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HomeMy WebLinkAboutSubmittal-Ben Fernandez-Little River Club-Misc. Docs. Presented to Support Request for Appeal of ExceptionLittle River Club File ID 1 1-00027xc City Commission April 28, 2011 j - 00027XC - �bail � �- Y-, rerF-,� SUBMITTED INTO THE PUBLIC RECORD FOR ITEMe2 ON 4�ael� Li The 'er Club - j"Yji SC . .Doc_ _ (c5en±ecj 1-O &, Or±? U� CSt BGRCOW RADGLL b� FERNAN DEZ P ZONI NO, LAND USE ANC ENVIRONMENTAL LAW Zoning Map Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk BERCOW RADELL & FERNAN DEZ ZONING. LA. NC. USE A IVg ENVIRONMENTAL LAW i i Li 1 1 i T Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk Resolution No. 36942 September 15, 1965 Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk BERCOW RADELL & FERNAN DEZ ZONING. LANID IJSE ANE ENVIRONMENTAL LAW Apip 410 RESOLUTION NO. S Q 7 j A RESOLUTION GRANTING A CONDITIONAL USE AS LISTED IN ORDINANCE NO. 6871, ARTICLE V, SECTION 1 (6) (c) TO PERMIT USE OF LOTS FOR OFF-STREET PARKING FACILITIES, PROVIDING LOUVERED WALL FOR SAID AREA, IN CONJUNCTION WITH COMMERCIAL STORES ON '19T1{ STREET, WITH OPENING ON N.S. 80TH STREET, LOCATED LN h w R-1 (ONE FAMILY DISTRICT AT N.E. 89TH STREET (SOUTH SIME) BETWEEN 7TH AND 6TH AVENUES LOTS 8 AND 9, BLOCK "A", COMMERCIAL SHORE CREST (17-16). WHEREAS, the City Planning and Zoning Board of the City of Miami at its meeting held on the 12th day of July, 1965 adopted by a 9 to 0 vote its Resolution No. 65-289 recommending the granting of a conditional use permit to Lillian E. Wolf and Lester Rosenthal, and this Commission deems it advisable in the interest of the general welfare of the City of Miami to grant the conditional use permit requested on the ground that a refusal would result in practical difficulties and unnecessary hardship to the applicant under an R-1 (One Family) District; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. That the application of Lillian E. Wolf and Lester Rosenthal for a conditional use permit as listed in Ordinance No, 6871, Article V, Section 1 (6) (c) to permit uae of lots for off-street parking facilities, providing louvered wall for said area, in conjunction with commercial stores on 79th Street, with opening on N. E. 80th Street, located in an R-1 (One Family) District at N.E. 80th Street (South Side) between 7th and 8th Avenues, Lots 8 and 9, Block "A", COMMERCIAL SHORE CREST (17-16), be and the same is hereby granted. Section 2. This conditional uae shall become null and void unless the use is commenced within six months of the effective date of this Resolution. One six-month extension may be granted by the City Manager pursuant to the provisions of Article XXXI, of Ordinance No. 6871. PASSED AND ADOPTED this / $ day APPROVED ES TO FORM AND LEGALITY: r epi EDWARD J ASSISTANT CITY ATTORNEY Section 4, "DOCUMENT INDEX. -- 5 :-6s/,n N tiesr ••. 67 ITEM NO.___1�--- ��,,x! items PZ.2 on 04-28-11 c 0 a E 0 L 1- m Y V CJ Code 1976 Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk BERCOW RADELL & FERNAN DEZ CM! I ND, LAND USE ANI O ENVIRONMENTAL LAW Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk ONE FAMILY DWELLING — R-1, R-1A, R-1B DISTRICTS The following regulations shall apply in all R-1, R-1A, and R-1B Districts: USE REGULATIONS No building or structure, or part thereof, shall be erected, altered or used, or land or water used, in whole or in part, for other than one or more of the following uses. (1) One -Family Dwelling. (2) Publicly owned and operated recreation buildings and facilities, playgrounds, playfields, parks, beaches. (3) Existing cemetery. (4) Railroad right-of-way, not including switching, freight, or storage tracks, yards, buildings or maintenance structures. (5) Publicly owned and operated library, art gallery or museum. (5-A) Wet dockage or moorage of vessels sixteen (16) feet and over in length, not to exceed three (3) vessels per lot, only one (1) of which may be a non -owned vessel. An accessory use permit is required for non -owned vessels, sixteen (16) feet or over in length. (ORD. 8481) (6) The following uses if approved as a "Conditional Use": (a) Educational, recreational and social centers not operated for profit and in- tended to serve surrounding neighborhood; (b) Open parking lots for the parking of private passenger vehicles accessory to a principal use. The parking lot shall be arranged, maintained and and used in accordance with requirements set forth in Article XXIII, Section 8 (1). (ORD. 8066) (c) Open parking lots for parking of private passenger vehicles accessory to a non -conforming commercial use in a residential district. The provision of Article XXVIII, Section 1 (5) (a), shall be applicable to the termination of said parking at the time the non -conforming use such parking services is fully amortized. The parking lot shall be arranged, maintained and used in accordance with the requirements set forth in Article XXIII, Section 8 (1). (ORD. 8066) (d) Church. (e) The expansion of an existing cemetery when said expansion or enlargement abuts an existing cemetery and providing said expansion shall be in accord- ance with all other provisions of this ordinance. (ORD. 7075) (f) An addition to a conforming or non -conforming building or structure which contains a non -conforming RESIDENTIAL USE, subject to the Provisions of ARTICLE XXVIII, Sec. 1 (1), (a) through (f) or Section 2, (2) (a) and or Sec. tion 2, (3)(a). (ORD. 7121) (g) The care of foster children in a home having more than six, but not more than eight children, provided that the home is approved by the Florida State Welfare Department, and operated by an agency accredited by the Child Welfare League of America. (ORD. 7251) (h) RESIDENTIAL DEVELOPMENT OF A PLANNED UNIT NATURE, SUBJECT TO THE FOLLOWING: (ORD. 7396) 1. The density shall not exceed one (1) dwelling unit for each six thousand (6,000) square feet of site area. 2. No building shall contain more than one (1) dwelling unit and all such buildings shall be separated by at least (10) feet. Buildings may, how- ever, have connecting roof structures, provided the above separation is maintained between walls of buildings. The height of such buildings shall not exceed two and one-half (21/2) stories or thirty-five (35) feet. 3. The approval by the Commission, after review by the Board, of a de- velopment plan in accordance with the provisions of Article IV, Section 15 of the Ordinance. (i) Repealed (ORD. 8066) (j) DAY NURSERY when located not less than twenty (20) feet from any other lot in an "R" District, provided that there shall not be less than seventy-five (75) square feet of outdoor play space for each child enrolled and provided further, that there is established and maintained one or more completely, and securely fenced play lots which, if closer than fifty (50) feet to any property line, shall be screened by a masonry wall or by a compact ever- green hedge not Tess than five (5) feet in height. (ORD. 7609) 26 RfV. 1.1-76 (9) Plans for buildings or uses requiring off-street loading facilities under the provi- sions of this Article shall clearly indicate the location, dimensions, clearance and access of all such required off-street loading facilities. ion 8.— CONDITIONAL USE OFF-STREET PARKING LOTS (ORD. 8066) (1) Accessory Parking Lots in Residential Districts. (a) Parking lots permitted herein shall not be utilized to meet the number of off- street parking spaces required by this Article, unless otherwise provided by this Ordinance, commercial or industrial uses in existing structures that have not provided or do not meet the required number of off-street spaces may provide an off-street parking lot pursuant to this regulation. Parking lots per- mitted herein shall not be located further than three hundred (300) feet from the premises they are intended to serve. (b) The parking lot shall provide a front yard not less than twenty (20) feet in depth. When a parking lot is separated from a commercial or industrial dis- trict, by other than an alley, a side street yard of fifteen (15) feet in depth shall be provided. The yard areas shall not be used for parking. (c) A solid textured masonry wall or a living hedge shall be placed between the parking area and the required yard areas. Walls and hedges shall be a min- imum of three (3) feet and a maximum of five (5) feet in height, and in accord with Article IV, Section 17. (d) Where access is available from an abutting commercial property which the parking lot is to serve or from an adjacent alley, no access opening will be permitted through a required yard area unless the parking lot abuts and access is from a street classified as an arterial. Where access from an abutting commercial property or alley is not available, one opening for ingress and egress may be permitted through a yard area, limited to ten (10) feet in width; with a wall and/or hedge opening twelve (12) feet in width. (8137) (e) Parking lots permitted herein shall not be used as commercial parking lots (i.e. there shall be no charge made for parking). (f) A parking lot shall be developed in accord with the application regulations set forth in Section 2 and 3 of this Article. ction 9.— ILLEGAL OFF-STREET PARKING: (ORD. 8069) (1) It shall be illegal to use any lot for parking unless one of the following condi- tions exists: (a) The lot is improved in accord with the requirements of Sections 2 and 3 of this Article. (b) The lot has been previously approved and a permit and/or license issued. (c) The lot is permitted pursuant to Article IV, Section 33. (2) The illegal use of a lot for parking, as set forth above, shall be immediately dis- continued and the lot shall be barricaded so as to prevent further usage for off- street parking. - Any commercial parking lot (fee charged) that has been previously approved and a permit and/or license issued prior to December 31, 1966, and which does not meet the requirements of Sections 2 and 3 of this Article, shall be brought into compliance with Section 2 and 3 of this Article with nine (9) months. (,3) 78 REV. 2-1-74 Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk valuation of such building or structure at the time when the building or structure became non -conforming. (2) EXTENSION OF USE: The non -conforming use of a non -conforming building may be extended throughout any part of the building clearly designed for such Use, but not so used at the effective date of this Ordinance. (3) RESTORATION DAMAGED BUILDINGS: (a) A non -conforming building or structure which is damaged or partially destroyed by fire, flood, wind, earthquake, or other calamity or act of God or the public enemy, to the extent of not more than fifty percent (50%) of its value at that time, may. be restored and the occupancy or use of such building, structure, or part thereof, which existed at the time of such partial destruction, may be continued or resumed, provided restoration shall be started within a period of six (6) months. (b) Nothwithstanding more restrictive provisions of Section 1 (1) (a) thru (f) of this Article, a non -conforming building or structure which is not non -conforming as to USE regulations may be structurally altered, but not added to, provided the structural alterations to any one (1) building or structure so restored shall not exceed in value twenty percent (20%) of the assessed valuation of such building or structure. (ORD. 6994). (4) NON -CONFORMING HOUSE CAR, CAMP CAR, OR TRAILER (HOUSE TRAILER) for which a temporary permit has been previously issued for occupancy by the Building Department of the City of Miami, and approved by the Health Depart- ment, may continue to remain it its present location for the duration of said permit, but shall be removed immediately upon expiration of said permit. (5) CONTINUATION AND CHANGE OF USE: (a) The non -conforming use of a non -conforming building or structure may be continued, except in all "R" (Residential) Districts, any non -conforming building or structure which was designed and arranged, and which is used for a use permitted ony in a Commercial or Industrial District, shall be removed or it shall be altered and converted to a conforming building or structure designed for and used for a use permitted in the District in which it is located, within six (6) months after the termination of the respective periods of time set out hereinafter, such periods shall I be computed from the effective date of this Ordinance. The following are hereby established as the reasonable periods for amortization of the normal, useful life of each class of building and type of construction above the foundations, said types of construction being as defined and specified in the South Florida Building Code. 1. Type A Fire Resistive Construction 30 years 2. Type II Heavy Timber Construction 25 years 3. Type III Ordinary Masonry Construction 20 years 4. Type IV Metal Frame Construction 12 years 5. Type V Wood Frame Construction 7 years (b) The non -conforming use of a non -conforming building or structure may be replaced by a different use permissible in the same zoning district as the original non -conforming use or a use in a more restricted zoning district provided, the change of use occurs within six (6) months. Any such non- conforming building or structure which is vacant for a continuous period of more than six (6) months shall not thereafter be occupied except by a use which conforms to the use regulations of the zone in which such non- conforming building is located. Section 2:— CONFORMING BUILDINGS OR STRUCTURES The non -conforming use of a conforming building or structure is provided for in this Section. (1) CONTINUATION AND CHANGE OF USE (a) The non -conforming use of a conforming building or structure may be con- tinued, except that in the "R" Zones any non -conforming commercial or industrial use of a residential building or residential accessory building shall be discontinued within five (5) years of the effective date of this Ordinance. (b) The non -conforming use of a conforming building or structure may be replaced by a different use permissible in the same zoning district as the Submitted into the public record in connection with 1 10 REV. 1-1-67 items PZ.2 on 04-28-11 (, Priscilla A. Thompson City Clerk Letter to Walter Plesic Neighbor Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk BERCOW RADELL & FERNANDEZ ZONING. LANCP USE ANC. ENVIRONMENTAL LAW 1-10 BERCOW RADELL & FERNAN DEZ ZONING, LAM USE ANJI ENVIRONMENTAL LAW Direct: 305-377-6235 E-Mail: BFernandez@BRZoningLaw.com VIA CERTIFIED US MAIL Article No. 7008-1300-0001-0328-2513 March 22, 2011 Mr. Walter Plesic 746 NE 80th Street Miami, FL 33138-4711 Re: Little River Club - Shared Access Agreement Dear Mr. Plesic: We represent the Little River Club the owners of the property at 753 NE 79th Street, immediately abutting your property located at 749 NE 79th Street. The purpose of this letter is to inquire as to whether you would be interested in entering into a shared access agreement for the benefit of the Little River Club. The Little River Club is prepared to compensate you in return for the right to utilize a portion of your property for shared access. The existing space between the Little River Club building and the shared property line is only approximately 8 feet wide. The minimum vehicular access width required by the City of Miami Public Works Department is 14 feet. Accordingly, the shared access agreement with the Little River Club would need to provide an approximately a 7 foot wide strip, immediately adjacent to the shared property line, that would accommodate vehicular access to the Little River Club parking area located behind the building. I will contact you next week to further discuss our request. Thank you for your attention to this matter. Sinc , Ben Fernandez BF/ bl cc: Robert Hartison WACHOVIA FINANCIAL CENTER • 200 SOUTH BISCAYNE BOULEVARD, SUITE 850 • MIAMI, FLORIDA 33131 PHONE. 305.374.5300 • FAX. 305.377.8222 • WWW.BRZONINGLAW.COM Palm Beach County v. Tessler, 538 So. 2d 846 Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk BERCOW RADELL L FERNAN DEZ ZO N I NO, LAN 17 USE ANC. ENVIRONMENTAL LAW Page 2 of 7 Westlaw 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) Supreme Court of Florida. PALM BEACH COUNTY, Petitioner, v. Mildred TESSLER, et al., Respondents. No. 71962. Feb. 16, 1989. Owners of commercial property brought in- verse condemnation action against county govern- ment. The Circuit Court, Palm Beach County, Timothy P. Poulton, J., held for owners, and county appealed. The District Court of Appeal, Letts, J., 518 So.2d 970, affinned, and question was certi- fied. The Supreme Court, Grimes, J., held that own- ers of commercial property located on major public roadway were entitled to judgment of inverse con- demnation when county government blocked off access to property. Question answered. West Headnotes 111 Eminent Domain 148 € 266 148 Eminent Domain 148IV Remedies of Owners of Property; Inverse Condemnation 148k266 k. Nature and Grounds in General. Most Cited Cases There is right to be compensated through in- verse condemnation when governmental action causes substantial Loss of access to one's property, even though there is no physical appropriation of property itself. [2] Eminent Domain 148 C =106 148 Eminent Domain 1481I Compensation I481I(B) Taking or Injuring Property as Ground for Compensation Page I 148k94 Elements of Compensation for In- juries to Property Not Taken 148k106 k. Obstruction of Access. Most Cited Cases It is not necessary that there be complete loss of access to property, in order to entitle owner to inverse condemnation compensation, but fact that portion or even all of one's access to abutting road is destroyed does not constitute taking unless, when considered in light of remaining access to property, it can be said that property owner's right of access was substantially diminished. [3] Eminent Domain 148 C=106 148 Eminent Domain 148II Compensation 148I1(B) Taking or Injuring Property as Ground for Compensation 148k94 Elements of Compensation for In- juries to Property Not Taken 148k106 k. Obstruction of Access. Most Cited Cases Loss of most convenient access to ones prop- erty is not compensable through inverse condemna- tion where other suitable access continues to exist. [4] Eminent Domain 148 €107 148 Eminent Domain 148II Compensation 14811(B) Taking or Injuring Property as Ground for Compensation 148k94 Elements of Compensation for In- juries to Property Not Taken 148k107 k. Interference with Trade or Business. Most Cited Cases "Taking," such as would warrant compensation through inverse condemnation, has not occurred when governmental action causes flow of traffic on abutting road to be diminished. [5] Eminent Domain 148 G303 148 Eminent Domain © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw. com/print/printstream.aspx?mt=195 &prft=HTMLE& vr=2.0&destinati... 3/23/2011 Page3of7 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) 148IV Remedies of Owners of Property; Inverse Condemnation 148k301 Damages and Amount of Recovery 148k303 k. Compensation for Property Taken or for Injury. Most Cited Cases Extent of access which remains after govern- mental taking is properly considered in determining amount of compensation through inverse condem- nation. [6] Eminent Domain 148 G'142 148 Eminent Domain 14811 Compensation 1481I(C) Measure and Amount 148k139 Injuries to Property Not Taken 148k142 k. Inconvenience in Use. Most Cited Cases Damages which are recoverable upon loss of either complete or partial access due to government taking, are limited to reduction in value of property which was caused by loss of access. [7] Eminent Domain 148106 I48 Eminent Domain 14811 Compensation 1481I(B) Taking or Injuring Property as Ground for Compensation 148k94 Elements of Compensation for In- juries to Property Not Taken 148k]06 k. Obstruction of Access. Most Cited Cases Owners of commercial property located on ma- jor public roadway were entitled to judgment of in- verse condemnation when county government blocked off access to property from roadway, leav- ing access thereto only through circuitous alternat- ive route through residential streets, in that taking resulted in substantial loss of access. *847 Shirley Jean McEachern, Asst. County Atty., West Palm Beach, for petitioner. James J. Richardson, Tallahassee, James W. Vance, P.A., West Palm Beach, and Alan E. DeSerio of Page 2 Brigham, Moore, Gaylord, Wilson, Ulmer, Schuster & Sachs, Tampa, for respondents. Maxine F. Ferguson, Appellate Atty. and Thomas H. Bateman, III, Gen. Counsel, Tallahassee, amicus curiae for State of Fla., Dept. of Transp. GRIMES, Justice. This case comes to us from the Fourth District Court of Appeal certifying a question of great pub- lic importance. The question is: 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 RESID- ENTIAL STREETS? Palm Beach County v. Tessler, 518 So.2d 970, 972 (Fla. 4th DCA 1988). We have jurisdiction pur- suant to article V, section 3(b)(4), of the Florida Constitution. The subject real estate, which is zoned com- mercial, is located at the intersection of Spanish Trail and the main east -west thoroughfare in Boca Raton, Palmetto Park Road. The respondents own and operate a beauty salon that fronts on Palmetto Park Road. As part of a bridge construction and road -widening project, the county planned to con- struct a retaining wall directly in front of the re- spondents' property, which would block all access to and visibility of the respondents' place of busi- ness from Palmetto Park Road. While the property will continue to have access to Spanish Trail, that street is intended to pass underneath the newly con- structed bridge on Palmetto Park Road. The wall will extend to a point approximately twenty feet east of the property. Consequently, the respondents and their customers will only be able to reach the © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 11 http://web2.westlaw.com/print/printstream.aspx?mt=195&prft=HTMLE&vr=2.0&destinati... 3/23/2011 Page 4 of 7 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) property from Palmetto Park Road by an indirect winding route of some 600 yards through a primar- ily residential neighborhood. A sketch of the area which illustrates the effect of the proposed con- struction is appended to the opinion of the district court of appeal. There were two issues before the trial court: (1) whether the county's construction of a retaining wall occurred on private property or in the public right of way; and (2) whether the construction of this wall amounted to a taking for purposes of in- verse condemnation. The court found that the wall was constructed in the public right of way, and that finding has not been disputed. However, the court determined that a case of inverse condemnation had been proven because the property owners were denied "suitable access" to their property as a result of the retaining wall. The Fourth District Court of Appeal affirmed. Where there has been no taking of the land it- self, when is a property owner entitled to be com- pensated for loss of access to the property caused by governmental intervention? The county argues that unless the property owner has been deprived of all access, the law of eminent domain does not re- cognize that a taking has occurred. Respondents contend that a taking has occurred when any por- tion of the access has been eliminated and that the suitability of the remaining access may be taken in- to account in the assessment of compensation. We reject both positions as being extreme. Without placing emphasis on whether other ac- cess was available, several early Florida cases an- nounced the principle that the rights of abutting landowners were subordinate to the needs of gov- ernment to improve the roads and that any loss of access was damnum absque injuria. *848Weir v. Patin Beach County, 85 So.2d 865 (F1a.1956); Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394 (1906); Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457 (1891). However, in Benerofe v. State Road Department, 217 So.2d 838, 839 (F1a.1969), this Court said: Page 3 [E]ven when the fee of a street or highway is in a city or a public highway agency, the abutting owners have easements of access, light, and air from the street or highway appurtenant to their land, and unreasonable interference therewith may constitute a taking or damaging within con- stitutional provisions requiring compensation therefor. Such easements may be condemned ori- ginally, as in the case of a limited access high- way; or they may be acquired later on, if need for their acquisition arises, by the municipal or high- way authorities; or compensation may be re- quired therefor in timely and proper cases by the abutting landowners where deprivation thereof actually occurs without prior acquisition. Accord Department of Transp. v. Jirik, 498 So.2d 1253 (F1a.1986). Thus, under current law, there can be no doubt that where access is entirely cut off, a taking has occurred. Several other decisions of this Court lend sup- port to the proposition that under some circum- stances there may be a taking even though access to property is not entirely cut off. In Florida State Turnpike Authority v. Anhoco Corp., 116 So.2d 8 (Fla.1959), the complaining parties owned property abutting State Road 826 on which two outdoor movie theaters were operated. In the course of con- verting State Road 826 into a feeder road, the Turn- pike Authority dug a ditch along the edge, thereby relegating the owners "to entrance and exit via sec- ondary roads running at right angles to the highway in question which their property fronts." Id. at 14. While acknowledging that the rights of abutting owners may be subordinated to the public and thereby regulated, the Court reasoned that rather than being regulated, the right of access in this in- stance was being destroyed. The Court held that the owners were entitled to be paid for their temporary loss of access to State Road 826. Likewise, in Department of Transportation v. Stubbs, 285 So.2d 1 (F1a.1973), property was being condemned in connection with the construction of Interstate 295. As a consequence, a service road Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=195&prft=HTMLE&vr=2.0&destinati... 3/23 /2011 • Page 5 of 7 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) which adjoined the property was eliminated, al- though the property could still be reached by cross- ing an overpass from the opposite side of I-295. Re- lying upon the rationale of Anhoco, the Court held that the owner was entitled to compensation for loss of access. The Court noted: The rationale for granting compensation, al- though not always expressed in judicial pro- nouncements, is that "property" is something more than a physical interest in land; it also in- cludes certain legal rights and privileges consti- tuting appurtenants to the land and its enjoyment. This is part of a gradual process of judicial liber- alization of the concept of property so as to in- clude the "taking" of an incorporeal interest such as the acquisition of access rights resulting from condemnation proceedings. See Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Texas L.Rev. 733 (1969). Id. at 2. Palm Beach County argues that Anhoco and Stubbs are not authority for recovery in the instant case because both of those decisions involved tak- ings under section 338.04, Florida Statutes (1973), which mandated that property owners be reim- bursed for loss of access incurred in the construc- tion of limited access roads. However, when the Anhoco case came back to the Court for enforce- ment of its earlier mandate, we observed that the rule requiring compensation when the conversion of a land service road into a limited access facility cuts off access to abutting property owners "applies regardless of the specific requirements of a statute." Anhoco Corp. v. Dade County, 144 So.2d 793, 797 (F1a.1962). This would seem to follow once it is re- cognized, as Florida does, that the right of access is a property right which appertains to the ownership of land. We did not *849 intend that Division of Ad- ministration v. Capital Plaza, Inc., 397 So.2d 682 (F1a.1981), be read as limiting the rationale of Stubbs to takings under section 338.04. The Capital Plaza case involved a reduction in the flow of traffic. In the course of the widening of a road, a Page 4 median was installed so that northbound drivers could no longer turn across traffic directly into the landowner's service station. We ruled that this did not involve a deprivation of access but rather an impairment of traffic flow for which no recovery was available. Accord Jahoda v. State Rd. Dep't, 106 So.2d 870 (Fla. 2d DCA 1958). In Pinellas County v. Austin, 323 So.2d 6 (Fla. 2d DCA 1975), the county had vacated a dirt road leading to the Austins' property. Two alternative modes of access existed. One was an unimproved platted road, while the other required traffic to cross an old wooden bridge which could not sup- port service vehicles such as garbage and fire trucks. The court said: On the other hand, not everyone owning prop- erty near a street which has been vacated is en- titled to be compensated. A landowner must demonstrate that he has suffered special damages which are not common to the general public. 11 E. McQuillin, The Law of Municipal Corpora- tions, § 30.188 (3d ed. I964). Thus, in Linning v. Board of County Commissioners of Duval County, F1a.App. 1st, 1965, 176 So.2d 350, the court held that a person who owned a home about 250 feet away lacked standing to contest the validity of the vacation of a street because he had not shown an injury different in kind and degree from that sustained by other property owners or citizens of the community. See 11 E. McQuillin, The Law of Municipal Corporations, §§ 30.192- 30.194 (3d ed. 1964). 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. Boze- man v. City of St. Petersburg, 1917, 74 Fla. 336, 76 So. 894; Halpert v. Udall, S.D.Fla.1964, 231 F.Supp. 574. Cf. Daugherty v. Latham, 1937, 128 Fla. 271, 174 So. 417. Id. at 8-9. The court held the evidence suffi- cient to support the conclusion that the Austins had Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=195&prft=HTMLE&vr=2.0&destinati... 3/23/2011 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) suffered a sufficient impairment of their right of ac- cess which was to be different in kind from the public at large. The court noted, however, that the existence of the other means of access could have the effect of reducing the amount of the Austins' re- covery. Cf. City of Port St. Lucie v. Parks, 452 So.2d 1089, 1090-91 (Fla. 4th DCA) ("Diminishment in the quality of access ... means an actual impairment which results in some deprivation to the property, but does not include mere inconvenience."), review denied, 459 So.2d 1041 (F1a.1984). [1][2][3][4][5][6] Several principles emerge from an analysis of these and other cases.F"` There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one's property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. 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 re- maining access to the property, it can be said that the property owner's right of access was substan- tially diminished. The loss of the most convenient access is not compensable where other suitable ac- cess continues to exist. A taking has not occurred when governmental action causes the flow of traffic on an abutting road to be diminished. The extent of the access which remains after a taking is properly considered in determining the amount of the com- pensation. In any event, the damages which are re- coverable are limited to the reduction in the value of the property which was caused by the loss of ac- cess. Business *850 damages continue to be con- trolled by section 73.071, Florida Statutes (1987). FN* We acknowledge that some of the cases we have considered involved a par- tial taking of land as well as the destruc- tion of access. However, because Florida recognizes that the destruction of the right of access is compensable even where land Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk Page 6 of 7 Page 5 is not taken, we believe the reasoning of those cases may be appropriately con- sidered in our analysis. [7] Applying these principles to the instant case, we conclude that the district court of appeal properly permitted the respondents to recover dam- ages for their loss of access to Palmetto Park Road. The respondents lost more than their most conveni- ent means of access. The evidence supports the conclusion that there was a substantial loss of ac- cess. As stated by the court below: They have shown that the retaining wall will re- quire their customers to take a tedious and cir- cuitous 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 store- front from Palmetto Park Road. 518 So.2d at 972. We note that the district court of appeal held that it was a question of fact as to whether the walling off of the respondents' commercial property and circuitous alternative to reach it amounted to more than inconvenience. Actually, in an inverse condemnation proceeding of this nature, the trial judge makes both findings of fact and fmdings of law. As a fact finder, the judge resolves all conflicts in the evidence. Based upon the facts as so determ- ined, the judge then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activ- ity. Should it be determined that a taking has oc- curred, the question of compensation is then de- cided as in any other condemnation proceeding. As related to the facts of this case, we answer the certified question in the affirmative. We ap- prove the decision of the district court of appeal. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT and KOGAN, JJ., concur. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=195 &prft=HTMLE&vr=2.0&destinati... 3/23/2011 ii Page 7 of 7 538 So.2d 846, 14 Fla. L. Weekly 66 (Cite as: 538 So.2d 846) Fla.,1989. Palm Beach County v. Tessler 538 So.2d 846, 14 Fla. L. Weekly 66 END OF DOCUMENT Page 6 Submitted into the public record in connection with items PZ.2 on 04-28-11 Priscilla A. Thompson City Clerk © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=195&prft=HTMLE&vr=2.0&destinati... 3/23/2011