Fulmore v. Charlotte County

928 So. 2d 1281, 2006 WL 1479040
CourtDistrict Court of Appeal of Florida
DecidedMay 31, 2006
Docket2D04-3179, 2D04-3283, 2D04-3293, 2D04-3429, 2D04-3430, 2D05-13, 2D05-17, 2D05-24, 2D05-29, 2D05-2708, 2D05-3315, 2D05-4156, 2D05-4159
StatusPublished

This text of 928 So. 2d 1281 (Fulmore v. Charlotte County) 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
Fulmore v. Charlotte County, 928 So. 2d 1281, 2006 WL 1479040 (Fla. Ct. App. 2006).

Opinion

928 So.2d 1281 (2006)

Maureen FULMORE, Appellant,
v.
CHARLOTTE COUNTY and Murdock Village Community Redevelopment Agency, Appellees.
Donald and Lela Replogle, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Keryn P. Newman, Appellant,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Lewis J. Dorsch, Appellant,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Janette McGibbon, Appellant,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Tamora A. Trainor-Kozak as sole heir of William P. Trainor and Marlene E. Trainor, Judith A. Hoover, Allana Kondisko and Joseph R. Kondisko, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Raymond and Kevin Lee, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Allen J. Wagner and Melvin Schlauch, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Genevieve M. Blair, Appellant,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Estate of Mariann L. Burke and Woodland Development Group, LLC, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Dawn Morales, Appellant,
v.
Charlotte County, and Murdock Village Community Redevelopment Agency, Appellees.
Curtis D. Cumming and Ruth A. Cumming, Bruce L. Tippin, James D. Tippin, and William W. Dugan, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.
Curtis D. Cumming, Ruth A. Cumming, Bruce L. Tippin, James D. Tippin, William W. Dugan, Edward DePaiva, Elizabeth DePaiva, and Teresa Berchtold, Appellants,
v.
Charlotte County and Murdock Village Community Redevelopment Agency, Appellees.

Nos. 2D04-3179, 2D04-3283, 2D04-3293, 2D04-3429, 2D04-3430, 2D05-13, 2D05-17, 2D05-24, 2D05-29, 2D05-2708, 2D05-3315, 2D05-4156, 2D05-4159.

District Court of Appeal of Florida, Second District.

May 31, 2006.

*1283 S. William Moore and Amy Brigham Boulris of Brigham Moore, LLP, Miami, for Appellants Maureen Fulmore, Lewis J. Dorsch, Janette McGibbon, Tamora A. Trainor-Kozak, Marlene E. Trainor, Judith A. Hoover, Allana Kondisko, Joseph R. Kondisko, Raymond Lee, Kevin Lee, Allen J. Wagner, Melvin Schlauch, Genevieve M. Blair, Curtis D. Cumming, Ruth A. Cumming, Bruce L. Tippin, James D. Tippin and William W. Dugan.

Ellen J. Neil of Gaylord, Merlin, Diaz, and Bain, Boca Grande, for Appellants Donald and Lela Replogle and Keryn P. Newman.

No appearance for Appellants Edward DePaiva, Elizabeth DePaiva and Teresa Berchtold.

John H. Pelzer and Robert J. Gill of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for Appellees.

Valerie A. Fernandez, Coral Gables, for Amicus Curiae Pacific Legal Foundation.

WHATLEY, Judge.

The Appellants (the Landowners) in these consolidated cases challenge the trial court's orders rejecting their constitutional challenge to the Community Redevelopment Act of 1969 (the Act), §§ 163.330.463, Fla. Stat. (2003), and allowing the taking of their property through the exercise of the power of eminent domain as authorized by the Act. We affirm.

In the findings and declaration of necessity provision of the Act the legislature stated in pertinent part that

there exist in counties and municipalities of the state slum and blighted areas which constitute a serious and growing menace, injurious to the public health, safety, morals, and welfare of the residents of the state; that the existence of such areas ... constitutes an economic and social liability imposing onerous burdens which decrease the tax base and reduce tax revenues, substantially impairs or arrests sound growth ... aggravates traffic problems, and substantially hampers the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of slums and blight is a matter of state policy and state concern....

§ 163.335(1).

It is further found and declared that the powers conferred by this part are for public uses and purposes for which public money may be expended and the power of eminent domain and police power exercised, and the necessity in the public interest for the provisions herein enacted is hereby declared as a matter of legislative determination.

§ 163.335(3).

To effect the elimination of slums and blight,[1] which conditions are specifically *1284 defined by the Act, §§ 163.340(7), (8), the Act authorizes counties and municipalities to exercise the power of eminent domain to acquire areas they have designated as community redevelopment areas. § 163.375. Before doing so, the governing body must adopt a resolution supported by data and analysis that makes a legislative finding that slum or blight conditions exist and that redevelopment is necessary in the interest of the public health, safety, morals, or welfare of the residents of the county or municipality. § 163.355. The Act specifically promotes the involvement of private enterprise:

Any county or municipality, to the greatest extent it determines to be feasible in carrying out the provisions of this part, shall afford maximum opportunity, consistent with the sound needs of the county or municipality as a whole, to the rehabilitation or redevelopment of the community redevelopment area by private enterprise.

§ 163.345. See also Kelo v. City of New London, Conn., ___ U.S. ___, ___, 125 S.Ct. 2655, 2664, 162 L.Ed.2d 439 (2005) ("Our opinion [in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984)] also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. `[I]t is only the taking's purpose, and not its mechanics,' we explained, that matters in determining public use.").

In May 2003, the Charlotte County Board of County Commissioners adopted a resolution authorizing and directing the use of consulting expertise to analyze whether an area in the unincorporated West Murdock area of Charlotte County constituted an area of slum or blight as defined in the Act. Two weeks later, the Board held a public hearing at which it was presented uncontradicted evidence of blight by the manager of Charlotte County's Utilities Department, the County's supervisor of code enforcement, the County's transportation engineer, the County's director of real property services, and a private land planner with Real Estate Research Consultants. After hearing from the public, the Board approved unanimously a resolution containing findings of blight, declaring the 1100-acre redevelopment area to be a blighted area in need of redevelopment in the interest of the public health, safety, morals, or welfare, and designating the redevelopment area appropriate for community redevelopment. The resolution stated that in addition to the testimony of staff and the expert and the finding of necessity report prepared by Real Estate Research Consultants, the Board relied on its own knowledge of the conditions in the redevelopment area.

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Related

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Bluebook (online)
928 So. 2d 1281, 2006 WL 1479040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulmore-v-charlotte-county-fladistctapp-2006.