of an order of taking finding that lands of
Associates were taken;
(C) Entry of a judgment that Associates is entitled to full
compensation for the taking, including, but not limited to, the
value of the property taken, damages caused by the taking, together
with any special damages which hereinafter may become apparent;
(D) Entry of an order empaneling a jury of _twelve (12)
persons to try the issue of full compensation and the award of the
same to Associates on its verdict;
(E) Entry of an order awarding reasonable costs for these
proceedings, including, a reasonable attorney's fee and interest;
and,
(F) Enter an order granting such other relief as this Court
deems proper.
I HEREBY CERTIFY that a true and correct copy of the foregoing
was furnished by U.S. Mail to the counsel listed on the attached
service list this Gj' day of September, 1994.
WILSON, LEAVITT & SMALL, P.A.
111 N. Orange Avenue, Suite 1575
Orlando, Florida 32801 -2316
(407) 843 -4321
Attorneys for Plaintiff, Associates
of w Lake, Inc.
JA W� SMALL
F orida Bar No. 0562890
8
SERVICE LIST
Associates of Meadow Lake v. City of Edgewater
Ms. Donna L.S. McIntosh, Esquire
Stenstrom, McIntosh, Julian,
Colbert, Whigham & Simmons, P.A.
200 W. First Street, Suite 22
P.O. Box 4848
Sanford, FL 32772 -4848
Ms. Rrista A. Storey, Esquire
P.O. Box 100
Edgewater, FL 32132 -0100
9
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Roberts Road
EXHIBIT D
03/11/1998 16:41 4073244788 PAGE 02
I
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 1998
ASSOCIATES OF MEADOW LAKE, 1NC., NO i r'NAL SUN i r T- E T M EXF!RE^
TO FiL F RE l ?EAR:NG MOT!£)hl, a°
Appellant, IF F1LEO, Di81 3ED OF,
V. Case No. 97 -13
CITY OF EDGEWATER, etc.,
Appellee.
Opinion Filed January 23, 1998
Appeal from the Circuit Court
for Volusia County,
Patrick G. Kennedy, Judge.
Franz Eric Dorn, Deltona, for Appellant.
Donna L. McIntosh of Stenstrom, McIntosh, Colbert,
Whigham & Simmons, P.A., Sanford, for Appellee.
PETERSON, J.
Associates of Meadow Lake, Inc., ( "Associates ") appeals a final summary judgment
determining that it failed to establish a cause of action for inverse condemnation.
Associates, the developer of a residential subdivision, sought inverse condemnation against
appellee, the City of Edgewater, ( "Edgewater "), on the grounds that Edgewater's construction of
Whistle Stop Park without a properly functioning storm water management system had caused a
continuous flooding of Associates' property during the early part of 1991. Associates admits that
by late 1991, Edgewater's corrections to the water management system remedied Associates'
flooding problem. Associates contends that it is entitled to full compensation for the "temporary"
. 83/11/1998 16:41 4073244788 PAGE 03
taking because it was denied "the reasonable use and enjoyment" of the property in the flooded
condition.
Edgewater argues that Associates has failed to state a cause of action for inverse
condemnation by omitting any allegation that the flooding caused by Edgewater's faulty construction
of the nearby park was permanent in nature. The trial court agreed with Edgewater and entered
summary judgement in its favor, finding as a matter of law that Associates' allegations of a temporary
flooding did not state a cause of action for inverse condemnation.
Section 606(2][c], Nichols on Eminent Domain, states:
There is no absolute rule regarding the magnitude or duration of
flooding necessary to constitute a talang. It appears to be generally
recognized that a single flood of short duration, or occasional
temporary flowage, is not sufficient to constitute a taking.
Conversely, substantial periodic flooding, coupled with a likelihood of
recurrence, has been held to constitute a taking. Yet even this
distinction may be easier to state thart to apply. Most formulations of
the rule speak of permanent invasions, even though "predictable
periodocity" appears to be an acceptable substitute for "permanency."
The treatise then quotes as an example, a statement of the Florida rule:
[T]he flooding must constitute an actual, permanent invasion of the
land, amounting to an appropriation of, and not merely an injury to,
the property.
Nichols quoting Dudley v. Orange County, 137 So. 2d 859, 863 (Fla. 2d DCA 1962), cert. denied,
372 U. S. 959 (1963).
The Dudley court found that no taking occurred because the record failed to show that the
plaintiff's property was continuously flooded for a long period of time. The flooding that took place
in Dudley was not considered by the court to be so pervasive and continuous as to constitute a taking;
it was an injury to, rather than an appropriation oC the plaintiff's property. Dudley, however, did not
2
03/11/1998 16:41 4073244788 PAGE 04
consider whether a taking can occur when substantial flooding caused by a public body, is eventually
remedied. We fund, contrary to the trial court's order, that remedial action by the governmental
authority causing the flooding does not necessarily preclude an action for a temporary taking against
that authority.
InHilisborough County v Gutierrez, 433 So. 2d 1337 (Fla. 2d DCA 1983), the court found
that the plaintiffs farmlands had been taken by the county's failure to enforce a drainage plan for an
adjacent property. The plaintiff's home, however, was not deemed taken by the court because the
flooding of the house had since been remedied. In so ruling the court noted that, unlike federal law
and some state law, Florida does not recognize a "temporary" taking. By temporary, the court in
Gutierrez clearly meant temporary in the sense that the condition which caused the property to be
otherwise "taken" had been corrected. This is the "temporary" type of taking which the trial court,
in the instant case, held was not compensable under Florida law, at least where the taking occurs
through flooding. •
Gutierrez, however, was decided four years before the landmark United States Supreme
Court case ofFirst Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U. S. 304
(1987), cert. denied, 493 U. S. 1056 (1990). In First Evangelical, the Supreme Court recognized
a cause of for a temporary taking for the period of time a zoning regulation prevented a
property owner from having any reasonable use of his property. Interestingly, two years after
Gutierrez, and before First Evangelical, the author of the Gutierrez decision suggested in Pinellas
County v. Ashley, 464 So. 2d 176 (Fla. 2d DCA), rev. denied, 475 So. 2d 693 (Fla. 1985), that
Florida does recognize a cause of action for a temporary taking ( "[h]ad appellee made such a request
and had the county also denied that request ... then arguably the county's actions would constitute
3
03/11/1998 16:41 4073244788
PAGE 05
a temporary taking").
In 1990, the Florida Supreme Court in In re Forfeiture of 1976 Kenworth Tractor Trailer
Truck-Altered MI 576 So. 2d 261 (Fla. 1990), found that a meritorious claim of inverse
condemnation existed where the Florida Highway Patrol improperly seized a truck for a period of two
years. The fact that the physical appropriation ended after two years did not cause the "temporary
taking" to not be compensable under the Florida Constitution. In light of Kemvorth, First
Evangelical and Ashley, it appears to us that the non - recognition of temporary takings in Gutierrez
is no longer valid and that Florida now recognizes temporary takings as being compensable under its
constitution.
We conclude that the trial court erred in finding that Associates failed to state a cause of
action for inverse condemnation based upon the reasoning that Edgewater remedied the defects in
its storm water management system. If substantial periodic flooding occurred and was expected to
recur and such flooding denied Associates any reasonable use of its property because Edgewater
defectively constructed its project, a cause of action for inverse condemnation does lie. Because the
trial court's order presumed that no taking claim could be brought by Associates because the
condition allegedly caused by Edgewater had been remedied, the order dismissing Associates'
complaint with prejudice is vacated.
ORDER VACATED.
GOSHORN and HARRIS, JJ., concur.
1 See also Elliott v. Hernando County, 281 So. 2d 395, 396 (Fla. 2d DCA 1973) (flooding
constituted a taking as the condition was permanent in sense that rain is a condition that is reasonably
expected to continually re -occur in the future). Cf. Diamond K Corporation v. Leon County, 677
So. 2d 90 (Fla. 1st DCA 1996) (no taking because no continuing physical invasion and a lack of
complete deprivation of all reasonable use).
4
. 03/11/1998 16:41 4073244788 PAGE 06
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORID
FIFTH DISTRICT
ASSOCIATIONS OF MEADOW
LAKE, Inc.,
Appellant,
v. CASE NO. 97 -13
CITY OF EDGEWATER,
etc.,
Appellee.
DATE: March 4, 1998
BY ORDER OF THE COURT:
ORDERED that Appellee's MOTION FOR CERTIFICATION, filed
February 9, 1998, is denied.
I hereby Ceti i ghat the foregoing iS
(a true Gf pY "of : 'I rigival Court order.
FRANK J ":,$05 ` ,. ,
(COURT SEAL'' 1 .—
cc: Donna L. McIntosh, Esq.
Franz Dorn, Esq.
Krista A. Storey, Esq.
/ .&\
� � �. - CIRCUIT COURT
\L SEVENTH JUDICIAL CIRCUIT Y/ _
VOLUSIA COUNTY, FLORIDA ?/-
ASST RTES OF MEADOW LAKE, INC.,
a Florida corporation,
Plaintiff,
vs CASE NO 94 -31369 -CICI
DIVISION 31
CITY OF EDGEWATER,
a Florida Municipal corporation,
Defendant.
SUMMARY JUDGMENT
,., THIS CAUSE having come on to be heard before the Court on June 4, 1996, on the Motion
for Summary Judgment filed by the Plaintiff, Associated of Meadow Lake, Inc., ( "Associates "), and
the Court having considered the motion, affidavits, memoranda of law in support and in opposition
•• thereto, and having considered the argument of counsel, and being. otherwise fully advised in the
premises, it is hereby:
ORDERED and ADJUDGED as follows:
1. Associates' Motion for Summary Judgment related to the first, second, third and
fourth affirmative defenses filed by the Defendant, City of Edgewater ( "Edgewater "). Edgewater's
first and fourth affirmative defenses alleged that (1) Associates failed to state a cause of action in
inverse condemnation because Florida does not recognize a cause of action for inverse condemnation
arising from temporary flooding and (2) that Associates failed to allege any permanent flooding of
its property.
.+ ? Edgewater, in its second and third affirmative defenses. alleged that (I) Associates was
not the owner of the property at the time of the alleged taking and that (2) Associates lacked standing
to bring this inverse condemnation complaint These two defenses essentially alleged that .Associated
lacked standing to bring this suit.
3 Based upon the affidavits and the argument of counsel, the Court finds that there is
ell0
a material issue of fact raised by Edgewater's affidavits. At the hearing on Associates' Motion for
Summary Judgment, Associates conceded that the affidavits raised an issue of material fact. and
Associates withdrew its Motion for Summary Judgment as it related to the second and third
affirmative defenses. Accordingly, the Court makes no findings and rulings with respect to
Edgewater's second and third affirmative defenses.
4. Based upon the motion and the argument of counsel, the sole issue for this Court's
consideration at the hearing on the Motion for Summary Judgment was whether Florida recognized
a cause of action for inverse condemnation where the facts giving rise to the alleged taking result
from the temporary flooding of property.
5. In Paragraphs 11-17 of the Amended Complaint, Associates' alleges that it was
Edgewater's construction of Whistle Stop Park without a properly functioning stormwater
management system that caused the flooding described in Paragraph 18 of the Amended Complaint.
Paragraph 18 of Associates' Amended Complaint contains the allegation of flooding which, in
a�
relevant part, states: "During early 1991, stormwater discharge from Whistle Stop Park flowed onto
and flooded the property described in Exhibit "B." In Paragraph 25 of the Amended Complaint,
Associates alleges that in late 1991 Edgewater completed the corrective work to the stormwater
management system at Whistle Stop Park.
summar Judgment
Associates v. Edgewater Page 2
or
6 At the hearing, Associates' and Edgewater stipulated that the alleged floodin 2 was a
temporary condition
7 Assuming that each and every allegation in Associates' Amended Complaint is true.
die the Court finds as a matter of law, based upon the Memorandum of Law in Opposition to the Motion
for Summary Judgment and the argument of counsel, that Associates' allegations of temporary
flooding do not state a cause of action for inverse condemnation.
8 As early as 1924, the Florida Supreme Court, in Arundel Corporation v. Griffin, 89
Fla. 128, 103 So. 422 (Fla. 1924), held that the construction of dams by the Everglades Drainage
District did not constitute a taking where no permanent flooding was caused by such construction.
die
9. In the context of an inverse condemnation action based upon flooding, the flooding
must constitute an actual permanent invasion of land, amounting to an appropriation of, and not
merely an injury to, the property. 12 Fla. Jur., Eminent Domain, Section 70; 18 Am. Jur., Eminent
Domain, Section 134; and 2 Nicholas, Eminent Domain, Section 6.23(3). Bensch v. Metropolitan
�• Dade County, 541 So. 2d 1329 (Fla. 3rd DCA 1989); Dudley v. Orange County, 137 So. 2d 859 (Fla.
2nd DCA 1962), appeal dismissed, 146 So. 2d 379 (Fla. 1962), cert. denied, 372 U. S. 959 (1925);
Sullivan Selden v. City ofJacksonville, 28 Fla. 558, 10 So. 457 (1891); Department of Transportation
v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 1980); Poe v. State Road Department of Florida, 127 So.
2d 898 (Fla. lst DCA 1961); Hillsborough County v. Gutierrez, 433 So. 2d 1337 (Fla. 2nd DCA
1983); Leon County v. Smith, 397 So 2d (Fla. lst DCA 1981); review denied, 411 So 2d 383 (Fla.
1981); Kendry v. State Road Department, 213 So. 2d 23 (Fla. 4th DCA 1968).
, 10. In Bensch v. Metropolitan Dade County, 541 So. 2d 1329, (Fla. 3d DCA 1989), rev.
den., 549 So. 2d 1013, the Court affirmed dismissal of an amended complaint for inverse
Summary Judgment
Associates v. Edgewater Page 3
condemnation because Plaintiff did not allege that the flooding of the area was a permanent invasion
of the and that amounted to an appropriation of the land and not merely a temporary tloodino that
resulted in injury to the land_ or that the flooding was sufficiently extensive to constitute -- substantial
ouster " Id at 1331.
11 For Associates to prevail on its claim, there must be a permanent invasion of its land
amounting to an appropriation different in degree or character from damaged property and
substantially depriving Associates of the beneficial use of its property. Department of Transportation
v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 1980).
12. In Dudley v. Orange County, 137 So. 2d 859 (Fla. 2d DCA 1962), cert. denied, 372
U. S. 959, 83 S. Ct. 1014, 10 L. Ed. 2d 12 (1963), the court found that the flooding caused by the
county's dams which affected private property was not a taking because there was no showing of
continuous flooding.
13. In Hillsborough County v. Gutierrez, 433 So. 2d 1337 (Fla. 2d DCA 1983), the Court
affirmed the necessity for the flooding to be permanent. Only a permanent deprivation of an owner's
use of his property will support a claim for inverse condemnation. Flooding in a landowner's house
which was caused by county action and which was remedied at the owners expense was held not to
support a claim for inverse condemnation. Id. at 1340. The Court stated that since the flooding of
the house had been remedied, the ouster that occurred can only be labeled as temporary. Id.
14 In Kendry v. State Road Department, 213 So. 2d 23 (Fla. 4th DCA 1968), the Court
held that a permanent invasion of land had occurred where the State constructed a road and drainage
illa
facilities in such a mariner as to permanently cause great amounts of water from rain and natural
sources to flow on Plaintiff's property and into their residences amounting to an appropriation of the
Summary Judgment
Associates v. Edgewater Page 4
i\ rr
AMP
property This flooding was permanent in the sense that rain is a condition that is reasonably
expected to continually reoccur in the future. There were no allegations in Kendry that corrective
work was done by the State to the road and drainage facilities. Id
15. Most recently, in South Florida Water Management District v. Steadman Stahl, P.A.
Pension Fund, 558 So. 2d 1087. Review denied 574 So. 2d 143, the Court held that the evidence in
that case supported a conclusion that after a change in water management policies during. 1982,
dit
plaintiff's lands were continually flooded, thus constituting a "taking ". The evidence indicated that
plaintiff's property was flooded in 1982 and has remained in that condition.
16. Plaintiff's "damages" as opposed to a "taking" will not support an inverse
condemnation claim. Weir v. Palm Beach County 85 So. 2d 865 (Fla. 1956), The Board of Public
Instruction of Dade County v. Town of Bay Harbor Islands, 81 So. 2d 637 (Fla. 1955), Northcutt
v. State Road Department, 209 So. 2d 710 (Fla. 3d DCA), certiorari discharged, 219 So. 2d 687.
17. Based on the foregoing, the Court determines as a matter of law that Associates has
•• failed to establish a cause of action for inverse condemnation.
18. Each party shall bear its own costs and attorney's fees.
ORDERED and ADJUDGED that this action is dismissed with prejudice and that the Plaintiff,
Associates of Meadow Lake, Inc., a Florida Corporation, shall take nothing in this action.
DONE and ORDERED in Chambers in Daytona Beach, Volusia County, Florida this /
day of Xic,,e.i.0.1t4 , 1996.
Is/ PATRICK G. KENNEDY
Patrick G. Kennedy
Circuit Court Judge
Summary Judgment
Associates v. Edgewater Page 5
PrS
rr
rr
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by L
S Mail to Donna L S McIntosh, Esquire, Post Office Box 4848, Sanford, FL 32772- 4848, Krista
A Storey, Esquire, Post Office Box 100, Edgewater, FL 32132 -0100 and to Franz Eric Dorn.
Esquire, Post Office Box 307191, Deltona, FL 32739 -0564 this day of 19%
JIM
Judicial Assistant
IWO
f' \f i I es\d I m u: i t ies \edgewater \su mmarv. j dg: drI
Summary Judgment
Associates v. Edgewater Page 6
ar
a.:
DISTRICT COURT OF APPEAL
FIFTH DISTRICT
Associates of Meadow Lake, Inc.,
a Florida corporation,
Appellant,
CASE NO.: 97 -13
Lower Court Case #94- 31369 -CICI
vs.
CITY OF EDGEWATER,
a political subdivision of
the State of Florida,
Appellee. /
INITIAL BRIEF
Respectfully submitted,
FRANZ ERIC DORN, ESQUIRE
Attorney for Appellant
Florida Bar Number 307191
Post Office Box 390564
Deltona, Florida 32739 -0564
(904) 532 -1532
TABLE OF CONTENTS
PAGE(S)
dip
Table of Contents
Table of Citations ii - iii
Preface
iv
imp
Statement of Facts and the Case 1 -
Summary of the Argument 4
Argument: THE TRIAL COURT ERRED IN GRANTING 5 - 10
SUMMARY JUDGMENT BECAUSE A
TEMPORARY TAKING FOR FLOODING
a ,, EXISTS IN FLORIDA.
Conclusion 11
Certificate of Service 11
,.., Index to Appendix 12
i
TABLE OF CITATIONS
CASES PAGE(S)
Akzona, Inc. v. Southern Ry 7
314 N.C. 488, 494, 334 S.E.2d 759, 763
Anhoco Corp. v. Dade County 5, 6, 7, 8, 10
144 So. 2d 793 (Fla. 1962)
Carter v. Road Department 7
189 So. 2d 793 (Fla. 1966)
Casa Loma Springs Development Co. et al. v. Brevard County et al. 6
93 Fla. 601, 112 So. 60 [(1927)]
City of Silverton v. Potter 7
2002 App 415, 559 P.2d 1297 (1977)
Department of Transportation v. Jirik 7
498 So. 2d 1253, 1255 n.2 (Fla. 1986)
First English Evangelical Lutheran Church of Glendale v. Country of Los Angeles, CA. 8
482 U.S. 304, 107, S.Ct. 2378, 96 L.Ed. 2d 250
Gledhill v. State 9, 10
243 N.W. 909 (Neb. 1932)
Hernando v. Budget Inns of Florida, Inc. 9
555 So. 2d 1319 (Fla. 5th DCA 1990)
Hillsborough County v. Gutierrez 7
433 So.2d 1340 (Fla. 3rd DCA 1983)
In re Forfeiture of 1976 Kenworth Truck 6
„�. 576 So. 2d 261 (Fla. 1990)
Kimball Laundry Co. v. United States 8
338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949)
Rubano v. Department of Transportation 5, 7, 8
656 So. 2d 1264 (Fla. 1985)
Steinhardt v. Superior Court 7
-■ 137 Cal App. 575, 578, 70 P.2d 629 (1952)
ii
CASES PAGE(S)
Stock v. Cox 6
125 Conn. 405, 6 A.2d 346 [(1939)]
United States v. Dow 8
357 U.S. 17, 26, 78 S.Ct. 1039, 1046, 2 L.Ed.2d 1109 (1958)
United States v. General Motors Corp. 8
323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)
United States v. Petty Motor Co. 8
327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946);
iii
PREFACE
For brevity, clarity, and uniformity, the following reference words and symbols will
be sued throughout this brief:
The Appellant, Associates of Meadow Lakes, Inc. shall be referred to as the
Appellant or the landowner.
The Appellee, City of Edgewater, shall be referred to as the "Appellee ", "City ",
"City of Edgewater, or "Edgewater ".
References to the Record on Appeal will be identified through the symbol (T: ).
References to the Appendix shall be designated as (A: ).
del
AMP
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INN
MOP
Ait
iv
STATEMENT OF FACTS AND THE CASE
On June 14, 1996, the Plaintiff Associates of Meadow Lakes, Inc., filed a complaint
action against the City of Edgewater. (R: 1 -11)
IMP The action involved a claim for full compensation related to the unlawful flooding
of Associates' property by the City of Edgewater. As alleged in the complaint, (R- 39 -49)
associates assembled two separate parcels of property for the continued development of a
residential subdivision known as Meadow Lake. On June 27, 1991, Associates' predecessor
in interest conveyed certain real property to Associates which was necessary for the
r
maintenance of the subdivision's stormwater management system. That property is referred
to as parcel "A ", and a legal description of that property is attached as Exhibit "B" to the
complaint.
Sometime in late 1986 or early 1987, Edgewater developed plans to begin
construction of a public park known as Whistle Stop Park. That park consisted of
approximately 14 acres located adjacent to the western property boundaries of the Meadow
Lake subdivision. Edgewater's plans entailed the construction of public recreational
amenities, including, but not limited to, racket ball courts, basketball courts, baseball
diamonds, picnic facilities and public parking lots. (R: 39 -49)
On May 7, 1987, Edgewater applied to the St. Johns River Water Management
District ( "District ") for a surface water management permit. On June 8, 1987, the District
issued Edgewater's surface water management permit application, conditioned on Edgewater
constructing the stormwater management system according to the plans submitted with the
application. (R: 39 -49)
1
0.
That stormwater management system required the construction of a berm between
the park and the Meadow Lake subdivision. The berm and grading were designed to direct
water in a northern direction along the eastern boundary of the park to a retention pond
and then through a culvert and then to the north. (R: 39 -49)
The land on which the Whistle Stop Park was developed had a naturally formed crest
which bisected the property in a north -south alignment. Before Edgewater constructed these
improvements, stormwater discharges flowed to the east and west and were absorbed into
the ground before reaching adjacent owners. (R: 39 -49)
After Edgewater constructed its improvements, the impervious surface area of the
land on which Whistle Stop Park was constructed increased by approximately fifty percent
(50 %). A properly functioning stormwater management system was necessary to prevent
discharges and flooding onto adjacent properties. (R: 39 -49)
Although Edgewater completed construction of the park, it never constructed the
berm and grading required to direct stormwater runoff to the north of the Whistle Stop
Park, nor completed construction of the required retention pond or culvert. (R: 39 -49)
During early 1991, stormwater discharge from Whistle Stop Park flowed onto and
flooded the property described in Exhibit "B ". As alleged in the complaint, the flooding
primarily arose because Edgewater had violated the conditions of its stormwater
management permit by failing to construct the stormwater management system in
accordance with the permit and approved design plans. (R: 39 -49)
As a result of the flooding, the complaint alleges that Associates was denied the
reasonable use and benefit of the property and that Edgewater's operation of Whistle Stop
Park without a functioning stormwater management system resulted in stormwater
2
discharges which physically occupied and confiscated Associates' property to the extent that
it was deprived of the reasonable use and enjoyment of the same. It also alleges that the
flooding described constituted a taking of Associates' property without the payment of full
■• compensation as required by Article X, Section 6(a) of the Florida Constitution. (R: 39 -49)
On July 20, 1994, the Defendant filed a Motion to Dismiss contending that Plaintiff
lacked standing to file the suit and that the Plaintiff failed to state a cause of action.
AO (R: 62 -65) On September 19, 1994, the Motion to Dismiss was granted with leave to
amend. (R: 14) On September 30, 1994, Appellee filed an Amended Complaint. (R: 187 -
202) The Amended Complaint specifically alleged that the Appellant's land was recurrently
flooded during the better part of a one -year period. Id. On October 17, 1994, the City of
Edgewater filed an Answer and Affirmative Defenses. (R: 203 - 205) The Affirmative
Defenses essentially raised the same defenses in the Motion to Dismiss on January 19, 1996.
On April 17, 1996, the Appellant filed a Motion for Summary Judgment to strike the
Affirmative Defenses. (R: 268 - 270) Apparently, the Appellee, City of Edgewater did not
file a cross motion for summary judgment. On June 4, 1996, a hearing was held on the
Appellant's Motion for Summary Judgment. (R: 1 -38) The Parties essentially stipulated to
resolve the Motion on the threshold issue of whether Florida recognizes a temporary taking
for flooding. (R: 9) The Trial Court granted Summary Judgment in favor of the City of
Edgewater on the basis that no action for temporary taking exists for flooding in Florida.
3
,rr
�• SUMMARY OF THE ARGUMENT
The United States and Florida Supreme Courts both recognize physical temporary
takings and regulatory temporary takings across the board. This broad sweep includes
temporary takings in flooding cases. There is not one illogical, isolated exception
prohibiting temporary takings in flooding cases.
If harm caused by flooding is "temporary" in the sense that the flooding is a one -time
event that is not likely to reoccur at regular intervals, such that all beneficial use of the
property is not denied, then a temporary taking has not occurred.
On the other hand, "temporary" in the sense that floodwaters from the government
are permanently covering the landowner's property for a lengthy, albeit finite, period of
time, (in this case almost a year) and the denial of the use of the property from the flooding
.r
is virtually total in nature, then a temporary taking in inverse condemnation lies under
Florida law. It is the recurrence and the totality of the flooding, not its duration, that
determines "permanence" (or lack of temporariness) for flooding purposes. The duration
of the flooding for taking analysis is immaterial unless the flooding period is extremely brief
or the flooding event is a one -time occurrence or one that is unlikely to reoccur.
.. The City of Edgewater seems to advance the absurd proposition that the flooding
must continue to the end of time to be a "permanent" condition. The law does not demand
a showing of a perpetuity before a taking can be recognized. Rather, the City of Edgewater
has done the equivalent of acquiring a one -year lease in the property or a temporary
construction /flooding easement. The lower court erroneously granted summary judgment
and should have recognized that a temporary construction /flooding easement was taken from
the landowners.
4
ARGUMENT
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE A TEMPORARY TAKING FOR FLOODING
EXISTS IN FLORIDA.
The Supreme Court in Rubano v. Department of Transportation, 656 So. 2d 1264
(Fla. 1985), has clarified that temporary takings are actionable in a "wide variety of
circumstances ", including physical takings. Rubano found that a temporary taking was not
proven in the case before it because only one of the landowners' access points was taken and
that other access points remained open in the interim construction period. The Rubano
Court distinguished between total, temporary, physical, takings and partial, temporary,
physical damages by distinguishing seminal case of Anhoco Corp. v. Dade County, 144 So.
2d 793 (Fla. 1962), a case that recognized a temporary physical taking 35 years ago! Said the
Court:
We also find petitioners' reliance on Anhoco Corp. v. Dade County, 144
So.2d 793 (FIa.1962), misplaced. In Anhoco, the petitioners "owned the basic
fee in S.R. 826, with an easement of ingress and egress to and from its
.. theaters which abutted the land service road." Id. at 795. They also owned
the land on the north side of State Road 826, which contained two large
outdoor theaters, the Western Theater and the Eastern Theater. In August
1957, the Road Department, pursuant to statute and in carrying out its plan
to convert S.R. 826 into a limited access highway, dug a ditch across the
access road between the Eastern Theater and S.R. 826 was completely
eliminated and the Eastern Theater remained closed until October, 1958.
During this same month, the Road Department dug another ditch and access
to the Western Theater was completely destroyed.
When Dade County eventually filed a condemnation suit to take
Anhoco's fee in the right -of -way of former S.R. 826, as well as Anhoco's rights
of access, the Road Department had eliminated the land service road and
instead constructed a service road across the front of Anhoco's property which
provided Anhoco with direct access to the new limited access highway. The
county claimed that, since Anhoco now had access to the new highway, it
should not be entitled to compensation for the prior temporary loss of access
to its property. A jury agreed, and the Third District affirmed. We quashed
the Third District's hold on this issue and found that "the right of access was
destroyed [albeit temporarily] not merely regulated ". We held that Anhoco
5
was entitled to damages for the destruction of its rights of access prior to the
establishment of the new service road. Id. 397 P.2d at 798.
Here, unlike the situation in Anhoco, Petitioners' access to S.R. 84 was
not completely destroyed, even temporarily. Rather, the lanes of the existing
highway, which abutted the properties, were temporarily changed into a
service road which provided continuing access to the existing highway, S.R. 84.
At no time in Anhoco did the government provide the property owners with
a temporary service road with access to the highway. Rather, the loss of
access was complete, although temporary. In fact, we noted in Anhoco that
the completion of the service road, which provided Anhoco with access to the
highway, had effectively remedied Anhoco's access problem:
In this instance, the right was not permanently destroyed. However,
the fact that the condemning authorities subsequently provided a substituted
type of access which should have been provided originally will not suffice to
compensate for the harm which was done in the interim. Stock v. Cox, 125
Conn. 405, 6 A.2d 346 [(1939)]; Casa Loma Springs Development Co. et al. v.
Brevard County et al. 93 Fla. 601, 112 So. 60 [(1927)].
The Supreme Court of Florida also found a cause of action in inverse condemnation
for a temporary taking involving (two -year) physical confiscation of a vehicle. In re
Forfeiture of 1976 Kenworth Truck, 576 So. 2d 261 (Fla. 1990).
It is illogical to recognize temporary physical takings (non- flooding cases) but not
temporary flooding cases that deprives the owner of total use of his property for a distinct
period of time. To the contrary, "flooding cases are similar in nature and focus to other
physical invasion cases." 6 Nichols, Eminent Domain, 5 6.06(2)(c). To the Appellant, one-
40 year flooding case is no different from the one -year deprivation of access in Anhoco or the
two -year confiscation of a vehicle in Kenworth.
In flooding cases, the terms "permanent" and "temporary", have different meanings
with respect to the quality of the flooding as compared to the meaning of those terms, with
respect to the duration or finite nature of the taking in distinguishing a permanent taking
a temporary taking. "Permanent" in the context of floods means a flooding condition that
.. is reasonably expected to reoccur, which that causes a loss of all beneficial use of property.
6
Hillsborough County v. Gutierrez, 433 So.2d 1340 (Fla. 3rd DCA 1983). Permanency under
imp
Gutierrez is not governed by duration or perpetuity. While the duration of the flooding may
have some relevance in limited circumstances, it is generally immaterial. See, 6 Nichols
Eminent Domain 6.05[3]. In Gutierrez, a temporary taking was denied because the flooding
was a one -time event. Accord: Akzona, Inc. v. Southern Ry, 314 N.C. 488,
494, 334 S.E.2d 759, 763. ( "Single instance of flooding with no possibility of recurrence, even
after remedial action taken, did not constitute a taking. ") Gutierrez does not rule out a
temporary taking where the flooding recurred over a substantial, but finite period of time,
as in the instant case.
.. In Gutierrez, the landowner was not ousted from the property. That is not the case
when water is continuously on the property for almost one year as in the case at bar. The
City essentially took a one -year lease on the Appellant's property. See, City of Silverton v.
Potter, 2002 App 415, 559 P.2d 1297 (1977), or a one -year temporary construction easement
to perfect their drainage work. See, Steinhardt v. Superior Court, 137 Cal App. 575, 578,
70 P.2d 629 (1952). Both property interests named above are compensable in straight
40 eminent domain proceedings. See, Carter v. Road Department, 189 So. 2d 793 (Fla. 1966).
Inverse condemnation actions are governed by the same principles that apply to Eminent
Domain proceedings. Department of Transportation v. Jirik, 498 So. 2d 1253, 1255 n.2 (Fla.
1986). The use of the Appellant's property was taken for one year. Even though Edgewater
fixed the problem after a year, they are still obligated to pay for one year's denial of the use
of the property. Anhoco, supra. Gutierrez has been impliedly overruled to the extent it
conflicts with Anhoco and Rubano.
7
Edgewater has argued below that temporary takings are limited to regulatory takings.
Even if the Anhoco and Rubano decisions did not exist that argument is without merit.
The United States Supreme Court in First English Evangelical Lutheran Church of
,,,• Glendale v. Country of Los Angeles, CA., 482 U.S. 304, 107, S.Ct. 2378, 96 L.Ed. 2d 250,
has recognized a cause of action for a temporary regulatory taking. First English essentially
addressed the issue of whether its ruling should be confined to the area of regulatory
takings. As the majority noted, it found "substantial guidance in [direct condemnation] cases
where the government has not temporarily exercised its right to use private property." 482
U.S. at 318, 107 S.Ct. at 2387, 96 L.Ed.2d at . The Court cited to United States v. Dow,
357 U.S. 17, 26, 78 S.Ct. 1039, 1046, 2 L.Ed.2d 1109 (1958); Kimball Laundry Co. v. United
States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. Petty Motor Co.,
327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946); United States v. General Motors Corp., 323
U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945). According to the Court, "These cases reflect
the fact that 'temporary' takings which ... deny a landowner all use of his property ... are
not different in kind from permanent takings, for which the Constitution clearly requires
compensation." None of the cases cited by the majority involved a regulatory taking.
Edgewater is creating a distinction which even the Supreme Court did not recognize
in First English. In fact, the dissenters in First English, citing to the majority's decision,
noted that "A temporary interference with an owner's use of his property may constitute a
taking for which the Constitution requires that compensation be paid. At least, with respect
to physical takings, the Court has so held." (Emphasis added). Id. at 330, 107 S.Ct. at 2393,
96 L.Ed.2d at
8
die
r. The dissenters further argued, "The cases that the Court relies upon for the
proposition that there is no distinction between temporary and permanent takings, see ante,
at 2387, are inapposite, for they all deal with physical takings - -where the diminution of value
test is inapplicable. None of those cases are controversial, the state certainly may not
occupy an individual's home for a month and then escape compensation by leaving and
moo
declaring the occupation temporary'." (Footnotes omitted. Id. at 332, 107 S.Ct. at 2394,
•r 96 L.Ed.2d at
This Court has also recognized the concept of a temporary regulatory taking.
Hernando v. Budget Inns of Florida, Inc., 555 So. 2d 1319 (Fla. 5th DCA 1990). Edgewater
incorrectly claims these cases have no bearing on physical taking cases.
Out of state flooding cases also support a temporary taking analysis. One of the best
examples is Gledhill v. State, 243 N.W. 909 (Neb. 1932). In Gledhill, the court upheld a
compensation award as a result of the state's erection of a temporary bridge over a stream
which had caused ice to build up against the bridge thereby damaging the stream causing
water to back up over the landowner's property. The court reasoned:
The fact that the damage in this case was of a temporary nature and
caused only by a temporary bridge constructed for the use and convenience
of the public does not prevent a recovery. 1 Nichols, Eminent Domain (2d
Ed.) p. 309, says: "An entry on private land may constitute a taking, though
temporary in its nature and for only a temporary purpose. A city could not,
for example, while it was building a new city hall on the site of an old one,
formally divest the owner of a neighboring building of the use of his property
for a year and employ it for a temporary seat of government without
compensation for depriving him of the use of his land and building.
Accordingly, it is held that land or other property cannot be actually put to
use by public authority for a temporary purpose without compensating the
owner."
243 N.W. at 910.
9
In the instant case, the parties stipulated that the property was flooded for almost a
year. The City cannot occupy that property for one year without paying just compensation.
Anhoco, supra; Gledhill, supra.
The Trial Court's ruling is at odds with United States Supreme Court, Florida
Supreme Court Authority, as well as precedent from this District. Nichols, and out -of -state
,0 authority also support Appellant's position. The Summary Judgment ruling that there is no
action for a temporary taking for flooding in Florida is incorrect as a matter of law.
sis
10
CONCLUSION
The Trial Court's conclusion on Summary Judgment should be reversed and the case
should be remanded so that the other factual and legal issues can be resolved.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and accurate copy of the foregoing Initial Brief,
has been furnished by regular U.S. Mail to Donna L.S. McIntosh, Esquire, Post Office Box
4848, Sanford, Florida 32772 -4848, and Krista A. Storey, Esquire, Post Office Box 100,
Edgewater, Florida 32132 -0100, this 26th day of March, 1997.
Respectfully submitted,
��z 74x.4
✓Y
FRANZ ERIC DORN, ESQUIRE
Attorney for Appellant
Florida Bar Number 307191
Post Office Box 390564
910 Deltona, Florida 32739 -0564
(904) 532 -1532
(904) 532 -0066 FAX
■r
AO
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AMP
INDEX TO APPENDIX
ITEM PAGES
1. Summary Judgment Al -A6
•
AMP
12