THOMAS MARTIN, JR. AND CAROLYN MARTIN, APPELLANTS,
v.
CITY OF MONTICELLO, APPELLEE
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Thomas and Carolyn Martin appealed a circuit court order finding that the City of Monticello had taken only an easement to discharge treated sewage effluent onto their 190.5-acre wetland property. The appellate court reversed, holding that the continuous discharge of over one inch of treated effluent per acre per week constitutes a taking of the fee simple interest in the property, and remanded for a jury trial to determine fair market value.
The court held that the continuing invasion of the Martins' property through the discharge of more than one inch of treated effluent per acre per week constitutes a taking of the fee simple interest in the 190.5-acre parcel, not merely an easement.
[1] A continuing invasion of private property by a governmental entity for the discharge of treated sewage effluent constitutes a taking of the fee simple interest in the aff…
[2] In an inverse condemnation action, a court must conduct a jury trial to determine the fair market value of the property taken by the government.
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Join FLexlaw to unlock all legal intelligence“the City's discharge of treated sewage effluent constitutes a taking of the fee simple interest in the 190.5 acre parcel”
Establishes the court's holding that continuous effluent discharge is a taking of fee simple, not merely an easement
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Join FLexlaw to unlock all legal intelligenceThe City of Monticello constructed a sewage treatment system consisting of a treatment plant, a manmade wetland, and a natural wetland that included a…
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PER CURIAM.
Appellants’ motion for clarification of our prior opinion is hereby granted. Appellants’ motion for clarification of our prior order granting attorney’s fees is hereby granted by unpublished order to be issued simultaneously with this opinion. Appellee’s motion for rehearing and clarification of our prior opinion is hereby granted in part, but only for the purpose of clarification. We hereby withdraw our prior opinion and substitute the following opinion therefor. Appellants, Thomas and Carolyn Martin, appeal the order of the circuit court finding that appellee City of Monticello had taken an easement to discharge treated sewage effluent onto a 190.5 acre tract of mostly wetland area owned by appellants rather than a fee simple interest in the affected property. Agreeing with appellants’ contention that the City’s discharge of treated sewage effluent constitutes a taking of the fee simple interest in the 190.5 acre parcel, we reverse and remand.
The uneontroverted testimony at hearing of appellants’ inverse condemnation petition showed that the City had constructed a sewage treatment system consisting of three elements: a treatment plant; a manmade wetland; and a natural wetland, including approximately 160 acres of wetland owned by appellant. As designed, the City will discharge more than one inch of treated effluent per acre per week onto appellants’ property on a continuing basis. We find such a continuing invasion of appellants’ property to constitute a taking of the fee simple interest in the 190.5 acre parcel. On remand, we direct the trial court to conduct a jury trial for the purpose of determining the fair market value of the 190.5 acre parcel taken by the City of Monticello.
Appellants’ motion for clarification of our prior opinion notes some variance between the legal description of the approximately 190.5 acre parcel of land as described in the City’s application for a permit to construct a sewage system, submitted to the Department of Environmental Regulation, and the legal description prepared by property appraiser Albert Odom. Appellants point out that the description provided by Mr. Odom contains a typographical error, and request that such error be noted. We hereby adopt appellants’ suggestion and specify that our decision pertains to the 190.5 acre parcel as described in the City’s application for a permit to construct the sewage disposal system.
REVERSED and REMANDED for further consistent proceedings.
BARFIELD and MINER, JJ., and SHIVERS, Senior Judge, concur.
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VLX Props., Inc. v. S. States Utils., Inc., 701 So. 2d 391 (Fla. 5th DCA 1997)…y asserting that an unauthorized public use of its private interests took place without compensation, VL X, contrary to the trial court’s finding, possibly stated a cognizable claim for inverse condemnation against SSU. Martin v. City of Monticello, 632 So. 2d 236 (Fla. 1st DCA 1994); South Florida Water Management Dist. v. Steadman Stahl, P.A. Pension Fund, 558 So. 2d 1087 (Fla. 4th DCA 1990), rev. denied, 574 So. 2d 143 (Fla.1990); Hillsbor-ough County v. Gutierrez, 433 So. 2d 1337 (Fla. 2d DCA 1983); Thomp…
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Cozette R. Drake v. Walton Cnty., 6 So. 3d 717 (Fla. 1st DCA 2009)…when it directs a concentrated flow of water from one property onto another, permanently depriving the owner of all beneficial enjoyment of their property. Leon County v. Smith, 397 So. 2d 362, 364 (Fla. 1st DCA 1981); Martin v. City of Monticello, 632 So. 2d 236, 237 (Fla. 1st DCA 1994). To assert an inverse condemnation claim based on such governmental action, the property owner must demonstrate that the government’s action constitutes a substantial interference with her private property rights for more th…
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