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In a new twist on an old case, Florida’s 5th District Court of Appeal recently held that the failure of a county to adequately maintain a public roadway may result in a “taking” of property that is accessed by the that road. Jordan v. St. Johns County, 36 Fla. L. Weekly D1095a (May 20, 2011).

At issue was a stretch of former State Highway A1A which runs along the Atlantic Ocean in St. Johns County. The road had been deeded to the County by the State in 1979 after the State re-routed A1A approximately 800 feet west of its original location. After numerous storms and natural forces caused significant damage to the roadway, a group of owners whose property obtained access via “Old A1A” sued the County for failing to maintain the roadway in useable condition. The County took the position that it had the sole authority and discretion to determine what constituted reasonable roadway maintenance. The trial court granted summary judgment in favor of the County, and the landowners appealed.

The 5th DCA reversed the trial court and held that:

  1. the County had the obligation to maintain the roadway at a “reasonable level . . . that affords meaningful access,” unless or until the County formally abandons the road; and
  2. a county’s decision not to maintain a roadway at a reasonable level could constitute effective abandonment of the roadway, depriving the property owners of access to their property without compensation. 

The summary judgment on these counts was reversed and remanded to the trial court for further proceedings.

In recognizing a potential uncompensated taking of access rights, the 5th DCA relied on the 1989 Florida Supreme Court decision in Palm Beach County v. Tessler, 538 So.2d 846. In Tessler, the court held that roadway improvements that eliminated a commercial property owner’s direct access to an adjacent arterial could result in a compensable taking of the owner’s access rights if the remaining access to the property was so circuitous as to essentially render the property unusable for commercial purposes. Very few landowners had been able to successfully use the Tessler decision to establish a taking based upon deprivation of access, but the St. Johns County case provides a warning to local governments that decisions pertaining to roadway access can lead to a potentially compensable taking of real property. A motion for rehearing is presently pending before the court.