Department of Transp. v. Fisher

958 So. 2d 586, 2007 WL 1828073
CourtDistrict Court of Appeal of Florida
DecidedJune 27, 2007
Docket2D05-5643
StatusPublished
Cited by2 cases

This text of 958 So. 2d 586 (Department of Transp. v. Fisher) 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
Department of Transp. v. Fisher, 958 So. 2d 586, 2007 WL 1828073 (Fla. Ct. App. 2007).

Opinion

958 So.2d 586 (2007)

DEPARTMENT OF TRANSPORTATION, Appellant,
v.
Gregg FISHER and Carol J. Fisher, Appellees.

No. 2D05-5643.

District Court of Appeal of Florida, Second District.

June 27, 2007.

*588 Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellant.

Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa; and Marc I. Sachs and D. Tobyn DeYoung of Sachs & DeYoung, P.A., Tampa, for Appellees.

Opinion dissenting on denial of rehearing.

BY ORDER OF THE COURT:

The Appellees' motion for rehearing is denied. A single member of the panel dissents, with opinion, from the denial of the motion for rehearing. Accordingly, the opinion dated July 14, 2006, is withdrawn and the attached opinion that includes the dissenting opinion to the denial of the motion for rehearing is substituted for that opinion. No further motions for rehearing will be entertained in this appeal. The Appellees' motion for rehearing en banc and motion for certification are denied.

STRINGER, Judge.

The Department of Transportation appeals from a final summary judgment entered against it and in favor of the Fishers in this inverse condemnation case concerning property along U.S. 19 in Clearwater. Because the trial court erred in finding that the Fishers' access to their property has been "substantially diminished," we reverse and remand for entry of judgment in favor of the Department.

The facts in this case are essentially undisputed. The Department is currently engaged in ongoing reconstruction of U.S. 19 through Pinellas County. As part of that construction, portions of U.S. 19 are being elevated. Along these elevated portions, the Department is constructing frontage roads to provide access to businesses and residences. Thus, many businesses which used to abut the main travel lanes of U.S. 19 now abut frontage roads. The Fishers own one such business, the Coachman Car Wash. Before construction began, drivers could access the Fishers' car wash directly from U.S. 19. Postconstruction, drivers must use the frontage road to access the car wash from U.S. 19.

*589 During the course of the construction, the Fishers brought an inverse condemnation action against the Department, contending that they were entitled to compensation because the Department had "taken" the access to their property. The Fishers admitted that none of their property had been physically taken by the Department. Instead, the question was whether the placement of the property on a frontage road resulted in a taking of the Fishers' access to their property. On cross-motions for summary judgment, the trial court found that a taking had occurred, and the Department appealed.

Because none of the Fishers' property was physically taken, the only issue in this case is whether the Department's activities on its own property have resulted in a compensable taking of the Fishers' access to their property. In determining whether access has been "taken," courts must consider the following principles:

There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one's property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one's access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property, it can be said that the property owner's right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist. A taking has not occurred when governmental action causes the flow of traffic on an abutting road to be diminished. The extent of access which remains after a taking is properly considered in determining the amount of the compensation.

Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989) (emphasis added). Because a property owner has no right to a specific level of traffic flow, see State, Dep't of Transp. v. Stubbs, 285 So.2d 1, 4 (Fla. 1973), the question of whether access has been diminished or destroyed must focus on physical access to the property itself — not the amount of traffic that can or will pass by the property postconstruction.

Considering these general principles, it is clear that when governmental action actually destroys all physical access to the property from a particular road, the loss of access is compensable. See, e.g., Tessler, 538 So.2d at 850 (affirming award of compensation because the property owner's access to Palmetto Park Road was completely destroyed by the construction of a retaining wall between the road and their property). It is also clear that when the government physically appropriates some portion of a property owner's land, any diminished access to the property may be considered as part of the severance damages owed for the reduced value of the remainder of the land. Id. at 849. However, in the absence of a physical taking of land, mere circuity of access is not compensable unless the remaining access to the property is "substantially diminished." Id.; see also Rubano v. Dep't of Transp., 656 So.2d 1264, 1269 n. 3 (Fla.1995) ("roadway abandonment, construction, or realignment which results in inconvenience or mere circuity of access to abutting landowners does not give rise to a compensable injury"); State, Dep't of Transp. v. Weggies Banana Boat, 576 So.2d 722, 724 (Fla. 2d DCA 1990) ("any decrease in visibility or increased circuity of access Weggies suffered as a result of the overall design of the project is not compensable"); State, Dep't of Transp. v. S.W. Anderson, Inc., *590 744 So.2d 1098, 1102 (Fla. 1st DCA 1999) (reversing award of compensation because, at most, "one must now travel a less convenient route from the newly constructed SR 79 to Anderson's property").

In an inverse condemnation action such as this one, the trial court makes both findings of fact and conclusions of law. "As a fact finder, the judge resolves all conflicts in the evidence. Based upon the facts as so determined, the judge then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activity." Tessler, 538 So.2d at 850; see also USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1154 (Fla. 1st DCA 2005). Thus, the trial court's factual findings are afforded deference, but its application of the facts to the law, i.e., its determination that a given set of facts constitute a substantial diminution of access, is reviewed de novo. USA Independence Mobilehome Sales, 908 So.2d at 1154.

In this case, the facts show that the Fishers' car wash previously abutted U.S. 19 north of its intersection with N.E. Coachman Road. Before construction began, the Fishers had a driveway that led directly from U.S. 19 to their car wash. Drivers heading north on U.S. 19 could turn right into the driveway. Drivers heading south on U.S. 19 could turn left into the driveway through a median cut. The Fishers also had both eastbound and westbound access to their car wash from N.E. Coachman.

After the U.S. 19 construction was completed, access to and from the Fishers' car wash from N.E. Coachman remained the same. However, where the Fishers previously had a driveway opening onto U.S.

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Bluebook (online)
958 So. 2d 586, 2007 WL 1828073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transp-v-fisher-fladistctapp-2007.