Rubano v. Department of Transp.

656 So. 2d 1264, 20 Fla. L. Weekly Supp. 286, 1995 Fla. LEXIS 1043, 1995 WL 368411
CourtSupreme Court of Florida
DecidedJune 22, 1995
Docket83307
StatusPublished
Cited by26 cases

This text of 656 So. 2d 1264 (Rubano v. Department of Transp.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubano v. Department of Transp., 656 So. 2d 1264, 20 Fla. L. Weekly Supp. 286, 1995 Fla. LEXIS 1043, 1995 WL 368411 (Fla. 1995).

Opinion

656 So.2d 1264 (1995)

Joseph J. RUBANO, et al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.

No. 83307.

Supreme Court of Florida.

June 22, 1995.

*1265 Alan E. DeSerio of Brigham, Moore, Gaylord, Schuster & Merlin, Tampa, and Allan M. Rubin of Shutts & Bowen, Miami, for petitioner.

Thornton J. Williams and Gregory G. Costas, Asst. Gen. Counsel, Dept. of Transp., Tallahassee, for respondent.

ANSTEAD, Justice.

We have for review State Department of Transportation v. Rubano, 636 So.2d 749 (Fla. 4th DCA 1994), which certified to us, as a question of great public importance, whether the Florida Department of Transportation (DOT) effectuated a temporary but compensable taking of access of petitioners' property during a highway improvement project. Although the district court merely certified to us whether there was a "compensable taking of access" in this case, 636 So.2d at 752-53, we have formulated a question to narrow the issue before us:

DID THE DEPARTMENT OF TRANSPORTATION ENGAGE IN A COMPENSABLE TEMPORARY TAKING OF ACCESS WHEN IT ELIMINATED PETITIONERS' DIRECT ACCESS TO A STATE ROAD BY PLACING PETITIONERS' PROPERTY ON A SERVICE ROAD, ELIMINATED A PROTECTED U-TURN AND REPLACED IT WITH ANOTHER U-TURN WHICH ADDED ONE AND ONE-HALF MILES OF TRAVEL TO REACH THE PROPERTIES, AND SEVERED THE CONNECTIONS FROM INTERSTATE 95 TO STATE ROAD 84?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the negative.

Procedural Posture

This action involves five separate inverse condemnation actions which were consolidated for trial. The trial court concluded that there was a taking of access to petitioners' properties while roads were being improved and constructed by DOT. The DOT appealed to the Fourth District arguing that the rerouting of traffic required by the construction was not compensable. The Fourth District agreed and reversed.

*1266 Pre-Construction Conditions

The five commercial properties are all located in Broward County west of I-95 and between S.W. 26th Terrace and S.W. 23rd Terrace on the north side of State Road 84 (S.R. 84), a divided highway which runs east and west. The properties abutted the northernmost westbound lane of S.R. 84 with direct access to the roadway. Persons traveling east on S.R. 84 could reach the properties by utilizing a protected U-turn at the intersection of Ravenswood Road and S.R. 84 (Ravenswood U-turn), a short distance from the properties. Persons leaving the properties who desired to return to the eastbound lanes could do so by turning right onto the westbound lanes, and then using one of two U-turns located a short distance from the properties.

DOT's Construction Activities

None of petitioners' land was actually taken by the government. Rather, their claim is predicated on the ground that DOT effectively took away their access to S.R. 84 during construction. Three events occurred which petitioners claim deprived them of access to their properties.

First, DOT relocated all existing travel lanes of S.R. 84 to the north of their former location in order to construct a new southern bridge over I-95 on S.R. 84. In furtherance of this relocation, DOT eliminated the Ravenswood U-turn and erected a continuous line of concrete barriers between the eastbound and westbound lanes of newly relocated S.R. 84. Eastbound vehicles on S.R. 84 were then required to travel an additional mile and one-half to a U-turn at S.W. 15th Avenue to gain access to the properties.

Second, when DOT completed construction of the new southern bridge, all travel lanes of S.R. 84 were relocated to the extreme south of its right-of-way in order to construct a new northern bridge for S.R. 84 over I-95. To maintain access to petitioners' properties, DOT created a service road from the old westbound lanes of S.R. 84 by using concrete barriers which separated the service road from the travel lanes of S.R. 84. Access to S.R. 84 was then available to the properties by a narrow break in the concrete barrier wall. With the exception of the western driveway of Parcel 1, the properties no longer directly abutted S.R. 84, but instead abutted the temporary service road. Subsequently, DOT signalized the service road at S.W. 26th Terrace and removed the barrier wall at the western end of the service road.

Third, at the same time that DOT created the service road, it also physically severed all S.R. 84 connections to I-95. All persons seeking access to the properties by the I-95 exits onto westbound S.R. 84 were relegated to using I-595 which exited onto S.W. 26th Terrace, a route which added between 2.32 and 2.43 miles to the previous route for many persons.

DIMINUTION IN ACCESS AS A TAKING

The Florida Constitution states that "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner." Art. X, § 6(a), Fla. Const.; see also Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669 (Fla.) (holding that Florida Constitution bars the taking of private property except for public use, and then only after full compensation), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979). Further, where a government agency, by its conduct or activities, has effectively taken private property without a formal exercise of the power of eminent domain, a cause of action for inverse condemnation will lie. Schick v. Florida Dep't of Agriculture, 504 So.2d 1318, 1319 (Fla. 1st DCA), review denied, 513 So.2d 1060 (Fla. 1987). Proof that the governmental body has effected a taking of the property is an essential element of an inverse condemnation action. Kendry v. Division of Admin., 366 So.2d 391, 393-94 (Fla. 1978).

A taking may occur in a wide variety of circumstances and may be either temporary or permanent. For example, a taking may occur when governmental action causes a loss of access to one's property even though *1267 there is no physical appropriation of the property itself.[1]

In Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla. 1989), the property owners had a commercial business on Palmetto Park Road in Boca Raton, but permanently lost access to their property from that road when a retaining wall was built directly in front of the property. As a result, customers had to access the property by winding 600 yards through a residential neighborhood. Id. at 847. We concluded that the property owners could recover damages for their loss of access because they lost more than their most convenient means of access. Id. at 850. Quoting from the district court, we stated:

They have shown that the retaining wall will require their customers to take a tedious and circuitous route to reach their business premises which is patently unsuitable and sharply reduces the quality of access to their property. The wall will also block visibility of the commercial storefront from Palmetto Park Road.

Id. While allowing a recovery on these narrow facts, we cautioned:

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.

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Bluebook (online)
656 So. 2d 1264, 20 Fla. L. Weekly Supp. 286, 1995 Fla. LEXIS 1043, 1995 WL 368411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubano-v-department-of-transp-fla-1995.