In Altman v. Brevard County, No. 5D19-1839 (July 10, 2020), the Florida District Court of Appeal considered a host of owner objections to a taking of easements over five beachfront lots:
(1) the County was required to obtain separate resolutions for each taking; (2) the County’s petition in eminent domain did not strictly comply with the Florida Statutes; (3) the resolution on which the County based its petition was nullified by an amended resolution; (4) the trial court crafted takings outside of the pleadings; (5) the County failed to establish a reasonable necessity for the takings; and (6) the County failed to present a good faith estimate of value for each easement.
Slip op. at 2.
The court rejected most of the objections, but agreed with three: "[w]e find that the County’s petition failed because it did not provide clear legal descriptions of the properties to be acquired and that the County failed to establish a reasonable necessity for the public use aspect of the takings. Additionally, the trial court crafted takings outside of the pleadings." Id.
The court's analysis turned on the way the land was described. The project was to take easements to allow the placement of sand on county beaches "in order to maintain safe and sufficient hurricane evacuation routes, protect upland structures and infrastructures, preserve nesting habitats for sea turtles, and to preserve areas for public recreation." Slip op. at 2. The County's project engineer testified that the County's partnership with the Corps of Engineers required that the County ensured the "continued public use of such shores compatible with the authorized purposes of the project ...." Slip op. at 6. Otherwise, no federal dollars.
The resolutions described the western boundaries of properties by the "14 foot elevation contour" defined by either the vegetation line or the seawall at the 14 foot contour. The metes-and-bounds descriptions described the boundary as the 14 foot elevation contour.
The County did a survey, but looked only at the 14 foot contour line and not vegetation line. The surveyor testified that he wasn't aware of the alternative descriptions of the boundary lines as the vegetation line. The County also had reasons for choosing the 14 foot line.
Sensing trouble, the County asked to amend its complaint to clarify the western boundary of the easements to be acquired. We really think it should be the 14 foot line, Your Honor. Attached to the proposed amended complaint was an amended resolution which also clarified the 14 foot line as the boundary. This is just clarification, and no-harm-no-foul, argued the County.
The trial court denied amendment. You can't change the description in the complaint to be different than the original resolution. After the trial judge informed the County that it was its choice about what to do next--"With that, you’ve got some tough choices. You can proceed. You can take a voluntary dismissal. You've got to figure out strategically what you want to do."-- the County "elected to go forward with its original Petition." Slip op. at 9. After a hearing, the trial court was satisfied: the necessity of the easements was "obvious," and the County had clarified the boundary. Go ahead and take, County, subject to certain conditions the court imposed about the easements' descriptions. See slip op. at 11.
Not so fast, held the Court of Appeal. The condemnor must make clear what it is taking:
However, we find that although the County technically included legal descriptions of the easements, the County’s Petition was defective because the legal descriptions provided two potential easement boundaries, rendering them unclear. The original Resolution authorized an easement on each property, with a western boundary at either the 14-foot elevation contour line or the seaward edge of the eroded dune bluff, depending on which was further seaward. Thus, for each property, the County should have determined which potential boundary line was further seaward and petitioned for an easement with that boundary line.
Slip op.at 14 (footnote omitted). That "depending" language wasn't giving the County the choice of choosing which it preferred (such that it was free to choose the 14 foot line), but was commanding the County to go figure out whether the vegetation line of the 14 foot line was further seaward. Whichever it was, choose that.
And what of necessity? As we know, these type of challenges are tough. Courts may defer to the condemnor's claim that a taking is for public use, but when it comes to necessity challenges, the judiciary's deference goes through the roof. Courts are super-reluctant to examine the ends-means fit between the asserted public use, and whether the property is being taken for that public use.
The court concluded that there wasn't enough of a fit because the public purposes of the project exceeded the scope of what the Corps of Engineers required for federal funding:
Even the witnesses for the County recognized that the County sought a greater public use than was required by the Corps. Bodge recognized that while the Agreement required the County to ensure “continued public use” of the shore, the proposed easements did not limit the use to “continued” or “existing” use because they stated, “[t]ogether with the right of public use only on the property.” Likewise, McGarry testified that in order to receive federal grant money for the Project, only the “open sandy beach” portion of each condemned parcel had to be publicly accessible. Accordingly, pursuant to Cordones, the County failed to establish a reasonable necessity for the public use aspect of the easements.
Slip op. at 19.
So what lessons can we draft from the decision? Stick to the resolution. If the resolution is bad, the remedy is a new resolution, not amendment. These type of things are not to be approached loosely, and then fixed on the fly. And there may not be a lot in the necessity doctrine on which to hang your hat -- but in the right case, it does have meaning.
Thus, condemnors the choice is solely yours: choose wisely.
Altman v. Brevard County, No. 5D19-1839 (Fla. Dist. Ct. App. July 10, 2020)
