CITY OF ST. PETERSBURG, FLORIDA, APPELLANT,
v.
JOSEPH H. KABLINGER, APPELLEE
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In this inverse condemnation case, the City of St. Petersburg appealed a partial summary judgment finding it liable for a compensable temporary taking when it prohibited rental and business activities on Kablinger's property for one year due to a public nuisance determination. The court affirmed the judgment and certified a conflict with a Third District decision that reached the opposite conclusion on similar facts.
The court affirmed the partial summary judgment establishing the city's liability for a temporary taking, finding that the circumstances were materially indistinguishable from the court's prior decision in City of St. Petersburg v. Bowen, which had held such a prohibition was a compensable temporary taking.
[1] A temporary prohibition of rental or business activities on a property, imposed by a nuisance abatement board due to drug sales, may constitute a compensable temporary ta…
[2] A property owner's failure to appeal or seek modification of a nuisance abatement order does not preclude a subsequent claim for inverse condemnation if the order resulte…
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Join FLexlaw to unlock all legal intelligence“the NAB prohibited any rental or business activities at the property for one year, beginning July 1, 1993”
Establishes the nature and duration of the restriction imposed by the nuisance abatement order that allegedly constituted a taking
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Join FLexlaw to unlock all legal intelligenceIn 1993, the St. Petersburg Nuisance Abatement Board determined that a public nuisance existed on the property because cocaine had been sold there on …
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NORTHCUTT, Acting Chief Judge.
In this inverse condemnation litigation the City of St. Petersburg challenges a partial summary judgment that established its liability for a taking. We affirm, but certify that our decision conflicts with that of another district court of appeal.
In 1993 the St. Petersburg Nuisance Abatement Board (NAB) determined that a public nuisance existed on Joseph H. Ka-blinger’s property because cocaine had been sold there on more than two occasions.1 Pursuant to the St. Petersburg Code of Ordinances 19-66 through 19-72, and section 893.138, Florida Statutes (1991), the NAB prohibited any rental or business activities at the property for one year, beginning July 1, 1993. The property owner did not appeal the NAB’s order, nor seek to modify it. Instead, in 1997 Kablinger filed suit asserting that he was entitled to compensation because the order constituted a temporary taking of the use of the property.
The circuit court granted Kablinger a summary judgment on the issue of the City’s liability, guided primarily by our decision in City of St. Petersburg v. Bowen, 675 So. 2d 626 (Fla. 2d DCA 1996), review denied, 680 So. 2d 421 (Fla.1996), cert. denied, 520 U.S. 1110, 117 S.Ct. 1120, 137 L.Edüd 320 (1997). The Bowen decision involved the same ordinance and statute at issue here, and it found there had been a compensable temporary taking under circumstances that were materially indistinguishable from those in this case. Accordingly, we affirm the partial summary judgment.
Recently, however, the Third District considered a case involving similar facts and a similar ordinance promulgated pursuant to section 893.138. It concluded that a temporary closing of property because it is a nuisance is not a compensable taking. See City of Miami v. Keshbro, Inc., 717 So. 2d 601 (Fla. 3d DCA 1998), review granted, Keshbro, Inc. v. City of Miami, 94,068, 729 So. 2d 392 (Fla. 1999). The Keshbro court endeavored to distinguish Bowen, but we believe the decisions are in conflict, and we note that Keshbro is currently under review by the supreme court. That being so, we certify that this decision conflicts with Keshbro.
Affirmed, conflict certified.
CASANUEVA, J., and QUINCE, PEGGY A,, Associate Judge, Concur. . At that time, the property was owned by Residential Property Management, Inc. That corporation was dissolved by the Florida Secretary of State in 1995. Kablinger is the corporation’s successor in interest by virtue of an assignment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- City OF ST. Petersburg v. Bowen, 675 So. 2d 626 (Fla. 2d DCA 1996)
- Clark v. State, 717 So. 2d 601 (Fla. 1st DCA 1998)
- City OF Miami v. Keshbro, Inc., 717 So. 2d 601 (Fla. 3d DCA 1998)
- Swaney v. Chater, 520 U.S. 1110 (U.S. 1997)
- Tidik v. Tidik, 520 U.S. 1110 (U.S. 1997)