CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 3236, 2009 WL 981218
...nt's property and allowed the water diversion to continue after an emergency passed. We hold as a matter of law that the County's action constitutes a taking of Appellant's private property for a public purpose and that her claim is not precluded by section 252.43(6), Florida Statutes....
...riods of 1996 through 2004, and 2005 onward, and final judgment was entered for the County. The trial court ruled in part that diverting the water could not constitute a taking because the County's reconfiguration followed declared emergencies under section 252.43(6), Florida Statutes....
...As in Smith, the water diversion here is a permanent or continuous physical invasion of Appellant's property, rendering it useless and permanently depriving Appellant of the beneficial enjoyment of her property. We assume arguendo that the County's reconfigurations in 1995 and 2005 were authorized pursuant to section 252.43(6)....
...("No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner[.]"); Wilton v. St. Johns County,
98 Fla. 26,
123 So. 527, 533-34 (1929) (explaining that the power of eminent domain can be exercised only for a valid public purpose). We agree with Appellant and hold that section
252.43(6) does not grant the County immunity during an emergency and thus preclude Appellant, as an innocent property owner, from initiating a takings claim....
...Summerwinds Apartments Assocs., Ltd.,
493 So.2d 417, 418 (Fla.1986) (holding that a statute authorizing television service providers to enter private property without compensation to owners is unconstitutional). Regardless of the County's statutory right to excavate drainage paths to preserve property under section
252.43(6), the Florida Constitution requires compensation for an adversely affected owner....
...1st DCA 2006) ("State constitutions are limitations upon the power of state legislatures. Consequently, a statute enacted by the Legislature may not restrict a right granted under the Constitution.") (citations omitted), aff'd,
984 So.2d 478 (Fla.2008). Thus, the County's statutory authority under section
252.43(6), Florida Statutes, must yield to Article 10, section 6 of the Florida Constitution, which requires the County to compensate Appellant. We find that Appellant's claims are not precluded by section
252.43(6), Florida Statutes, and that two takings occurred when the County diverted water across Appellant's property the first taking occurred during the period of 1995 through 2004, and the second from 2005 to the present date....
...Hemby as trustee. Mrs. Hemby died while this appeal was pending, and her estate's interest in the suit was transferred to the Patricia S. Hemby Revocable Trust, with her daughter, Cozette R. Drake, as successor trustee of both trusts. Appellant is Ms. Drake. [2] Section 252.43(6), Florida Statutes, states: (6) Nothing in this section applies to or authorizes compensation for the destruction or damaging of standing timber or other property in order to provide a firebreak or damage resulting from the release o...
