5D00-2275 Florida Water v. Utilities

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2275

Case Date: 06/18/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

FLORIDA WATER SERVICES CORPORATION, Appellant, v. Case No. 5D00-2275 UTILITIES COMMISSION, ETC., Appellee. / Opinion filed June 22, 2001 Non-Final Appeal from the Circuit Court for Volusia County, Robert K. Rouse, Jr., Judge. Gordon H. Harris, Tracy A. Marshall and Bruce M. Harris of Gray, Harris & Robinson, P.A., Orlando, for Appellant. Steven L. Brannock and Robert E.V. Kelley, Jr. of Holland & Knight LLP, Tampa, for Appellee. ORFINGER, R. B., J. Florida Water Services Corporation appeals a non-final order of taking entered in favor of the Utilities Commission, City of New Smyrna Beach, Florida, pursuant to the "quick take" procedure authorized by section 74.011, Florida Statutes (1999). Florida Water argues that the circuit court erred in entering the order of taking because (1) the Utilities Commission's estimate of value was not based on a valid appraisal as required by section 74.031, Florida Statutes (1999); (2) the Utilities Commission did not file an amended declaration of taking to reflect changes in its estimate of value; and (3) the

Utilities Commission lacks the power to take by eminent domain an existing privately owned public utility already dedicated to a public use. We find no error and affirm. The Sugar Mill Country Club subdivision, including its water and waste water system (the "system" or the "Sugar Mill system"), was outside the city limits of New Smyrna Beach until 1998 when the subdivision and its water and sewer system were annexed into the City of New Smyrna Beach. Because the Utilities Commission provided water and sewer services to all New Smyrna Beach residents with the exception of those in Sugar Mill, it determined that it would be in the best interest of the citizens of New Smyrna Beach and the residents of Sugar Mill to acquire the Sugar Mill system and thereby consolidate all water and sewer services into a single system. The Utilities Commission attempted to negotiate a voluntary purchase of the Sugar Mill system. When those negotiations failed, the Utilities Commission initiated eminent domain proceedings. Chapter 74, Florida Statutes (1999) permits a taking authority to take possession of and title to condemned property in advance of final judgment if the taking authority complies with certain procedural requirements. One such procedural safeguard requires the taking authority to file a declaration of taking.

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