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HomeMy WebLinkAboutDocumentation_Regular_Tab 08B_9/13/1990VILLAGE OF TEQUESTA Post Office Box 3273 • 357 Tequesta Drive Tequesta, Florida 33469-0273 • (407) 575-6200 FAX: (407) 575-6203 MEMORANDUM: TO: Village Council FROM: Thomas G. Bradford DATE: June 7, 1990 SUBJECT: Proposed Master Plan Action Plan Appearing below, please find a proposed action plan to serve as a guide as we proceed toward resolution of the future of the Master Plan area. 1-1-90 to 9-1-90 Develop zoning and site regulations to implement Master Plan. Options: o Incentive Zoning o Modify existing zoning regulations o Create new zoning regulations per the Master Plan o Other 6-1-90 to 7-15-90 Prepare a sketch plan indicating alternatives to the Master Plan based on input from property owners including roadway locations, public building locations (library site) and public parking areas. 6-14-90 Village Council authorization of a letter expressing interest to the Northern Palm Beach County Water Control District to include the Master Plan area within their Unit of Development. This would begin the NPBCWCD process. See attached NPBCWCD process pert chart. 6-14-90 to 7-31-90 Begin consultations with Village Attorneys regarding condemnation alternatives, reviewing Community Redevelopment Agency or other appropriate municipal powers. 6-14-90 Ascertain extent of engineering, surveying, and mapping for creation of Right -of -Way Protection Ordinance. Memorandum: Village Council June 7, 1990 Page - 2 --------------------------- 7-21-90 Conduct staff meeting with Image Network to review matters prior to possible mini-charrette. 8-1-90 Consider holding mini-charrette in Coral Gables with Image Network, assuming Village Council acceptance of action plan. 8-1-90 Complete draft Right -of -Way Protection Ordinance. 8-14-90 Finalize Right -of -Way Protection Ordinance per any mini- charrette changes, as necessary. 8-23-90 First Reading of Right -of -Way Protection Ordinance. 9-1-90 Completion of draft Zoning Ordinance to implement Master Plan. 9-13-90 Second and Final Reading of Proposed Right -of -Way Protection Ordinance. 9-13-90 First Reading of Proposed Zoning Ordinance implementing Master Plan. 9-27-90 Second Reading of Zoning Ordinance implementing Master Plan. 9-27-90 Approval of motion of Village Council lifting Zoning in Progress. 9-27-90 Village Council authorization to execute Agreements to initiate preliminary engineering and planning for infrastructure to be provided by NPBCWCD. Upon execution of such Agreements, infrastructure development would be handled by NPBCWCD with new development approvals controlled by the Village Council. TGB/ jmm cc: Jack L. Horniman, Planning Consultant John C. Randolph, Village Attorney Wendy K. Harrison, Administrative Assistant to the Village Manager Richard Staudinger, P.E., Gee & Jenson Scott D. Ladd, Building Official Pete Pimentel, Executive Director, NPBCWCD Jaime Correa, Image Network JONES, FOSTER, JOHNSTON & STUBBS, P.A. ATTORNEYS AND COUNSELORS FLAGLER CENTER TOWER 505 SOUTH FLAGLER DRIVE ELEVENTH FLOOR P. O DRAWER E LAARY 8 ALE%ANDER GEORGE H BAILEY MK;MAELT KRANZ GLAIR R LrrTLEJOHN III WEST PALM BEACH, FLORIDA 334023475 ULLER NHAEL xRACKEN 4 D BROWN JOHN BL (407) 659.30W RU7H P CLEMENTS SCOTT M C PAMEU A MCNIERNEV TIMOTHY E MONAGHAN FAX 4O7� E32 1454 ( • / NTON JOYCE A CONWAY GUY RASIDEAU MARGARETL COOPER JOHN C RANDOLPH BYROH R CORNWELL PAULA REVENE REBECCA G DOANE ANDREW ROSS RANDY D ELLISON STEVEN i ROTHMAN L MARTIN FLANAGAN PETER A SACHS sc'* A GLAZIER JOEL T STRAWN WRITER'S DIRECT LINE: LORE HANDELSMAN SCOTT G HAWKINS SIDNEY A STUBBS. JA ALLEN R TOMLINSON THORNTON M HENRY JOHNS TRIMPER PETER S HOLTON MICHAEL P WALSH HAARY A JOHNSTON, 11 H ADAMS WEAVER J A JURGENS PAUL C WOLFE MARK 8 KLEINFELD MARC S WOOLF . \ CHAR 8 KOVAL c August 28, 1990 _ C Mr. Thomas G. Bradford Village Manager Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469 RE: Joint Ventures, Inc. vs Dept. of Transportation, 15 FLW S246 (Case No. 71,878 April 26, 1990) Our File No. 13153.1 Dear Tom: 11 R BRUCE JONES 1YpL1BM HENRY F LRANTHAL I9W-1962 HARRY ALLISON JOHNSTON 1896.11163 RETIRED WILL" A. FOSTER OTHER LOCATION 54 N E FOURTH AVE DELRAY BEACH. FLORIDA 33463 Pursuant to your request, enclosed please find a copy of Join Ventures Inc vs Department of Transportation, 15 FLW S246 (Case No. 71,878 April 26, 1990), which has recently been decided by the Florida Supreme Court. In Joint Ventures, the Florida Supreme Court determined that Sections 337.241(2) and (3), Florida Statutes (1987), unconstitutionally permitted the state to take private property without just compensation. Section 337.241(1), Florida Statutes, permits the Department of Transportation (DOT) to acquire rights - of -way by preparing and recording maps of reservation which delineate the limits of proposed rights -of -way for the eventual widening of roads. Section 337.241(2), Florida Statutes, provided in pertinent part that 11(u]pon recording the map of reservation, such map shall establish (a) a building setback line from the centerline of any road existing as of the date of such recording; and no development permits . . . shall be granted by any governmental entity . . . Mr. Thomas G. Bradford August 28, 1990 Page 2 (b) an area of proposed road construction within which development permits . . . shall not be issued for a period of five (5) years from the date of recording such map . . . to In 1985, DOT recorded a map of reservation in accordance with the statute. The First District Court of Appeal in Joint Ventures agreed with the DOT who contended that the legislature did not "take" the property by virtue of Section 337.241, but merely regulated the property as a valid exercise of its police power. The First District Court of Appeal concluded that the challenged subsections were constitutional because Joint Ventures had a remedy by way of an action for inverse condemnation. The state is required to compensate property owners under two circumstances. The state must pay when it confiscates private property for common use under its power of eminent domain. The state must also pay when it regulates private property under its police power in such a manner that the regulation effectively deprives the owner of the economically viable use of that property. Eminent domain involves the "taking" of property because of its need for the public use while regulating private property under its police power is to prevent use of the property in a manner that is detrimental to the public interest. Although regulation under such police power will always interfere to some degree with the property use, compensation must be paid only when that interference deprives the owner of substantial economic use of his or her property. The Florida Supreme Court in Joint Ventures determined that the statute's purpose was not to prevent an injurious use of private property, but to reduce the cost of acquisition of property should the state later decide to condemn such property. Joint Ventures 15 FLW at S247. The court perceived no valid distinction between "freezing" property in this fashion and deliberately attempting to depress land values in anticipation of an eminent domain proceeding, which has consistently been prohibited. 1-�L: The court in Joint Ventures also determined that the potential for an action for inverse condemnation was not an adequate remedy since that remedy affords the affected property owner an after -the -fact remedy where there has already been a taking by regulation. Joint Ventures, 15 FLW S247-248. Inverse condemnation is not a substitute for eminent domain protection facilitated by Chapters 73 and 74. As you can see, the Florida Supreme Court's decision in Joint Ventures provides law that is contrary to the Village's intent to Mr. Thomas G. Bradford August 28, 1990 Page 3 reserve rights -of -way to implement its Master Plan. Due to this recent decision, it may be necessary for the Village Council to reassess how it will proceed with the Master Plan. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A. Pamela A. McNierney PAM/ss 15 FLW S246 _ SUPREME COURT OF FLORIDA April 27, 1990 time sufficiency is declared by ARPC. (3) This fee deposit shall set up an account for the applicant with the Council. The Council shall keep accurate records of the actual costs which shall be deducted from the deposit fee, with arty amount remaining refunded to the applicant. If the coat of the review exceeds the fee deposit, the applicant shall be liable to the Council for 100 percent of the review costs. (4) No foes or costs are required of an applicant for the initial pre - application conference required by 380.06(7). Further pre -application assistance shall he provided at the applicant's request. Charges for this assistance will be based upon reasonable fees for professional services and mats incurred. A deposit shall be required. 'Suction 380D6(23)(d), Florida Statutes (1989), provides: (d) Regional planning agencies which perform development -of - regional -impact and Florida Quality Development review are authorized to assess and collect fees to fund the costs, direct and indirect, of conducting the review process. The state land planning agency shall adapt rules to provide uniform criteria for the assessment and collection of such fees. The rules providing uniform criteria shall not be subject to rule challenge under s. 1220.54(4) or to drawout proceedings under s. 120.54(17), but, once adopted, shall be subject to an invalidity challenge under s. 120.56 by substantially'atTecLed persons. Until the state land planning agency adopts a rule implementing this paragraph, rules of the regional planning councils currently in effect regarding teas shall remain in effect. Fees may vary in relation to the type and size of a proposed project, but shall not exceed S75;0W, unless the state land planning agency, after reviewing any disputed expenses charged by the regional planning agency, determines that said expenses were reasonable and necessary for an adequate regional review of the impacts of a project. Regional planning agencies shall not collect fees from an applicant to fund the cost of appeals filed pursuant to s. 380D7. Administrative law —Department of Transportation —Statute prohibiting issuance of development permits for period of up to ten years for new construction on property which was encom- passed in DOT map of reservation —Statute unconstitutionally permits state to take private property without compensa- tion —Statute is not an appropriate regulation under the state's police powers but is merely an attempt to circumvent constitu- tional and statutory protections afforded private property own- ership under the principles of eminent domain —State may not use its police power to deliberately restrict land use before the commencement of condemnation proceedings without the duty of compensation —Fact that property owner has remedy by way of action for inverse condemnation does not cure statute's failure to expressly provide for compensation —Remedy through inverse condemnation is not equivalent to property owner's remedy under doctrine of eminent domain JOINT VENTURES, INC., Petitioner, v. DEPARTMENT OF TRANSPOR- TATION, etc., Respondent. Supreme Court of Florida. Case No. 71,878. April 26, 1990. Application for Review of the Decision of the District Court of Ap- peal —Certified Great Public Imporunce. First District —Case No. BN-310. S. Cary Gaylord and Alan E. DeSerio of Brigham, Moore, Gaylor, Wilson, Ulmer, Schuster de Sachs, Tampa, Florida, for Petitioner. Maxine F. Ferguson, E Appellate Attorney and Thomas H. Bateman, 111, General Counsel, Department ! of Transportation, Tallahassee, Florida, for Respondent. s(BARKETT, J.) We have for review Joint Ventures, Inc. v. De- partment of Transportation, 519 So.2d 1069 (Fla. 1st DCA i 1988), in which the district court asked in a certified question k whether subsections 337.241(2) and (3), Florida Statutes (1987), unconstitutionally permit the state to take private property with- out just compensation.I We answer the question in the afftrma- Live, finding those subsections invalid as a violation of the fifth amendment to the United States Constitution and article X, sec- tion 6(a) of the Florida Constitution. Joint Ventures, Inc., owned 8.3 acres of vacant land located adjacent to Dale Mabry Highway in Tampa. Joint Ventures had contracted to sell this property contingent upon the buyer's ability to obtain the permits necessary to develop it. Thereafter, the Department of Transportation (DCJT) determined that 6.49 acres of this vacant land was needed for storm water drainage associat- ed with the planned widening of the highway. In November 1985, DOT recorded a map of reservation in accordance with subsec- tion 337.241(1), Florida Statutes (1987).= DOT's recordation of the map of reservation precluded the issuance of development permits for this property under subsection 337.241(2): Upon recording [the map of reservation], such map shall establish: (a) A building setback line from the centerline of any road existing as of the date of such recording; and no development permits, as defined in s. 380.031(4),I'l shall be granted by any governmental entity for new construction of any type or for renovation of an existing commercial structure that exceeds 20 percent of the appraised value of the structure. No restric- tion shall be placed on the renovation or improvement of existing residential structures, as long as such structures continue to be used as private residences. (b) An area of proposed road construction within which development permits, as defined in s. 380.031(4), shall not be issued for a period of 5 years from the date of recording such map. The 5-year period rrwy be extended for an additional 5-year period by the same procedure set forth in subsection (1) - (Emphasis supplied.) Joint Ventures contested DOT's reservation in an administra- tive hearing pursuant to subsection 337.241(3).' The heanng officer found against Joint Ventures and DOT later adopted the officer's findings and conclusions in a Final Order. On appeal to the district court, Joint Ventures argued that the moratorium imposed by section 337.241(2) amounted to a taking because the statute deprived it of substantial beneficial use of its property. In opposition, DOT contended that the legislature did not "take" but merely "regulated" in a valid exercise of the police power. The distract court concluded that the challenged subsec- tions were constitutional because Joint Ventures had a remedy by way of an action for inverse condemnation.' Generally, the state must pay property owners under two cir- cumstances. First, the state must pay when it confiscates private property for common use under its power of eminent domain. Second, the state must pay when it regulates private property under its police power in such a manner that the regulation effec- tively deprives the owner of the economically viable use of that property," thereby unfairly imposing the burden of providing for the public welfare upon the affected o•.vner.' Under the power of eminent domain, the state has the inherent nght to take private property for public use without the consent of the owner. Shavers v. Duval Counry, 73 So.2d 684, 688 (Fla. 1954). In so doing, the state is obliged to make full compensa- tions Indeed, the Florida Legislature has implemented a com- plete statutory scheme in chapters 73 and 74, Florida Statutes (1987), to assure the payment of such compensation. However, as Justice Holmes recognized, the "seemingly abso- lute protection" of required compensation is "qualified" by an- other inherent power of the state, the police power. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Although both powers impact on pnvate property, there is a distinction between the power of eminent domain and the police power: [T)he former involves the taking of property because of its need for the public use while the latter involves the regulation of such property to prevent its use thereof in a manner that is detrimental to the public interest. J. Sackman, Nichols' Tire Law of Eminent Domain d 1.47_ 21 April 27, 1990 SUPREME COURT OF FLORIDA 1-133 to 1-134 (rev. 3rd ed. 1988) (footnotes omitted, emphasis in original). Although regulation under the police power will always inter- fere to some degree with property use, compensation must be paid only when that interference deprives the owner of substantial economic use of his or her property. In effect, this deprivation has been deemed a "taking."Agin v. City of Tiburon, 447 U.S. 255, 260 (1980); Penn Cent. Transp. Co. v. City of .Vew York, 438 U.S. 104, 138 n.36 (1978). Thus, when compensation is claimed due to governmental regulation of property, the appropnate inquiry is directed to the extent of the interference or deprivation of economic use. Here, however, we do not deal with a claim for compensation, but with a constitutional challenge to the statutory mechanism. Our inquiry requires that we determine whether the statute is an appropriate regulation under the police power, as DOT asserts, or whether the statute is merely an attempt to circumvent the consti- tutional and statutory protections afforded private property own- ership under the principles of eminent domain. Under its police power, the state is deemed to enact laws for the protection of the general welfare, that is, the public safety, health, morals, comfort, and general well being. Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 159, 5 So.2d 433, 437 (1941).9 In the broad sense, when the state "takes" property, whether through its police power or power of eminent domain, it does so to promote the general welfare. Analytically, the two have been discussed in different terms. Regulation is analyzed in terms of the exercise of police power, whereas acquisition is analyzed in terms of the state's power of eminent domain.10 First English Evangelical Lutheran Church v. County of Los Angeles, ` 107 S. Ct. 2378, 2389 (1987); Agin, 447 U.S. at 260; Penn Cent. Transp. Co., 438 U.S. at 136; Pennsylvania Coal Co., 260 U.S. at 413; art. X, § 6(a), Fla. Const. In this case, DOT suggests that section 337.241 is a perrrtissi- ble regulatory exercise of the state's police power because it was necessary for various economic reasons. For example, without a development moratorium, land acquisition costs could become financially infeasible. If landowners were permitted to build in a transportation corridor dunng the penod of DOT's preacquisition planning, the cost of acquisition night be increased. Rather than supporting a "regulatory" characterization, these circumstances expose the statutory scheme as a thinly veiled attempt to "acquire" land by avoiding the legislatively mandated procedural and substantive protections of chapters 73 and 74. We find analogous the distinction drawn by the court in San Antonio River Authoriry v. Garrett Brothers, 528 S.W.2d 266, 273-74 (Tex. Ct. App. 1975): Illn exercising the police power, the governmental agency is acting as an arbiter of disputes among groups and individuals for the purpose of resolving conflicts among competing inter- ests. This is the role in which government acts when it adopts zoning ordinances, enacts health measures, adopts building codes, abates nuisances, or adopts a host of other regulations. . But where the purpose of the governmental action is the prevention of development of land that would increase the cost of a planned future acquisition of such land by govern- ment, the situation is patently different. Where government acts in this context, it can no longer pretend to be acting as a t neutral arbiter. It is no longer an impartial weigher of the merits of competing interest among its citizens. Instead, it has placed a heavy governmental thumb on the scales to insure c that in the forthcoming dispute between it and one, or more, of its citizens, the scales will tip in its own favor. . To permit government, as a prospective purchaser of land, to give itself such an advantage is clean e g y inconsistent with the 15 FLW S247 doctrine that the cost of community benefits should be distrib- uted impartially among members of the community. Indeed, the legislative staff analysis candidly indicates that the statute's purpose is not to prevent an inj.unous use of private prop- erty, but rather to reduce the cost of acquisition should the state later decide to condemn the property. Staff of Fla. H.R. Comm. on Transp., H.B. 314 (1985) Staff Analysis (March 25, 1985). We perceive no valid distinction between "freezing" property in this fashion and deliberately attempting to depress land values in anticipation of eminent domain proceedings. Such action has been consistently prohibited. Board of Commis v. Tallahassee Bank & Trust Co., 108 So.2d 74, 86 (Fla. 1 st DCA 1958), writ quashed, 116 So.2d 762 (Fla. 1959). Accord Kissinger v. City of Los Angeles, 161 Cal. App.2d 454, 462, 327 P.2d 10, 16 (1958); Robyn v. City of Dearborn, 341 Mich. 495, 499, 67 N. W.2d 718, 720 (1954); Long v. City of Highland Park, 329 Mich. 146, 153, 45 N.W.2d 10, 13 (1950); Grand Trunk W. R. R. Co. v. Ciry of Detroit, 326 Mich. 387, 396-97, 40 N. W.2d 195, 199 (1949); State ex rel. Tingley v. Gurda, 209 Wis. 63, 70, 243 N.W. 317, 320 (1932). We do not question the reasonableness of the state's goal to facilitate the general welfare. Rather we are concerned here with the means by which the legislature attempts to achieve that goal. Here, the means are not consistent with the constitution. We acknowledge that the state may properly attempt to economize the expenditure of public funds. As DOT notes, in Department of Transportation v. Fortune Federal Savings and Loan Associa- tion, 532 So.2d 1267 (Fla. 1988), we considered whether the state constitutionally could condemn an entire parcel when it required only a portion of the parcel. There was no constitutional violation when the state, acting pt rsuant to statute, a;,tually spent less by condemning the entire parcel than it would have spent by con- demning only the required portion. In Fortune Federal, the state sought to economize in a legitimate fashion after it had com- menced condemnation proceedings through its power of eminent domain. It would be an unwarranted extension of Fortune Federal to conclude that the state may deliberately restrict land use under its police power before the commencement of condemnation proceedings without the duty of compensation. The state may not use its police power in such a manner. Board of Commis. Accord Kissinger; Robyn; Long; Gratin Trunk W. R. R. Co.; State ex rel. Tingley. Fortune Federal is inapposite in this context. We are also unpersuaded by DOT's reliance upon Southern Bell Telephone & Telegraph Co. v. State ez rel. Ervin, 75 So.2d 796 (Fla. 1954). There, Southern Bell contended that the cost of removing and relocating its equipment made necessary by a high- way expansion project ought to be borne by the State Road De- partment. The Court noted that the influx of automobiles in this country "makes safe, adequate highways ... one of the clearest fields for the exercise of the police power." Id. at 799. No one disputes that the state may exercise its power to achieve highway safety. Here, however, the state exercised its police power with a mind toward property acquisition. Assuring highway safety and acquiring land for highway construction are discrete state func- tions. DOT contends that Joint Ventures' right to seek compensation hrough inverse condemnation cures the statute's failure to ex- pressly provide for compensation. We disagree. Although the right to seek relief through inverse condemnation is implied in the onstitutioa and a compensation provision need not be expressly included for an owner to be entitled to such compensation, see First English," that remedy is not equivalent to a property own- r's remedy under the doctrine of eminent domain. Inverse con- vs, Ft.vAIVA April 27, 1" demnation affords the affected property owner an after -the -fact rely, when there has already been a "taking" by regulation,12 and it is not a substitute for eminent domain protection facilitated by chapters 73 and 74. The property owner who must resort to inverse condemnation is not on equal footing with an owner whose land is "taken" through formal condemnation proceedings. The former has the burden of seeking compensation, must initiate the inverse con- demnation suit," and must finance the costs of litigation without the procedural protections afforded the condemnoe. In State Road Department v. Forehand, 56 So.2d 901, 903 (Fla. 1952), the Court considered the due process requirements of the state's summary method of securing possession of property pending condemnation proceedings: Notice to the parties, the appointment of appraisers, the submission of testimony, the right to be represented by coun- sel and a determination by the court of whether or not these things have been done are all required before possession of the land is turned over to the petitioner, including a deposit in the registry of the court of no less than twice its appraised value. See also United States v. Clarke, 445 U.S. 253, 255 (1980) (rec- ognizing that important legal and practical differences exist be- tween the two proceedings); Department of Transp. v. Grossman, 536 So.2d 1181 (Fla. 3d DCA) (the condemnor, not the landown- er, has the burden to proceed under chapter 74), review denied, 545 So.2d 1366 (Fla. 1989). DOT's claim that subsection 337.241(3) is a procedural cure for the shortcomings of subsection 337.241(2) is unavailing. Subsection (3) merely enables a property owner to challenge a regulation as an unreasonable or arbitrary exercise of police power. A reasonable regulation may, however, amount to a "tak- ing. "Pennsylvania Coal Co., 260 U.S. at 393 (cited with approv- al in Department of Agrie. do Consumer Servs, v. Mid -Florida Growers, Inc., 521 So.2d 101, 103 (Fla. 1988)), Under these circumstances the remedial protections of subsection 337.241(3) are illusory. Accordingly, we answer the certified question in the affirma- tive and quash the opinion of the district court. It is so ordered. (SHAW, GRIMES and KOGAN, JJ., Concur. EHRLICH, C.J., Dissents with an opinion, in which OVERTON and McDONALD, JJ., Concur.) 'The question which the district court certified to be of great public impor- tance is: Whether subsections 337.241(2) and (3) are unconstitutional in that they Provide for an impermissible taking of property without just compensa- tion and deny equal protection and due process in failing to provide an adequate remedy. 'oint Ventures, Inc. v. Department ofTransp., 519 So.2d 1069, 1072 (Fla. lu -)CA 199S). We have discretionary jurisdiction. Art. V, § 3(b)(4), Fla. Const. 'Subwction337.241(1), Florida Statutes (1987). provides in part: The department ... shall acquire all rights -of -way and may prepare and record snaps of reservation for any road within its jurisdiction .... Any such maps shalt delineate the limits of proposed rights -of -way for the eventual widening of an existing road ... . 'A development permit 'includes any building permit, zoning permit, plat pproval. or rezoning, certification, variance, or other action having the effect f permining development as defined in this chapter." § 380-031(4), Fiji. Stet. 1987). 'Subsection 337.241(3), Florida Statutes (1987), provides in part: Upon petition by an affected property owner alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a subsuraW portion of the beneficial use of such property, the department • .. shall hold an administrative hearing in accordance with the provi- sions of chapter 120. When such a hearing results in an order finding in favor a the petitioning property owner, the department .. ,shall have 180 drys from the date of such order to acquire such property or file appropriate proceedings. Appellate review by either party may be ream- ed to, but such review will not affect the 180-day limitation when such appeal is taken by the department ... unless execution of such order is rayed by the appellate court having jurisdiction. 'During the pendency of that appeal, DOT condemned the land, and th, parties entered into a monetary settlement. The district court decided that the great public importance and the likely recurrence of the issues preserved iu jurisdiction despite the settle men,. 'Palm Beach County v. Tessler, 538 So.2d 846, 949 (Fla. 1989) ('There is a right to be compensated through inverse condemnation when governments, action causes a substantial loss of access to one's property even though then: is no physical appropriation of the property itself.") (emphasis supplied)); Key- stone Bituminous Coal Assn v. DeBencdictis, 480 U.S. 470, 485 (1987); Agins V. City of Tiburon, 447 U.S. 255, 260 (1980). See also J. Sackman, MchoLs The taw of Fininew Domain § 6.09, at 6-55 (rev. 31d ed. 1985) ('The mexlcrn, prevailing view is that any substantial interference with private property which destroys or lessens its value .. , is, in fact and in law, a taking, in a constitu- tional sense." (Emphasis supplied.)). 'Me fifth amendment protections exist to prevent government —from forc- ing some people alone to bear public burdens which, in all fairness and justice, should be home by the public as a whole.'" Nollan v. California Coastal Comm'n, 107 S.Ct- 3141, 3147 n.4 (1987) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). 'A limitation on the exercise of the power of eminent domain is contained in the fifth amendment which provides that `private property (shall rail be taken for public use, without just compensation.' That protection applies to the states through the fourteenth amendment. Chicago, B. do Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). Florida's Constitution includes a similar limitation: 'No private property shall be taken except for a public purpose and with full com- pensation.' Art. X, § 6(s), Fla. Conti. "To be valid, a regulation must be rationally related to the advancement of that end. A use restriction which fails to substantially advance a legitimate state interest may result in a 'taking.- Keystone Bituminous Coal Assn; Agins Furthermore, in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 127 (1978), the Court opined that 'a use restriction on real propert� may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose' (citation omitted). "Me power of eminent domain derives from the same source as the police Power, to wit, the power based upon the sovereignty of the ante. Sackman, supra note 6, § 1.14, at 1-22 to 1-23. "There, the church was prohibited by ordinance from constructing on its property because the property was located within an interim flood protection area. The church filed a complaint which, in part, sought to recover in inverse condemnation. The issue before the Court was whether the fifth amendment's just compensation clause required the government to pay for 'temporary" regu- latory takings in inverse condemnation. The Court held that 'where the govern- rrent's activities have already worked a taking of all use of property, to subse- quent action by the government can relieve it of the duty to provide compensa- tion for the period during which the taking was effective." First English Evan- gelical Lutheran Church v. County of Los Angeles, 107 S.Ct. 2378, 2389 (1987). The Church did not argue, nor did the Court consider, whether the challenged ordinance was constitutionally valid. Thus, First F-rrglish offers no guidance to our resolution of the constitutional challenge against subsection 337.24)(2)snd (3), Florida Statutes (1987). "Schick v. Florida Dept. of Agric., 504 So 2d 1318, 1319 (Fla. tat DCA) ('a cause of action for inverse condemnation will lic against ■ government agent', which, by its conduct or activities, has taken private property without a formal exercise of the power of eminent domain-), review denied, 513 So.2d 1060 (Fla. 1987); Village of Tequcsu v. Jupiter Inlet Corp., 371 S0.2d 663, 669 (Fla.) (Florida's Constitution recognizes a right of the owner to compel compensation when his property is appropriated for public use), cent, denied, 444 U.S. 965 (1979). "Moreover, subsection 337.241(2) permits the development moratorium to last as long as ten years, after which DOT could abandon its road building plans and forego condemnation proceedings. (EHRLICH, C.J., dissenting.) The majority holds that subsec- tions 337.241(2) and (3), Florida Statutes (1987), are facially unconstitutional because they permit the state to take private property without just compensation or the procedural protections of the eminent domain statute. 1 must disagree. A "taking" occurs when the government by its action deprives a landowner of substantially all beneficial or economically viable use of his property. See Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985); Agins v, City of Tiburon, 447 U.S. 255 (1980). If there is a taking, the con- • stitutions of the United States and the state of Florida require that just and full compensation be paid. U.S. Const. amend. V; an. X, § 6(a), Fla. Const. In order for this Court to find subsections 337.241(2) and (3) facially unconstitutional, every conceivable application of those subsections must be unconstitutional, i.e., effect a "taking" of private property without just compensation. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). This is simply not the case. Although in most circumstances imposition of a map of reser- vation on vacant land will deprive the owner of substantially all beneficial use of the property, it cannot be said that every conceiv- able application of this statute will effect a taking. Subsections 337.214(2) and (3) apply to all types of land, from residential to commercial, whether vacant or improved. Application of this statute to land with existing structures which are in use likely will not effect a taking, because this statute permits continued use of and virtually unlimited renovation of existing residential structures, and renovation of existing commercial structures up to twenty percent of the appraised value of the structure. As it is only by analysis of each circumstance in which the statute is applied that it can be determined if a taking has occurred, the statute can- not be unconstitutional on its face. Confusion as to the operation of the statute underlies the whole of the majority's analysis. The majority apparently acknowledges the goals of this statute to promote highway safety and to save the state money, and that those goals legitimatelypromote the general welfare of the state. However, the majority finds fault with the statute because it restricts land use prior to commencement of compensation proceedings and without paying compensation to the land owner. However, in circumstances such as those dis- cussed above where the restrictions do not deprive the owner of substantially all beneficial use of his property, there is no taking, and no constitutional right to compensation. Further, it is not constitutionally required that explicit provi- sion be made in the statute for compensation to be raid in those circumstances where application of the statute effects a taking, because the owner has the right to file an inverse condemnation action. The right was reaffirmed in First English Evangelical Lutheran Church v. County of Los Angeles, 107 S. Ct. 2378 (1987), and was applied to takings resulting from government regulatory action similar to that in this case. The United States Supreme Court considered an ordinance which provided that "'lal person shall not construct, reconstruct, place orenlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area,' id. at 2381, but did not provide for compensation to be paid to affected landowners. The Court noted that the right to bring an inverse condemnation suit is based on the "self-executing" nature of the just compensation clause: 'The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not charge 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 prornise to pay was not necessary. Such a promise was im- plied because of the duty imposed by the Amendment. " Id. at 2386 (emphasis added) (quoting Jacobs v. United States, 290 U. S. 13 (1933)). Further, the Court in First English explicitly recognized that "(w)hile the typical taking occurs when the gov- ernment acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings." 107 S.Ct. at 2386. While I agree that "(i)nverse condemnation affords the affected property owner an after -the -fact remedy, when there has already been a 'taking' by regulation," majority op. at 12, and it is true that under inverse condemnation it is the property owner who has the burden o] seeking condemnation, the majority does not explain why this remedy is not constitutionally sufficient if the statute otherwise provides basic due process protections. Due process is required whenever the government takes prop- erty, as that is a deprivation of property under the due process clauses of the United States and Florida Constitutions. U.S. Const. amends. V, XIV; art. I, § 9, Fla. Coast. However, in the context of eminent domain, due process requires only that the property owner be given reasonable notice and an opportunity to be heard. Dohany v. Rogers, 281 U.S. 362 (1930). The legisla- ture has great discretion to determine the applicable procedure as long as that procedure is adequate to provide just compensation and satisfies the demands of due process and equal protection. Crane v. Hahlo, 258 U.S. 142 (1922). The additional protections afforded in the Florida eminent domain statutes, chapters 73 and 74, Florida Statutes (1987), are statutory in nature and are not mandated by either the Florida or federal constitutions. The Fifth Circuit Court of Appeals recognized the sufficiency of inverse condemnation as a remedy in United States v. 101.88 Acres of Land, 616 F.2d 762, 772 (5th Cir. 1980): IAl condemnation proceeding exists for the purpose of a] - lowing the sovereign expeditiously to acquire precisely the interest in land that it believes is required for some project it will carry out and to pay the landowner compensation for only those interests it has acquired, plus any damages that flow directly from the acquisition itself. The sovereign need not, of course, first proceed by formal condemnation. It may use land and leave the landowner to ask the courts to award just com- pensation under a theory of inverse condemnation. Or it may proceed by formal condemnation and inverse condemnation simultaneously.... The 51h Amendment, while it guarantees that compensation be just, does not guarantee that it be muted out in a way more convenient to the landowner than to the sovereign. (Emphasis added.) The fact that there are procedural differences between condemnation under eminent domain and inverse con- demnation does not in itself make the latter deficient as a remedy so long as the basic constitutional requirements are met. See also Port of New York Authority v. Heming, 34 N.J. 144, 167 A.2d 609 ("The Legislature may establish alternate procedures [for condemnation) which may be resorted to at the election of the condemnor provided each procedure itself meets the demands of due process and equal protection."), cerr. denied, 367 U.S. 487 (1961). State Road Department v. Forehand, 56 So.2d 901 (Fla. 1952), cited by the majority, does indeed stand for the proposition that a taking must accord with due process. However, the portion of that case quoted in the majority opinion, majority op. at 10, when read in context, is not a statement by this Court of the proce- dure required by due process, but instead is merely a recital of the provisions of chapter 74, Florida Statutes, the statute at issue in that case. Forehand does not stand for the proposition that due process requires the full range of protections provided in the eminent domain statutes, chapters 73 and 74, Florida Statutes. * The statute at issue provides for reasonable notice and oppor- tunity for the owner to challenge the agency action, thereby satis- fying the requirements of due process. Prior to the filing of the map of reservation, a public hearing is required to be advertised and held, with notification to all affected property owners at least twenty days prior to that hearing. After the map is filed, the owner may challenge the action itself as unreasonable or arbitrary and 15 FLW q�p SUPREME COURT OF FLORIDA because it denies April 27, 1990 , property r substantial Portion of the beneficial use of the F1Or>IdaSthttr�ad9 mrzt.ve hearing Pursuant to chapter 120, If the GREE MURDER IS CONVICTED OF MANSLAUGH- TER, WHICH CONVICTION IS REVERSED FOR tjePartnYat ha, 189 . owners challenge is successful, the nation days to acquire the A NEW TRIAL DUE TO TRIAL ERRORS, AND UPON REMAND Property or file a condem- below Pr�eedIng, 1 337.241(3), Fla. Stat. The district court be correct A NEW INFORMATION CHARGING MANSLAUGHTER IS FILED AND TIMELY PROSECUTED AND ALL PAR by th' tf this Procedure were the only means which °�'ner could receive relief, then - TIES ARE FULLY AWARE THAT THE SAME CRQNI- NAL EPISODE the statute would be unconai• However, this is IS INVOLVED, IS THE PROSECUTION not the case; the statute does � Prohibit OF THE SECOND INFORMATION A CONTINUATION OF THE United prem Payment of compensation, and the whose Suprepertyme Court has clearly found that a ORIGINAL PROSECUTION SO THAT THE STATUTE OF LIMITATIONS REMAINS TOLLED person >i°VCm t regulationis"men'" even temporarily, as the result of may sue for THROUGHOUT T14E PROSECUTION? compensation in inverse CO°��a�. F)rst English. Moreover, Id. at 650. We have jurisdiction. Art. V 3 § rotive. Fla. Corte filesao iuwer1e if the property owner We answer the certified question in the affirmative and approve q action and the court determines that a U&'ng has occurred' then the owner is attorney', the decision of the district court. The facts fees, as � entitled to reasonable would in of this case reflect that on December 4, 1981, Ed - instituted a condemnation proceeding the gdvernment. See State ward Adam Fridovich shot his father in the head with a shotgun, Road Dept. v. Lewis, 190 So.2d 598, 600 (Fla ist DCA) (It killing him. He was charged by indictment with first -degree mur- der, but would be absurd that if the department-�mplie8 with the law the jury found him guilty of the lesser included offense of of this state by instituting an eminent d<,rnatn action, it is liable for attorneys fees; but if it unlawfully t" manslaughter. Fridovich appealed his manslaughter conviction to the Fourth District Court of Appeal, which reversed the convic- an�pnatea a citizen's property without instituting it thus escapes liability for incurred lion due to the trial court's erroneous refusal to allow a medical examiner to testify by the the attorney's fees 499 (F�� aggneved owner. "), cert. dismissed, 192 So.2d )• Therefore, that the shooting was accidental. Fridovich v. State, 489 So. 2d 143 (Fla. 4th DCA), review denied, 496 So. 2d a valid mechanism exists for the payment of compensation and the federal and Florida constitu- tions are lattafted 142 and 500 So. 2d 545 (Fla. 1986). The district court remanded the case for a new trial and further proceedings by issued Further, where, as here, the government ac lion e regulation that will effect mandate August 1, 1986. a taking only in certain circum stances, it i, uric , easonable and illogical On September 18, 1986, the state filed an information entitled "Re to require the institutionof formal CO°dernnstion proceedings in -File Information for Manslaughter," charging Fridovich every case, For the foregoing reasons I would answer the certified ues_ tion in the negative with the killing of his father. Prior to the second trial, the trial judge ruled that evidence would be restricted to that q and approve the decision of the district court below. (OVERTON and McDONALD, JJ., probative of manslaughter. At the second trial, the slate's principal witness Concur.) was a blood -splatter expert, who opined that the shot that killed' �' CI'he• �3 Fridovich's father was fired from a distance of one inch or less. cuucd the tcW U.S. 253 (1980), cited by the majority, din- domain and practical difference, between condemnation under eminerM wtiara, Condemnation Fridovich objected to this testimony before it was presented, arguing that it was clearly "murder" evidence, but the trial in the context of interpreting 25 U.S.C. !i 357. The Cou" determined that the � did not include term 'condemned- court the testimony. He then made a motion for a mistrial, as used in the suture and not txcauae'^�'erae Condemnation based solely on statutory interpretation, urver,e condemnationwu in an w, Y y conuitutwrullydcficient. which which was denied. At the instruction conference, Fridovich moved for a directed • + • Criminal law +mitation verdict of acquittal, claiming that the information on which he tned barred by statute of with r of actions— Where defendant was charged withfarsldegreemurderandconvictedofmanslaughter but appelt Florida Statutes (1981) t Fridovich conhe tended tha�tctlon becau7ce the roLry reversed and remanded, and where, upon remand, a new inform Limn information was filed four -and -one-half years after the alleged offense and contained language timely prowuled charging manslaughter was filed and criminal a with all parties being fully aware that the same P rdr wus involved, no linking it to the earlier, timely filed indictment, the action was barred. The trial judge denied the tntormaUo,a wYy the prosecution of the second contnruation of the original the statute of Ii,rtil,tlNrns motion for acquittal, and the jury subsequently returned a verdict of guilty of manslaughter. t prosecution so that remained tolled throughout the prosecu- tion —State is not m 4tttredto On appeal, the district court noted that the refiled information for new trijel file a new information upon remand untk r such charged the same defendant with the same crime of which he had circumstances —Fact that case number was different on refried informalion did not constitute an aban- donment of origirt)tl indkl,nent originally been convicted and that it involved the same parties, the same subject matter, and the same dates. The court stated that and lesser offense for which defendant warrouvicted Fridovich had not been prejudiced by this "continuation of the EDWARD ADAAt I RID()VICII original prosecution," 537 So. 2d at 650, and held that the statute pendent. Su re petitioner, v, STATE OF FLORIDA, Re_ p '^` t �rtrt of FI"rid+_ Case No. 73,921. April 26, 1990. Appli- ,lion for Review „f the Dc, ision of the District ,rest Public imtw.„„ke. of limitations was tolled by the filing of the original indictment and that it continued tolled throughout the prosecution under the Court of Appcal—Certified Y). Steven D. Mcr "'. Flwrth District—Csae No, 87-0-to9 (Broward Coun- reftled information. Id. og+rtY. Me Y "kt Lind+ Jilin McNamara of Glenn, Rasmussen, •lorida, for Pelt*. Rusao. Tampa, Florida; and Glen L. Brock, Lakeland, kr. R„i,e„ There is no rule or other authority which requires the state to file a new information upon p0 remand for 'uller• Asaiatan ra Butte r "°^h. Attorney General and Deborah OVEAtr' ^kY General, Neat Palm Beach, Florida, for Respondent. N, a new trial in these Cir- curnstances. Pursuant to the mandate of the district court, the state 648 (Fl d 648 (Fla. 4th I)CA 1989 1h C have for review Fridovich v. State, 537 So. ). need file only a motion to set the case for trial with the trial court. judge The trial jud a is then obligated to instruct the jury 41 to which the Fourth District Court Mf Appeal certtlic•d tl)r tolltwving mPortance: on the crime With which the defendant is charged and to set forth the charge in question to be of great public accordance with Florida Standard Jury Instruction (Criminal) WHERE A PERSON CHARGED WITH FIRST DE- 1.01. The state is not required to file a new charging document setting forth the lesser included I offense on which the defendant i 1