IN THE SUPREME COURT, STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT, STATE OF FLORIDA NEW TESTAMENT BAPTIST CHURCH, INCORPORATED OF MIAMI, FLORIDA, Petitioner, vs. CASE NO. SC08- STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent. / JURISDICTIONAL BRIEF OF PETITIONER, NEW TESTAMENT BAPTIST CHURCH, INCORPORATED OF MIAMI, FLORIDA ON PETITION FOR REVIEW OF THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA CASE NO. 4D S. CARY GAYLORD, ESQUIRE Florida Bar No PAUL D. BAIN, ESQUIRE Florida Bar No GAYLORD MERLIN LUDOVICI DIAZ & BAIN 5001 West Cypress Street Tampa, FL Telephone: (813) Facsimile: (813) Attorneys for Petitioner

2 TABLE OF CONTENTS TABLE OF CITATIONS... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND THE FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 I. AS CERTIFIED, THE LOWER COURT S DECISION HEREIN EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THE SECOND DISTRICT COURT OF APPEAL II. THE LOWER COURT S DECISION HEREIN EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THIS COURT ON THE SAME QUESTION OF LAW CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE APPENDIX INDEX TO APPENDIX ii

3 TABLE OF CITATIONS CASES Dolan v. City of Tigard, 512 U.S. 374 (1994)... 3, 5, 6 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 5 New Testament Baptist Church Incorporated of Miami v. State of Florida, Department of Transportation, 33 Fla. L. Weekly D2462 (Fla. 4th DCA Oct. 22, 2008)... passim Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)...3, 6 Ockey v. Lehmer, 189 P.3d 51 (Utah 2008)... 7 Reed v. Fain, 145 So. 2d 858 (Fla. 1962)... passim Sarasota County v. Taylor Woodrow Homes Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995)... passim OTHER AUTHORITIES Art. V, 3(b)(3), Fla. Const.... 3, 4, 7, 9 Fla. R. App. P (a)(2)(A)(iv)... 3, 4, 9 Fla. R. App. P (a)(2)(A)(vi)... 3, 4, 7, 9 iii

4 PRELIMINARY STATEMENT New Testament Baptist Church, Incorporated of Miami, Florida, Petitioner here and Appellant below, refers to itself as the Church. The Church refers to Respondent, also Appellee below, State of Florida Department of Transportation, as FDOT. The Church refers to the Appendix accompanying the Jurisdictional Brief by the prefix App. followed by the page number. The decision of the lower court is currently reported as New Testament Baptist Church Incorporated of Miami v. State of Florida, Department of Transportation, 33 Fla. L. Weekly D2462 (Fla. 4th DCA Oct. 22, 2008). STATEMENT OF THE CASE AND THE FACTS The facts of this case, as set forth in pertinent part in the Fourth District Court of Appeal s opinion below, are as follows: In 1990, the church dedicated 7.5 acres of its 96-plus acre parcel of vacant land to [Broward County to comply with the Broward County Trafficways plan on Griffin Road, a 120 foot Major Arterial], as a condition of receiving plat approval from the county to build a church and school. The dedication condition was pursuant to county ordinances. The plat was filed in Since that time, the church has continued to use the 7.5 acres. In 2005, this eminent domain proceeding was brought [by FDOT] to condemn a separate parcel for a road widening project, and the church s inverse condemnation counterclaim seeks compensation for the department s use of a portion of the previously dedicated 7.5 acre parcel for the road project. 1

5 The church claimed it still owned the previously dedicated/platted land because the dedication was an unconstitutional condition of plat approval and, therefore, void..... The church... maintains that the forced exaction in the 1992 plat was void from inception as an unconstitutional condition of plat approval because: (1) there was no essential nexus between the precondition to development approval and a legitimate state interest; and (2) there was no rough proportionality between the forced exaction and the projected impact of the proposed church/school development. As such, the church asserts that the forced exaction had no legal effect and conveyed nothing, and the passage of time could not breathe life into a plat dedication that was a nullity. The church also claims that if the statute of limitation applies [to its claim that FDOT has physically taken its property], the time should not start running until the department commenced to use the parcel as part of a road widening in (App. 1-2, 3). The Fourth District recognized that in Sarasota County v. Taylor Woodrow Homes Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995) the Second District held that the developer s constitutional claims against a twenty-year-old development agreement with the County were not barred by the statute of limitations. (App. 4). However, the Fourth District expressly disagreed with the Second District that the statute of limitations did not bar constitutional claims against a twenty-year-old agreement. (App. 5). In so doing, the Fourth District held that a constitutionally infirm conveyance is not void ab initio, but merely voidable, and upheld the summary judgment entered by the Trial Court on the basis that the Church s claim 2

6 was time-barred by the statute of limitations. (App. 6). The Fourth District certified conflict with Taylor Woodrow Homes. (App. 5). On November 10, 2008, the Church timely filed its notice invoking this Court s discretionary jurisdiction pursuant to Article V, Section 3(b)(3) of the Florida Constitution and Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv) and (vi) on the basis of the certified conflict with Taylor Woodrow Homes and on the additional basis of express and direct conflict with a decision of this Court on the same question of law in Reed v. Fain, 145 So. 2d 858 (Fla. 1962). SUMMARY OF ARGUMENT The Fourth District certified conflict in this case with the Second District Court of Appeal s decision in Sarasota County v. Taylor Woodrow Homes Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995). The Fourth District held that the statute of limitations barred the Church s claim for a physical taking by FDOT predicated on a constitutionally infirm plat dedication being void ab initio. The Fourth District s decision conflicts with the Second District s decision in Taylor Woodrow Homes, which held that the statute of limitations does not bar the constitutional claim that a condition for development approval is void ab initio. Both cases involved a claim that a condition of development approval was constitutionally infirm and void under Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). In both 3

7 cases, the statute of limitations was argued in defense against the owner/developer s constitutional claims of infirmity. The Second District held that the developer was entitled to the benefit of current constitutional case law while the Fourth District did not. The Fourth District concluded that the statute of limitations validates an otherwise constitutionally void forced exaction, finding it merely voidable. In reaching its conclusion, the Fourth District also ignored this Court s long-standing pronouncement that a constitutionally infirm conveyance was and is void not merely voidable. It is not valid even as between the parties. Reed v. Fain, 145 So. 2d 858, 865, 866 (Fla. 1962) (holding that the statute of limitations cannot make valid that which is void. ). ARGUMENT I. AS CERTIFIED, THE LOWER COURT S DECISION HEREIN EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THE SECOND DISTRICT COURT OF APPEAL. It is well settled that this Court s jurisdiction to review decisions of district courts of appeal pursuant to Article V, Section 3(b)(3) of the Florida Constitution, and Florida Rules of Appellate Procedure 9.030(2)(A)(iv) and (vi) on the basis of conflict is invoked by (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court or another district court, or (2) the application of a rule of law to produce a different result in a case which involves 4

8 substantially the same facts as a prior case. Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). In its decision in this case, the Fourth District certified conflict with a decision of the Second District, and the Fourth District s decision expressly and directly conflicts with a decision of this Court on the same question of law. In Sarasota County v. Taylor Woodrow Homes Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995) the County filed a complaint for declaratory relief and specific performance of a twenty-year-old development agreement that required the developer to dedicate its waste treatment facility to the County. After noting that the twenty-year-old contract was enforceable, the Second District concluded that the developer is entitled to the benefit of current constitutional case law, but it must establish that the factual circumstances in 1974 rendered its agreement invalid at that time. Id. at Recognizing new developments in constitutional law under Dolan v. City of Tigard, 512 U.S. 374 (1994), the Second District found that the developer s claims against a twenty-year-old agreement were not barred by the statute of limitations. 652 So. 2d at The Second District also held that the developer did not waive constitutional rights by entering into a development agreement and could later challenge the constitutionality of its conditions. Id. The Second District noted that the clause requiring the forced dedication of the facility may be severable and 5

9 remanded the case for proceedings to determine whether the exaction satisfied Dolan under circumstances that existed in Id. at There is no material distinction in the facts or the dispositive legal issue addressed by the Second District in Taylor Woodrow Homes and the Fourth District in the instant case. Both cases involved a forced exaction as a condition of development approval. In both cases, the owner/developer argued that the condition of development approval was constitutionally infirm and void under Nollan and Dolan. The owner/developer did not argue that the forced exaction constituted a taking but that it was void. Both cases involved the defense that the claims were time-barred by the statute of limitations. The Taylor Woodrow Homes court concluded that the developer s constitutional claims against a twenty-yearold development agreement with the County were not barred by the statute of limitations, and the Fourth District Court of Appeal reached the contrary conclusion in the case at bar. (App. 5). On virtually identical facts, the Fourth District in this case announced a rule of law governing the application of the statute of limitations against constitutional claims of forced exactions under Nollan and Dolan which conflicts with a rule previously announced by the Second District in Taylor Woodrow Homes. Therefore, presently, the fate of a constitutional claim in Florida is treated significantly differently based solely upon the geographic location of that property. 6

10 Accordingly, this Court has jurisdiction to exercise its discretionary review herein pursuant to Article V, Section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi). Petitioner respectfully urges the Court to do so. II. THE LOWER COURT S DECISION HEREIN EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF THIS COURT ON THE SAME QUESTION OF LAW. In Reed v. Fain, 145 So. 2d 858, 866 (Fla. 1962), this Court held that the statute of limitations did not and could not make valid that which is void as constitutionally infirm: We can see no difference between a statute which might purport directly to make valid a deed which was void at its inception, and one which bars a person from asserting the validity of such instrument after sheer expiration of a given period of time with no change in conditions or circumstances. The end result is the same. Id. at 870. This Court pronounced the rule of law that a constitutionally infirm conveyance was and is void not merely voidable. It is not valid even as between the parties. Id. at 865 (emphasis added). Notwithstanding this Court s declaration in Reed that a constitutionally infirm conveyance is void and not valid even as between the parties, the Fourth District relied upon a case from the Utah Supreme Court to reach the contrary conclusion in the case at bar. In Ockey v. Lehmer, 189 P.3d 51 (Utah 2008), the private conveyance of a trust corpus was reviewed without any constitutional 7

11 analysis. No reasonable basis can be cited for disregarding this Court s decision in Reed addressing a constitutionally infirm conveyance in favor of a decision of the Utah Supreme Court addressing a private deed. In addition, there is a compelling statewide interest in this Court reconciling the conflict between the instant case and Reed. In its decision, the Fourth District made the sweeping declaration that a constitutionally void forced exaction does not clearly violate public policy because, somehow, the unconstitutional acts of the County against its own citizens do not harm the general public. (App. 7). Given the significant number of landowners affected by the Fourth District s declaration that the County s unconstitutional acts do not violate public policy, resolution of this conflict will go far beyond an adjudication of the rights of the particular litigants before the Court. The Court s disposition of this matter will establish precedent that will affect every condemnor in the State as well as every Florida property owner affected by a forced exaction. Government must never find comfort in the error that a forced exaction of private property conveyed by unconstitutional means will be allowed to stand. 8

12 CONCLUSION The lower court s decision is in express and direct conflict with the Second District Court of Appeal s decision in Sarasota County v. Taylor Woodrow Homes Ltd., 652 So. 2d 1247 (Fla. 2d DCA 1995). The lower court s decision also is in express and direct conflict with a decision of this Court on the same question of law in Reed v. Fain, 145 So. 2d 858 (Fla. 1962). This Court has a proper jurisdictional basis to exercise its discretionary review pursuant to Article V, Section 3(b)(3) of the Florida Constitution and Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv) and (vi). WHEREFORE, Petitioner, New Testament Baptist Church, Incorporated of Miami, Florida, respectfully requests that this Honorable Court exercise its discretionary jurisdiction over this cause and grant review herein. Respectfully submitted, S. CARY GAYLORD, ESQUIRE Florida Bar No PAUL D. BAIN, ESQUIRE Florida Bar No GAYLORD MERLIN LUDOVICI DIAZ & BAIN 5001 West Cypress Street Tampa, FL Telephone: (813) Facsimile: (813) Attorneys for Petitioner 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail upon counsel for Appellee, Gregory G. Costas, Esquire, Assistant General Counsel, Department of Transportation, Haydon Burns Building, MS 58, 605 Suwannee Street, Tallahassee, Florida ; and counsel for Appellee, James D. Rowlee, Esquire, Assistant County Attorney, Broward County Attorney s Office, Governmental Center, Suite 423, 115 South Andrews Avenue, Fort Lauderdale, FL 33301this 14th day of November Attorney CERTIFICATE OF TYPEFACE COMPLIANCE This brief uses 14 point Times New Roman type, a font that is proportionately spaced. Attorney 10

14 IN THE SUPREME COURT, STATE OF FLORIDA NEW TESTAMENT BAPTIST CHURCH, INCORPORATED OF MIAMI, FLORIDA, Petitioner, vs. CASE NO. SC08- STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent. / APPENDIX TO JURISDICTIONAL BRIEF OF PETITIONER, NEW TESTAMENT BAPTIST CHURCH, INCORPORATED OF MIAMI, FLORIDA ON PETITION FOR REVIEW OF THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA CASE NO. 4D S. CARY GAYLORD, ESQUIRE Florida Bar No PAUL D. BAIN, ESQUIRE Florida Bar No GAYLORD MERLIN LUDOVICI DIAZ & BAIN 5001 West Cypress Street Tampa, FL Telephone: (813) Facsimile: (813) Attorneys for Petitioner

15 INDEX TO APPENDIX Pages Opinion New Testament Baptist Church Incorporated of Miami v. State of Florida, Department of Transportation, Case No. 4D Filed: October 22, 2008