Opinion
No. 4-86-2973.
January 20, 1988.
Appeal from the Circuit Court, Palm Beach County, Timothy P. Poulton, J.
Shirley J. McEachern, Asst. Co. Atty., West Palm Beach, for appellant.
James W. Vance of James W. Vance, P.A., West Palm Beach, and James J. Richardson, Tallahassee, for appellees.
Palm Beach County appeals from an adverse final order in an inverse condemnation proceeding. We affirm.
The real estate in question, which is zoned commercial, is situated at the intersection of Spanish Trail and the main east-west thoroughfare of Palmetto Park Road in Boca Raton. Fronting on Palmetto Park Road the property owners operate a beauty salon thereon. As part of a bridge construction and road-widening project the County is to construct a retaining wall in front of the owners' property which will block access to, and visibility of, the property owner's place of business from Palmetto Park Road. Instead, the property owners will have to make do with alternate access to their property by an indirect winding route through a primarily residential neighborhood involving some 600 yards and a complete circumnavigation of the area in which the beauty salon is situated. The sketch below best illustrates the circumstances.
The trial court found:
This then leaves for resolution by the Court the issue of whether, under the facts of this case, a taking compelling eminent domain proceedings exists as a result of the proposed construction of the retaining wall. The court determines that such a taking has occurred. The plaintiffs own a valuable parcel of commercial property fronting on Palmetto Park Road, a major east-west thoroughfare in Boca Raton. Before the taking, east bound traffic on Palmetto Park Road could turn right, directly into plaintiff's (sic) parking lot. Following the taking, for east bound traffic to reach the property, it will be necessary for that traffic to take about a three-block circuitous route through a residential neighborhood to the rear of plaintiffs' property. . ..
The totality of the evidence convinced this judge beyond any doubt that plaintiffs have been denied "suitable access". The court is thoroughly convinced that the plaintiffs will have lost a lot more than their "most convenient method of access".
(Footnotes omitted.)
The County cites City of Port St. Lucie v. Parks, 452 So.2d 1089 (Fla. 4th DCA 1984), petition for review denied, Parks v. City of Port St. Lucie, 459 So.2d 1041 (Fla. 1984) in support of its argument that the record fails to support the trial judge's holding.
In Parks, we concluded that the property owner did not sustain a compensable loss because the owner had lost only the most convenient access to the property and that mere inconvenience without actual impairment of the use of the property does not constitute a taking. By contrast, in the case at bar the owners' commercial property fronts on a major thoroughfare in the city of Boca Raton. Before construction of the retaining wall, their customers had direct access from that thoroughfare to the business premises. The retaining wall extends directly in front of the owners' property and approximately twenty feet easterly to the adjoining lot; but it ends there and it does not affect any of the remaining seven lots fronting on Palmetto Park Road to the east.
Under the circumstances we must agree with the trial court's conclusion that the owners lost more than their most convenient method of access. 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.
Simply stated, we believe that it was a question of fact, in this nonjury trial, as to whether the walling off of the owners' commercial property and the circuitous alternative to reach it, amounted to more than inconvenience. The trier of the fact decided that it did and we cannot find that he abused his discretion by so concluding. We recognize that the issue we decide is a close and important one and certify the following question to the supreme court as one of great public importance:
ARE THE OWNERS OF COMMERCIAL PROPERTY LOCATED ON A MAJOR PUBLIC ROADWAY ENTITLED TO A JUDGMENT OF INVERSE CONDEMNATION WHEN THE COUNTY GOVERNMENT BLOCKS OFF ANY ACCESS TO THE PROPERTY FROM THE ROADWAY AND LEAVES ACCESS THERETO ONLY THROUGH A CIRCUITOUS ALTERNATIVE ROUTE THROUGH RESIDENTIAL STREETS? AFFIRMED.
ANSTEAD, J., concurs.
DELL, J., dissents with opinion.
I respectfully dissent. I do not disagree with the trial court's finding that the appellees "will have lost a lot more than their `most convenient method of access.'" The issue is whether appellees' prospective losses are compensable under the laws of this state.
Pinellas County v. Austin, 323 So.2d 6 (Fla. 2d DCA 1975), relied on by appellees, is distinguishable. In Austin, the county vacated certain portions of platted streets which led to the Austin's land. The only other access to the Austin's property was from another street by way of a small wooden bridge over a canal. The old wooden bridge was not adequate to support heavy service vehicles such as garbage trucks or fire trucks. The court concluded that the abandonment of the roads resulted in a sufficient impairment of the access to the Austin's property to entitle them to compensation:
On balance, we believe the record is sufficient to support the conclusion that the Austins suffered a sufficient impairment of their right of access as to be different in kind from the public at large. The existence of the other possible means of access may reduce the amount of the recovery, but because of the limitations upon the other access, the Austins are entitled to be compensated for the loss suffered by the vacation of the streets in question.Id. at 9 (emphasis added). In Austin, there was evidence that certain heavy vehicular traffic would not have access to the property, thus depriving the owner of these services. In the present case, the owners have only shown that the retaining wall will cause them to take a 600 yard longer and more circuitous route to reach their property. As stated in Austin:
A landowner must demonstrate that he has suffered special damages which are not common to the general public. . . . The fact that a person loses his most convenient method of access is not such damage which is different in kind from damages sustained by the community at large where his property has suitable access from another street even though the alternate route is longer.
323 So.2d at 8-9 (citations omitted).
While appellees may suffer a decline in their business as a result of the retaining wall, business damages are strictly a matter of legislative grace, not constitutional imperative. Florida Power Light v. First National Bank and Trust Company of Riviera Beach, 448 So.2d 1141, 1142 (Fla. 4th DCA 1984). There is currently no statute providing for business damages where, as in the present case, none of the business owner's property has been taken.
Appellees misplace their reliance on State Department of Transportation v. Stubbs, 285 So.2d 1 (Fla. 1973). Stubbs held that section 338.04, Florida Statutes (1971) mandates jury consideration of severance damages where there is a direct physical taking of property for a limited access facility. The present case involves neither a limited access facility nor an actual physical taking of appellees' property.
I believe this case is controlled by Weir v. Palm Beach County, 85 So.2d 865 (Fla. 1956), where the court stated:
The owner of property abutting a public way has a right of ingress to and egress from his property as well as a right to enjoy the view therefrom. However, these are rights which are subordinate to the underlying right of the public to enjoy the public way to its fullest extent as well as the right of the public to have the way improved to meet the demands of public convenience and necessity. If the improvement for the benefit of the public interferes with the pre-existing means of ingress and egress and view enjoyed by the individual property owner, without an actual physical invasion of the land of the property owner, then again we have the situation where the individual right is subordinate to the public good and any alleged damage suffered is damnum absque injuria. This is so for the simple reason that one who acquires property abutting a public way acquires it subject and subordinate to the right of the public to have the way improved to meet the public need.Id. at 868-69.
Accordingly, I would reverse the judgment of the trial court.