Tonay A. Rukab and Aida T. Rukab v. City of Jacksonville Beach, et al.

Tony M. Rukab and Aida T. Rukab, his wife, appeal from an order of taking
in an eminent domain action. The court found that the appellees, City of Jacksonville
Beach and the Jacksonville Beach Community Redevelopment Agency (the City), had
shown a public purpose and reasonable necessity for taking the Rukabs’ property.

The Rukabs raise a number of issues on appeal. The issue concerning public
necessity has merit and requires reversal; two other issues also will be discussed:
Whether a landowner whose property is being condemned pursuant to the Community
Redevelopment Act of 1969 may challenge the designation of a “blighted” area during
an eminent domain proceeding where another landowner within the area has previously
litigated the issue; and whether a person who purchases property within an area
previously designated as blighted under the Community Redevelopment Act of 1969
is precluded from challenging that designation in an eminent domain proceeding.
While the City makes compelling policy arguments for not allowing a challenge to the
determination of blight under these circumstances, we find no legal support for
precluding the landowner from raising the issue.

Pursuant to sections 163.330-.462, Florida Statutes, the Community
Redevelopment Act (the Act), the Legislature has authorized counties and municipalities to exercise broad powers to rehabilitate, clear, and redevelop slum and
blighted areas. Under the Act, the local government redevelopment agency has the
specific power of eminent domain under Chapters 73 and 74, Florida Statutes, to clear
urban blight by acquiring real property in a designated area. § 163.375, Fla. Stat.
(2001). In the mid-1980's the City of Jacksonville Beach created the Jacksonville
Beach Community Redevelopment Agency. The agency determined that a section of
about 350 acres in the south end of Jacksonville Beach was a blighted area within the
meaning of the Act,1 and the agency created and implemented the Southend
Community Redevelopment Plan to address the blight within that area. The City has
been implementing the Redevelopment Plan by issuing requests for proposals for
portions of the Redevelopment Area and then entering into development agreements
with chosen developers. In 1994-95 Rukab, a local realtor, and his wife purchased
three lots in the Redevelopment Area.2 The Rukab property is zoned residential, but
it is situated in the 20-acre South Beach Mixed Use Project area slated for retail and multiple family dwellings. To develop their three lots, the Rukabs could either go
through the proposal process or request a rezoning and comprehensive plan
amendment to develop their property in conformity with the Redevelopment Plan. In
March 1997, the Rukabs requested a rezoning and comprehensive plan amendment for
office and commercial use for their three lots. The City denied the request because
appellants’ proposed development was of insufficient size to be consistent with the
Redevelopment Plan. In June 1998 the City entered into a development agreement with
Sleiman Enterprises for the 20-acre South Beach Mixed Use Project to build a
shopping center and multi-family apartments. Subsequently, in October 1998, the
Rukabs informed the City that they had obtained purchase options on 10 additional
lots and they wanted to develop them, but the Rukabs never applied for a rezoning and
comprehensive plan amendment. In November 1999, the City, in furtherance of the
development agreement with Sleiman, filed an action in eminent domain against various
owners of property located in the 20-acre South Beach Mixed Use Project of the
Redevelopment Area, including the Rukabs. The City alleged that the property was
“needed and necessary for the purpose of developing the Southend Community
Redevelopment Area.” The Rukabs contested the taking.

In the trial court, the City argued that the only issue before the court in the
eminent domain proceeding was just compensation since the court could take judicial notice that the 1997 order of taking in City of Jacksonville Beach v. White, No.
96–03185-CA (Fla. 4th Cir. Ct. June 25, 1996), a consolidated case involving six other
property owners in the Redevelopment Area, decided all other issues. The Rukabs
admitted that the White order upheld the 1985 finding of blight and the 1987
delineation of the Redevelopment Area and found that the statutory requirements of
the Act were met, but they contended that the City still had to establish public purpose
and necessity; thus, the Rukabs sought de novo review of the 1985 blight
determination and 1987 designation of the Redevelopment Area. The trial court in the
instant case determined that because the order in White decided those issues, a de
novo challenge would not be permitted.3 Instead, the issues here were determined to be whether the Rukabs’ property is situated within the Redevelopment Area and
whether the proposed use of the property will be consistent with the Plan. The latter
of the two included the issue of whether the City acted with fraud, illegality, or gross
abuse of discretion in the taking. The trial court issued an order of taking, finding that
the Redevelopment Plan had been adopted in accordance with a valid act of the
legislature, the City had brought its action pursuant to the valid legislation, and the City
had established a public purpose and a reasonable necessity for taking the Rukabs’
land in furtherance of the Redevelopment Plan.

The Florida Constitution expressly prohibits the use of the power of eminent
domain to take private property “except for a public purpose.” Art. X, § 6, Fla.
Const. The supreme court requires strict construction of statutes affording the power
of eminent domain:

The power of eminent domain is one of the most harsh
proceedings known to the law. Consequently, when the sovereign
delegates this power to a political unity [sic] or agency, a strict
construction must be given against the agency asserting the power. The
burden is on the condemning authority to establish a public
purpose and reasonable necessity for the taking.

We have been long committed in a consistent series of cases to the
proposition that eminent domain cannot be employed to take private
property for a predominantly Private use; it is, rather, the means
provided by the constitution for an assertion of the public interest and is predicated upon the proposition that the private property sought is for a
necessary public use. It is this public nature of the need and necessity
involved that constitutes the justification for the taking of private
property, and without which proper purpose the private property of our
citizens cannot be confiscated, for the private ownership and possession
of property was one of the great rights preserved in our constitution and
for which our forefathers fought and died; it must be jealously preserved
within the reasonable limits prescribed by law.

Baycol, Inc. v. Downtown Dev. Auth. of the City of Fort Lauderdale, 315 So. 2d 451,
455 (Fla. 1975) (citations and footnotes omitted; bolded emphasis added; italics in
original). The supreme court reiterated and clarified the condemnor’s burden in an
eminent domain proceeding under the Community Redevelopment Act of 1969 as
follows:

In the first instance, the condemning authority is obliged to show a
reasonable necessity for the condemnation. Once such a reasonable
necessity is shown, the exercise of the condemning authority's discretion
should not be disturbed in the absence of illegality, bad faith or gross
abuse of discretion. Although it will not be presumed that a condemning
authority abused its discretion or acted illegally or in bad faith in making
its finding of reasonable necessity in a resolution of taking, such
authority, in order to meet its burden, must put on some evidence of
reasonable necessity for the taking. Once this is shown, however, the
landowner must then either concede the existence of a necessity or be
prepared to show bad faith or abuse of discretion as an affirmative
defense.

City of Jacksonville v. Griffin, 346 So. 2d 988, 990 (Fla. 1977) (citations omitted).

The only public purpose supporting the taking of the Rukabs’ land is the
designation of blight over the entire area. Utilization of the power of eminent domain without a determination of blight would violate the Rukabs’ rights guaranteed by
Article X, section 6 of the Florida Constitution. This point is illustrated in City of
Jacksonville v. Moman, 290 So. 2d 105 (Fla. 1st DCA 1974), in which this court
emphasized that the power of eminent domain cannot be used arbitrarily and
unreasonably and that although a city “may designate an area as a slum . . . such
designation does not make it a slum.” Id. at 107. In Moman, this court affirmed the
lower court’s determination that the City failed to show necessity; that is, the evidence
did not support the slum designation. See id.

* * *

We see no reason to treat a direct condemnation action differently from an
inverse condemnation claim in this context. In both cases, property owners are
asserting their constitutional rights not to have the government take their property
without just compensation. In the instant case, the Rukabs correctly point out that the
designation of the area as “blighted” was not confiscatory in nature, nor was adoption
of the Redevelopment Plan. See Florio v. City of Miami Beach, 425 So. 2d 1161,
1162 (Fla. 3d DCA 1983) (indicating that mere adoption of redevelopment plan did not
result in a taking). The first opportunity to challenge the propriety of the taking was
during this eminent domain proceeding. Thus, even if there were other opportunities

for challenging the designation, a property owner must still be afforded the opportunity
for a full hearing in the eminent domain action. During this action, the City must meet
the burden of showing public purpose and necessity.

* * *

Click the case caption above for the full text of the
Court's opinion.

We, therefore, reverse and remand for a new hearing on the issue of the public
necessity for the taking.

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