Brevard County v. A. Duda & Sons, Inc.

742 So. 2d 476, 1999 Fla. App. LEXIS 12679, 1999 WL 754720
CourtDistrict Court of Appeal of Florida
DecidedSeptember 24, 1999
DocketNo. 98-3325
StatusPublished

This text of 742 So. 2d 476 (Brevard County v. A. Duda & Sons, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brevard County v. A. Duda & Sons, Inc., 742 So. 2d 476, 1999 Fla. App. LEXIS 12679, 1999 WL 754720 (Fla. Ct. App. 1999).

Opinion

PETERSON, J.

Brevard County (Brevard) obtained an order of taking for 240 acres of property owned by A. Duda & Sons, Inc. (Duda), for the construction of artificial wetlands to be used as a disposal and treatment area for Brevard’s South Central Regional Waste-water Treatment Facility. The additional wetlands were required to enhance the facility’s disposal capacity and to facilitate a plan to increase the capacity from three million gallons to five and one-half million gallons per day. The operation of the facility allows partially-treated wastewater to flow into the artificial wetlands system, and then drain into a canal known as the “4-Mile Canal” which finally empties into Lake Winder, a part of the St. Johns River system. The 4-Mile Canal is owned and operated by Duda, who uses it to drain surface water runoff from operations on its 38,000 acre Cocoa Ranch.

After the order of taking had been entered for the 240 acres of created wetlands, Brevard filed an amended petition to correct the oversight that it lacked an easement to connect the created wetlands to Lake Winder. The amended petition sought an easement over more of Duda’s land and Duda’s privately owned 4-Mile [478]*478Canal for the transmission of its treated effluent.

Duda raised its concern about the pollutants that Brevard would discharge with its effluent into the 4-Mile Canal. Duda presented evidence that governmental regulatory agencies were considering imposition of pollutant load limitations (PLURGS1 and TMDLS2) on Lake Winder within the following five years. Those limitations could substantially impact Duda’s operations and future development of its Cocoa Ranch in that Brevard’s discharge of its pollutants through the use of the easement would reduce the availability for Duda’s discharge.

Duda estimated that, under the worst case scenario, the value of an easement obtained by Brevard with unrestricted rights would be six million dollars. In order to reduce those damages, Duda proposed that restrictions on the use of the easement be placed in the supplemental order of taking. The parties were able to agree upon some of the language in furtherance of the goal to reduce damages and the language was included as paragraph five of the supplemental order. Disagreeing on language to be included in paragraph six of the order, the parties each submitted proposals to the court and the court selected Duda’s proposal. Bre-vard’s appeal of the order is focused upon that paragraph six.3

We agree with Brevard that the trial court exceeded its authority by including language in paragraph six of the order that requires Brevard to perform future obligations beyond the plans, specifications, and testimony as established at trial. The supplemental order of taking requires Brevard to take steps in the future to reduce or eliminate contaminants to meet unascertained standards. The requirements exceed the plans, specifications and testimony presented at the hearing on the order of taking, and attempt to impose contractual obligations on Brevard in favor of Duda in the absence of a contractual agreement. This goes beyond the determination of a good faith deposit for contemplated damages.

In Trailer Ranch, Inc. v. City of Pompano Beach, 500 So.2d 503, 506 (Fla.1986), the supreme court stated:

[I]t is settled law in this state that once plans and specifications are properly admitted for the purpose of showing the manner in which the condemned property will be utilized, the condemnor is bound by this evidence.... If, after the damages are awarded for the taking, the condemnor fails to adhere to the binding plans, specifications and testimony as established at trial, the condemnee has a cause of action against the condemnor for additional damages.

We interpret the reference to binding plans, specifications and testimony to be of a technical nature and so certain that a subsequent variance from them can be ascertained and additional damages sought. The provisions of paragraph six of the supplemental order of taking that have been imposed vary from that concept. For example, the parent tract has not yet been determined, yet the order includes all of the Cocoa Ranch’s 38,000 acres. The highest and best use of the land has not yet been determined, yet the order presupposes a wide latitude of use. Obligating Brevard to take steps as necessary to avoid reduction in Duda’s use of its lands because of an uncertain future occurrence completely misses the mark as a plan or specification that is ascertainable.

Equally objectionable from the con-demnee’s perspective is Brevard’s proposed version of paragraph six. It is transparent in its attempt to discount the just compensation ultimately to be award[479]*479ed for the taking and could not be characterized as a plan or specification. The terms “reasonable steps,” “mitigate,” “material,” and “abutting lands” are invitations to future litigation. Time periods to take those actions are not defined. Brevard’s version also presupposes that the highest and best use of the abutting lands, the size of which has not yet been determined, is agricultural.

The condemnee is entitled to just compensation now for the current taking, not vague promises to act in the future to cure future problems in an attempt to limit compensation.

Because of the uncertainty that the deletion of paragraph six would have upon the Supplemental Order of Taking as a whole, we vacate the entire order and remand for entry of an order that reflects that which the county requested in its supplemental petition, together with its plans and specifications and expert testimony, without adopting what the county would like to undertake in the future to cure its deleterious affect on Duda’s parent tract by discharge of pollutants. In doing so, Duda can assert that the worst possible damage will be suffered by the remainder. The county can, of course, show that their discharge will result in less than the worst possible assumption.

The trial court and the parties should be commended for their attempt to resolve the complexities that emerging environmental regulations have introduced into this eminent domain action. The parties are encouraged to further attempt to find mutually agreeable language for adoption by the court.

ORDER VACATED; REMANDED.

W. SHARP and GRIFFIN, JJ., concur.

APPENDIX A: Included in the Supplemental Order of Taking

5. The legal interest to be acquired in the real property described in Exhibit
“A-l” shall be a non-exclusive drainage easement over the existing canal known as the “4-Mile Canal” to be used solely for either:
a. the conveyance of treated effluent discharged from the Wetlands Disposal System to be constructed on the 177 acres described in Exhibit “B” as “Area 4”, or as further expanded to the forty acres, more or less, described in Exhibit “B” as “Area 2”; and
b. the conveyance of stormwater discharged from the wastewater treatment plant site located on thirty-eight acres described in Exhibit “C”, or as further expanded to the forty acres described in Exhibit “B” as “Area 2”; and
c. the intake of water from the “4-Mile Canal” for further treatment as described in paragraph 6.

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Related

Trailer Ranch, Inc. v. City of Pompano Beach
500 So. 2d 503 (Supreme Court of Florida, 1986)

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Bluebook (online)
742 So. 2d 476, 1999 Fla. App. LEXIS 12679, 1999 WL 754720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brevard-county-v-a-duda-sons-inc-fladistctapp-1999.