Opinion
5D2023-2717
10-04-2024
Thirrel A. Altman, Jr., Individually and as Trustee of the Thirrel A. Altman, Sr., Trust U/T/D March 16, 2021, Daniel Hasratian and Karine Melkoumian, Appellants, v. Brevard County, Florida and Hubbard Investments, Inc., Appellees.
Edgard Lopez, of Harris Harris Bauerle Lopez, Winter Park, for Appellants. Laura K. Wendell, of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, and Justin E. Caron, of the Office of the Brevard County Attorney, Assistant County Attorney, Viera, for Appellee, Brevard County, Florida.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Brevard County LT Case No. 2023-CA-015474. Dale Curtis Jacobus, Judge.
Edgard Lopez, of Harris Harris Bauerle Lopez, Winter Park, for Appellants.
Laura K. Wendell, of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, and Justin E. Caron, of the Office of the Brevard County Attorney, Assistant County Attorney, Viera, for Appellee, Brevard County, Florida.
No Appearance for Appellee, Hubbard Investments, Inc.
PER CURIAM
AFFIRMED.
WALLIS and KILBANE, JJ., concur.
MACIVER, J., dissents with opinion.
MACIVER, J., dissenting.
Appellants, Thirrel A. Altman, Jr. (individually and as trustee of the Thirrel A. Altman Sr. Trust), Daniel Hasratian, and Karine Melkoumian, appeal an Order of Taking issued by the 18th Judicial Circuit. Appellants are owners of beachside properties in Brevard County. The subject order vests the County with "a perpetual and assignable easement and right-of-way[] in, on, over[,] and across" the owners' properties.
This case was traveling with case no. 5D2023-2763 which raises the same issues on appeal.
Because the Order of Taking suffers from a number of interpretive errors, I would reverse the order and remand for further proceedings.
History
Starting in 2018, Brevard County has sought easements over the subject properties as part of a larger scale beach renourishment project. To facilitate the renourishment project, the County had entered into a partnership agreement with the Army Corps of Engineers. The Corps would facilitate federal funding for the project consistent with the agreement. Among other provisions, the agreement at that time required the County to ensure "continued public use of such shores compatible with the authorized purposes of the project."
In July of 2020, this court reversed a previous Order of Taking. Among the issues addressed by the court was whether the County failed to prove necessity when it sought easements the scope of which exceeded what was required by the agreement with the Corps. Importantly, the agreement only required continued public use of such shores. The public use and access that existed prior to the taking only included the sandy beach, and the easements sought by the County would extend that use over vegetative dunes and, in some cases, a boardwalk or steps. Because the agreement required only the open and sandy beach portion of the condemned properties to be publicly accessible, this court found that the County failed to establish a reasonable necessity for the public use aspect of the easements.
See Altman v. Brevard Cnty., 300 So.3d 347 (Fla. 5th DCA 2020).
After the reversal of the Order of Taking, the County's efforts continued. Rather than narrow the scope of the public use portion of the easement to avoid exceeding what was necessary to meet the requirements of the renourishment agreement, the County instead entered into an amended agreement which purported to expand the public use provision. The new language of the public use and access provision provided that the county would ensure "the public use of, and access to, such shores by all on equal terms in a manner compatible with the authorized purpose of the project." Notably, the new agreement struck reference to continued public use and access. In February of 2023, the County filed a new eminent domain petition.
After a two-day hearing in July, the trial court issued a new Order of Taking on August 1, 2023. The court's initial findings recognized that the power of eminent domain is one of the most harsh proceedings known to the law, a property owner has a fundamental constitutional right to own, possess, and protect their property, and the court must strictly construe eminent domain statutes against the government.
Peavey-Wilson Lumber v. Broward Cnty., 31 So.2d 483, 485 (Fla. 1947).
The trial court then found that the property owners made no objection to easements for beach renourishment or to mitigate beach erosion damages, but that the County was seeking to obtain "public use" and "accessible for all" for the entire easement. The State of Florida and the County did not require the easement to be for public use and accessible by all. The only reason that the County sought public use and accessibility for the easement was to meet the requirements imposed by the federal government.
At issue is the trial court's rejection of an argument by the property owners that the public use provision was limited by the term "shores," which generally refers to the areas between high and low tide often referred to as the wet sand. The court reasoned that the term was used in its lower-case form and was therefore not a term of art. It found the term to refer to "the land the engineers and experts have designated for the beach renourishment project," i.e. the entire easement.
Interpretations of "Shores"
The trial court gives short shrift to the property owners' argument that the federal government has not required that the public use and access provision must apply to the entire easement. The argument can be broken into two parts. First that the use of the term "shores" does not mean the entire easement. Second that the federal government would accept an interpretation of "shores" that only applied to the wet sand area of the beach and thus would not withhold funding. Because the court rejected the first part of the argument, it failed to address the most salient aspect of the argument-that the federal government would not withhold funds but for the County's interpretation of the provision. Indeed, the meaning of the term "shores" is only important to the degree that informs the key question of whether the federal government would provide funding, which in this case is the touchstone of the necessity question.
Notably, the dispute over contractual language here is not a dispute between the parties over their respective obligations. That is, the federal government is not challenging the interpretation of the term "shores" to say that they would not provide funding. Rather, the County is exploiting one possible definition (and presuming that their definition is what the contract requires) to expand their powers of eminent domain. Here the terms of the contract operate as the legal mechanism to effect a taking and thus should be subject to the same strict scrutiny against the government that would be applied to a statute which operated as a taking. However, even if we decline to address the provision using strict scrutiny, it is enough that the trial court's interpretation is too much of a definitive leap to dismiss the second aspect of the argument-the prospect that the Corps does not insist on the broad scope of the public use provision that is asserted by the County.
The trial court rejected the property owners' argument because the term was not capitalized and thus was not a term of art. That of course, leaves a vacuum regarding what the term "shores" does mean. The court found that it means the land the engineers and experts have designated for the beach renourishment project. In other words, the court found that "shores" means "easement." The court, without analysis, ostensibly made this finding based upon its perceived plain meaning of the term in context. In my view, whether analyzed under strict scrutiny or not, the court's interpretation is simply not compelled by the terms of the agreement. A natural reading of the public use provision would allow that the beach itself (whether defined as wet sand or otherwise) must be open and accessible to the public, but that to protect that public beach, the easements might necessarily extend further than the public portion. There is simply nothing in the agreement or in the record which compels a different interpretation, and certainly nothing that further compels the leap made by the trial court that the term "shores" means the entire easement.
Would the federal government refuse funding?
The second part of the property owners' argument was that the federal government would allow federal dollars to be used for the beach renourishment project even if the County was only seeking "public use" and "accessible to all" to apply just to the wet sand area. Because the trial court held the term "shore" unambiguously meant the entire easement, it failed to consider the lack of evidence regarding how the federal government would view the public use provision. Because the federal government's view is the touchstone question on the issue of necessity, and because it was not actually foreclosed by the court's assertion of the agreement's clarity, it was error to disregard the property owners' assertion.
As noted above, this is not a contract dispute. The federal government is not a party. The Army Corps of Engineers has not filed suit regarding the terms of the agreement. The Corps has not intervened in the case. No representative from the Corps was called as a witness. No testimony was given by the Corps regarding their interpretation of the public use provision. The testimony that was provided by the County's witness was that the Corps required that the funds be used for public beaches, that the provision in the earlier permutation of the agreement was provided by the Corps, and that the amended language was sent to the Corps to ensure that it met their requirements. There was nothing in the testimony that suggested the change was insisted on by the Corps, or that the earlier standard language was unacceptable to the Corps. Most importantly, there is no evidence that the Corps insists upon the County's obtuse interpretation of the public use provision. Indeed, given that the Corps previously appeared satisfied by a provision that only required continued public use and did not require the level of intrusion the County claims is necessary, I doubt that the insistence is truly being made by the federal government. Regardless, we have no evidence that the Corps insists on the County's interpretation, and that is dispositive here. I would therefore reverse the Order of Taking.