2d DCA Upholds Extra-Jurisdictional Use of Eminent Domain for Road Expansion

Kirkland et al v. City of Lakeland, 3 So.2d 398 (Fla. 2d DCA 2009)

In Kirkland et al v. City of Lakeland, the 2d District upheld the legal right of the City to maintain eminent domain proceedings against land outside the city boundaries. Important to the Court’s decision was the fact that the road involved was identified as one that required expanded capacity for concurrency purposes in a joint planning agreement with the county.

Fla Supremes Release Opinion in Walton County Beach Case

I'll provide analysis later (hint- IMHO Justice Lewis' dissent is dead on and the majority opinion is not), but here's the link to Walton County v. Stop the Beach Renourishment.

Gypsies, Tramps and Thieves - Maybe We'll Find Out if Section 95.361 is Constitutional

In Charity et al v. Sarasota County, the 2d DCA reversed summary judgment in favor of the County in a case that involved where the owners of property seperated from a canal by a street that was established by common law dedication have riparian rights to the street. The basic facts (and similar cases have been litigated way more frequently than you might believe) is that you have lots, a street, and then lands on the other side of the street (very thin strip) and then a canal. I won't both to characterize the original plats because all the players in this are home town to me, but let's just say that based on practice and history, the landowners had good reason to believe that the lands between the road and the seawall were theirs, but the land records can be characterized as ambiguous.

The court had ruled based on (the court found) the misapplication of an earlier case (Kreiger v. Town of Longboat Key) involving the extent of rights in lands where property that is subject to a plat is conveyed by metes and bounds. The court in that case found that the later sale of the property by metes and bounds excluded rights that were associated with the land under a plat; it found that the later sale intentionally excluded the rights and appurtant lands under the plat.

Here, the court found that the landowners would not have automatically lost their rights to the lands under the conveyances, and that the conveyances referenced the plats (as well as metes and bounds extensions). I think what you have in some of the cases are deeds that have lines like "Lot 9 and the S 20 feet of lot 10 less lands for easements as recorded at Book x Page y. "

The circuit court bought the argument that this kind of sale took them out of the ownership of the lands under the rights of way and the riparian rights to the other side (here, the rule is that if there are no landowner/lotowners on the far side of the street to own to the 1/2 way point, the single adjacent owner gets it all). The 2d DCA overturned it.

The County had also argued, but the circuit court did not reach and the 2d DCA expressly did not consider, that it had total ownership of the road under the "dedication statute," 95.361. That statute provides that in cases like this where its not clear who opened the road, if the county maintains it for 7 years, there is a presumption of dedication for the width of the maintained right of way, and that dedication would include the entire fee. The statute provided a limited window to challenge the operation of the statute.

So the County's argument is that it owns the road by operation of the statute and that this breaks the ownership of the strip of land between the road and the seawall.

This sets up a potential for a major confrontation over the validity of the statute. The statute was created to safeguard public rights to government maintained roads. But by granting full title, it actually takes land without compensation. Moreover, by taking title to roads subject to common law dedication (which granted right of way to the government, but maintained ownership in the adjoining lots or the grantor), this would disturb existing expectations to a huge extent.

As applied in cases where the government opened a road years ago and has maintained it, it creates a useful way to establish that a road is in fact public. In cases where the right of way already has been dedicated, it is not much more than outright theft of the fee, and serves no purpose other than to extinguish the residual rights of the adjoining landowners.

On remand, the circuit court's resolution of this issue may create a major confrontation over whether the statute (1) applies to roads that were dedictated; (2) is an unconstitutional taking under the Florida constitution; or (3) is an unconstitutional taking under the US constitution.

2D DCA Upholds Blight/ED Decision in Probably the Last CRA Use of Eminent Domain

As reported earlier, the Legislature enacted a wildly over-reactive statute limiting the use of eminent domain by local governments and CRAs.

In this case, Fulmore et al v. Charlotte County, here's the link, the Court upheld the trail court's affirmance that the County's determination of blight was valid under the Community Redevelopment Act. It also held (consistent with past decisions) that the elimination of blight (as defined by the statute) had a valid public purpose.

One sore spot - the plaintiffs had challenged the statute as impermissibly vague because several of the criteria are vague. But the challenge and the decision are predicated on the wrong legal arguments regarding vagueness.

The court held that some of the criteria are objective and then stated that the governing law is that if some valid criteria are available, the entire statute can't be struck for vagueness - i.e., no facial challenge:

Â?[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications.Â? Brown v. State, 629 So. 2d 841, 843 (Fla. 1994) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982)). The LandownersÂ? acknowledgement that several of the blight factors are objective and quantifiable necessarily means that section 163.340(8) is not vague in all of its applications. Thus, their facial constitutional challenge fails.

The problem with this is that the court is citing criminal/1st amendment case law instead of regulatory caselaw. A regulation is impermissibly vague if it vests unbridled discretion in the administrative body implementing it. (OK, I'll go get all the cases later and cite them, but, really, that's the law.) There are actually tseparateate but related probleproblemsems: first, that such a delegation puts legislative discretion into the hands of the agency, and, second, that it creates unreviewable decisions when implements.

This is a big deal when you get to regulatory applications of law. No agency should be able to rely on a vague standard to deny a permit simply because there are objective standards in the ordinance, statute or rule. That's true whether the standard is a comprehensive plan element or a criteria for a special exception.

But this is irrelevant to a CRA/blight determination, for one, simple reason: The Community Redevelopment Act vests LEGISLATIVE power, authority and discretion into the local government to make the blight determination. It's NOT a grant of administrative authority. This gets confused today because local governments have broad home rule powers, but back when the Act was adopted, it granted legislative authority and discretion. And the "blight" finding need not be supported by competent substantial evidence (an ADMINISTRATIVE standard), but only by some measure of evidence such that the determination is not arbitrary and capricious. (again I don't have the cite readily available, but I'm pretty sure that there was a Jacksonville case from the 50's or early 60's dead on this point).

So it seems that the entire case was litigated on a badly mistaken view of the structure of the CRA, leading to a mistaken notion of which "vagueness" test should apply, and also of the very nature of what kind of evidentiary inquiry was appropriate.

So, the case is probably irrelevant to future applications regarding eminent domain, but could leave a bad precedent on the vagueness issue.