Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-5034 _____________________________ TLC PROPERTIES, INC., Appellant, v. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. James B. Fensom, Judge. January 21, 2020 M.K. THOMAS, J. In this inverse condemnation action, TLC Properties, Inc. (TLC), appeals an order granting summary judgment in favor of the Florida Department of Transportation (FDOT). TLC argues the trial court erred in denying compensation for FDOT’s “taking” of easement rights for an unobstructed view of and access to an advertising billboard. For the reasons set forth below, we affirm. I. Facts TLC holds a perpetual easement on land owned by Bay Line Railroad (Bay Line). Bay Line expressly granted to TLC incorporeal rights for advertising through use of a billboard on Bay Line property near the railroad intersection with Highway 98. 1 The Easement Deed to TLC provides: 1) a 345 square foot area or “footprint” for the site of the billboard; 2) an express ingress and egress to access the footprint; and 3) a line-of-sight or view zone restriction that prohibits Bay Line or any other party from erecting any structure on the property that obscures or obstructs the normal highway view of the billboard. The deed generally describes a grant of access to the billboard footprint using Bay Line’s right-of-way to Highway 98, with no specific route detailed. For clarity, the billboard footprint does not abut Highway 98, but Bay Line’s right-of-way through which the ingress and egress to the footprint is accomplished, does. For fifteen years, TLC has accessed the billboard by commencing at various points where the Bay Line property abuts Highway 98. There is no dedicated driveway or curb cut to access the billboard from the highway. Historically, TLC has “jumped the curb” or obtained access through a curb cut where the railroad track crosses Highway 98. Access through the curb cut at the railroad track crossing is not approved by FDOT and would not be permitted for reasons of public health and safety. FDOT acquired the necessary right-of-way for construction of a flyover on Highway 98. The flyover project entails construction of a road spanning approximately one mile with redesign and reconfiguration of the existing at-grade signalized intersection of Highway 98 and 23rd Street. The flyover project elevates Highway 98 more than twenty-feet to allow clearance for trains and to facilitate the continuous, unimpeded flow of eastbound and westbound highway traffic. FDOT concedes that TLC’s billboard will be “non-visible” from the highway once the flyover is complete. Bay Line and FDOT entered into a Railroad Reimbursement Agreement relating to the flyover in which Bay Line granted FDOT the right to “construct and maintain the structure(s) and necessary approaches across Bay Line’s right of way and tracks. . . . ” The flyover project calls for a new service or loop 1 Bay Line has granted a total of twenty-one easements to TLC for advertising structures on properties owned by Bay Line. 2 road to be constructed in the Highway 98 right-of-way, underneath the elevated travel lanes, to provide continued access to abutting properties. The new service road plan calls for a curb cut and a cantilever gate to access Bay Line property. TLC filed a complaint against FDOT for inverse condemnation, claiming the flyover project violates its rights under the easement with Bay Line for an unobstructed view of the billboard and access thereto. TLC asserts the construction constitutes a compensable taking because after the flyover is built the billboard is no longer commercially viable as an advertising structure, and there is no legal entry to the billboard footprint. 2 FDOT filed a motion for summary judgment arguing that because the easement does not abut Highway 98 and the easement deed does not specifically describe how the easement may be accessed, TLC is not entitled to compensation. Regarding loss of visibility, FDOT claimed any such loss due to construction of the flyover is not compensable under Florida law. FDOT further argued that even if TLC’s claim has merit, it is time-barred under the statute of limitations (SOL) because in approximately 2005, curb and gutters were installed making it unlawful to access the easement by jumping the curb or using the railroad intersection curb cut, and TLC’s action should have been brought within four years of it losing access. In response, TLC argued that any statute of limitations defense was barred by equitable estoppel as FDOT knew of its history of access and did not object. The trial court granted FDOT’s motion, finding TLC had no compensable property right for loss of visibility and did not incur a loss of access. Although the trial court noted that “a property owner must bring an inverse condemnation claim within four years of the physical invasion of the property caused by governmental action” and that TLC failed to introduce evidence showing FDOT was aware it was jumping the curb or using the railroad tract to access its easement, it failed to make a ruling on the SOL defense. 2 Bay Line is not a party to this inverse condemnation action. 3 II. Legal Analysis A trial court’s decision to grant summary judgment is reviewed de novo. Mills v. State Farm Mut. Auto. Ins. Co., 27 So. 3d 95, 96 (Fla. 1st DCA 2009). The moving party must show that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st DCA 2014). The Florida Constitution bars the taking of private property except for public use and then only after full compensation. Art. X, § 6, Fla. Const.; see also Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663, 669 (Fla. 1979), cert. denied, 444 U.S. 965 (1979). “Thus, a cause of action for inverse condemnation will lie against a government agency, which by its conduct or activities, has taken private property without a formal exercise of the power of eminent domain.” Schick v. Fla. Dep’t of Agric., 504 So. 2d 1318, 1319 (Fla. 1st DCA 1987) (internal citations omitted). “Since there is no settled formula to determine when a valid exercise of the police power stops and an impermissible encroachment of private property rights begins, the determination must be made on a case by case basis.” Id. Inverse condemnation occurs when a government agency takes an owner’s property by 1) entering upon the private property for more than a momentary period and 2) under the color of legal authority, 3) devoting it to a public use, or 4) otherwise appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. Kendry v. Div. of Admin., 366 So. 2d 391, 393– 94 (Fla. 1978). The first three elements typically apply to physical occupation cases, whereas the fourth element applies to other forms of takings, such as regulatory takings where the appropriate inquiry is “directed to the extent of the interference or deprivation of economic use of [the property].” Dep’t of Transp. v. Weisenfeld, 617 So. 2d 1071, 1073 (Fla. 5th DCA 1993). Here, the fourth element is determinant. 4 Loss of Visibility First, TLC challenges the trial court’s determination that, as a matter of law, it is not entitled to compensation for loss of visibility of its billboard. TLC acknowledges the supporting caselaw cited by the lower court but asserts the cases are distinguishable as they do not address the specific legal issue presented here—whether compensation is due for the taking of a restrictive covenant in an easement deed (here, a covenant for an unobstructed view of a billboard). Rephrased, the question is whether private parties may create a contractual property interest, such as a guarantee of an unobstructed view of a billboard, for which compensation is due for a taking by a government agency. Under these facts, we answer the question in the negative. Florida law does not recognize visibility as a stand-alone property right. See CBS Outdoor Inc. v. Fla. Dep't of Transp., 124 So. 3d 383, 387 (Fla. 1st DCA 2013). In inverse condemnation actions, any decrease or loss of visibility suffered as a result of construction of a public highway is not compensable. See Dep’t of Transp. v. Butler Carpet Co., 231 So. 3d 499, 507–08 (Fla. 2d DCA 2017); Dep’t of Transp. v. Suit City of Aventura, 774 So. 2d 9, 13 (Fla. 3d DCA 2000); Dep’t of Transp. v. Weggies Banana Boat, 576 So. 2d 722, 724 (Fla. 2d DCA 1990). In granting summary judgment in favor of FDOT, the lower court relied on this Court’s decision in CBS Outdoor which noted, “Florida has not recognized the visibility of one’s signs along the interstate as a property right.” 3 124 So. 3d at 387. TLC claims 3 In CBS Outdoor, this Court addressed whether FDOT properly dismissed the billboard owners’ petition for administrative hearing seeking compensation under section 479.25(1), Florida Statutes, after FDOT erected a sound wall that obstructed view of a billboard. 124 So. 3d at 384. Section 479.25(1) provides redress for sign owners who establish that visibility of a conforming sign is screened or blocked due to construction of a sound barrier along public highways. The statute allows sign owners to raise the height of conforming signs or receive other statutorily provided remedies, inclusive of compensation. Id. This 5 CBS Outdoor is distinguishable because Bay Line expressly granted a contractual property interest via a restrictive covenant or negative easement and Florida law is clear that the taking of an easement requires just compensation. In support, TLC cites Department of Transportation v. Stubbs, 285 So. 2d 1, 2 (Fla. 1973), as recognizing a judicial liberalization of the concept of property to include “something more than a physical taking” and encompassing incorporeal interests such as loss of visibility. Here, this is a stretch too far. It is true that the cohort of compensable property interests in Florida has expanded to include leaseholds, easements, and personal property, as well as incorporeal hereditaments such as contracts. See Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379, 383 (Fla. 1999). TLC now argues for restrictive covenants to join the list. Whether restrictive covenants constitute a compensable property interest in condemnation cases has been a matter of conflict among states. Id. In Board of Public Instruction of Dade County v. Bay Harbor, 81 So. 2d 637, 642 (Fla. 1955), our supreme court adopted the view expressed by the Georgia Supreme Court “that restrictions of [this] kind . . . convey no interest in the land, are not true easements, and at best may be relied upon and enforced between the parties thereto and their successors with notice.” The court found compelling the statement of the District Judge in United States v. Certain Lands (In re Newlin), 112 F.622, 628-29 (C.C.D.R.I. 1899): While the owners may so contract as to control private business, and thereby increase the values of their estates, they are not entitled so to contract as to control the action of the government or to increase the values of their lands by any expectation or belief that the government will not carry on public works in their vicinity . . . . Id. at 642–43. Court determined the sign owners were not entitled to the statutory redress because the signs in question were nonconforming with state and federal requirements. Id. at 387. 6 Landowners may not contract to control or limit the government's ability to acquire lands for public purposes or force the government to compensate them for damages resulting from a use that does not directly invade their land. Cove Club, 734 So. 2d at 642–43. To do otherwise would clearly “place upon the public an intolerable burden wholly out of proportion to any conceivable benefits to those who might be entitled to compensation” and “present obstacles of an unwarranted nature in the exercise of the sovereign power.” Id. at 386 (quoting Bay Harbor, 81 So. 2d at 643– 44). Here, the covenant on visibility expresses a building restriction with the goal of maintaining a full and unobstructed view of the billboard. The building restriction is imposed for the benefit of the owner of the easement, TLC. The Easement Deed established that Bay Line would not take any actions on its property right-of-way to obstruct TLC’s billboard. If TLC is aggrieved by Bay Line’s involvement in the flyover project, it may address such matters with Bay Line. TLC’s argument lends itself to pursuit of an appropriate remedy in a breach of contract claim and courts have cautioned “against commingling takings compensation and contract damages.” See Klamath Irrigation Dist. v. U.S., 67 Fed. Cl. 504, 531 (Fed. Cl. 2005). To bolster its argument that recognition of loss of visibility as a compensable property right has now come of age in Florida, TLC highlights solar easements and riparian rights. However, we find these property interests readily distinguishable. Solar easement rights are recognized by statute and are required to include “[a]ny provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement.” See § 704.07(2)(f), Fla. Stat. Riparian rights are recognized at common law. Bd. of Trustees of the Internal Improvement Trust Fund v. Sand Key Assoc., 512 So. 2d 934, 936 (Fla. 1987); Hayes v. Bowman, 91 So. 2d 795, 801 (Fla. 1957); Brickell v. Trammell, 82 So. 221 (Fla. 1919). The Florida Legislature has chosen to codify many aspects of the common law riparian rights. See § 253.141, Fla. Stat. “Riparian rights are a special breed of property rights differing from non-riparian rights 7 . . . Lost riparian rights always entitle the owner to relief; as a consequence, they do not assist in determining taking and compensability when non-riparian rights are involved and may or may not be compensable.” Suit City of Aventura, 774 So. 2d at 13– 14. Unlike solar easements or riparian rights, Florida does not recognize an unobstructed view of a billboard on private property from a public highway as a compensable property interest. 4 There is no inherent right to use public highways for commercial purposes. We do not dispute that the value of TLC’s billboard is in its visibility. However, courts have frequently recognized that billboard advertising is a use of the public’s investment in the roadways rather than the use of private property. See Modjeska Sign Studio, Inc. v. Berle, 373 N.E.2d 255 (N.Y. 1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 339 N.E.2d 709 (Mass. 1975); Metromedia, Inc., et al., v. City of Pasadena, 216 Cal. App. 2d 370, 30 Cal. Rptr. 731 (Cal. 1963); N.Y. State Thruway Author. v. Ashley Motor Court, 176 N.E.2d 56 (N.Y. 1961). Loss of visibility to passers-by of a property is not itself a compensable item of damage in a condemnation action. This argument is at its core inextricably intertwined with a non-existent property right in traffic. “No person has a vested right in the maintenance of a public highway in any particular place because the state owes no person a duty to send traffic past his door.” Dep’t of Transp. v. Gefen, 636 So. 2d 1345, 1346 (Fla. 1994) (citing Jahoda v. State Road Dep’t, 4 The Florida Legislature has enacted legislation addressing grievances by billboard owners: 1) in 2006 amending sections 479.106 and 479.25, Florida Statues, to provide for permanent compensable view easements to allow unobstructed views of billboards over public property by passing motorists (prohibits trees and other vegetation that are part of a roadway beautification project from being planted in a “view zone” and allows conforming billboards to be raised above newly erected tall noise attenuation barriers)—the law does not apply to privately owned property; and 2) in 2002 enacting section 70.20, Florida Statutes, requiring cities and counties to pay billboard companies just compensation when billboards are removed by local ordinances. 8 106 So. 2d 870, 872 (Fla. 2d DCA 1958), disapproved on other grounds, Dep’t of Transp. v. Stubbs, 285 So. 2d 1 (Fla. 1973). Thus, TLC is not entitled to compensation for loss of visibility of its billboard. Loss of Access Secondly, TLC asserts that although FDOT did not physically take the property encumbered by its billboard easement, the flyover will cause substantial loss because the property will no longer be accessible from Highway 98. Also, the trial court erred in finding TLC did not lose access as a result of the flyover because it never possessed legal access to the easement. Unlike visibility, Florida law does recognize access as a stand- alone property right: There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property it can be said that the property owner’s right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist. A taking has not occurred when governmental action causes the flow of traffic on an abutting road to be diminished. Palm Beach Cty. v. Tessler, 538 So. 2d 846, 849 (Fla. 1989) (emphasis added). The trial court determined that TLC is not entitled to compensation because its “[e]asement does not abut [FDOT’s] U.S. 98 right-of-way.” TLC cites section 335.181(2)(a), Florida Statutes, which provides, “[e]very owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway but does not have the right of unregulated 9 access to such highway.” Although the footprint for the billboard did not abut Highway 98, TLC argues the grant of ingress and egress granted in the Easement Deed does. We find it unnecessary to answer the question of whether a grant of ingress and egress to an internal easement constitutes “abutting” property under section 335.181(2)(a), because TLC failed to prove its access to Bay Line’s property will be diminished as a result of the flyover. TLC’s billboard footprint is thirty feet within Bay Line’s property. The Easement Deed grants TLC a right of ingress and egress but does not specify where it is to be accomplished across Bay Line’s property. Historically, TLC accessed the billboard footprint by jumping the curb and sidewalk bordering Highway 98 or through the curb cut at the railroad intersection and traveling across Bay Line’s right-of-way. Neither TLC nor Bay Line ever applied to FDOT for a curb cut or other permissible entry from Highway 98. The lower court determined that TLC “presented no evidence” demonstrating the existence of a legal access or that its methods of accessing its easement were authorized or permitted” prior to the flyover. 5 The flyover plans call for a service road to be constructed parallel to the flyover along Bay Line’s property and for a new curb cut on Highway 98 to access the Bay Line abutting property through a cantilever gate. As before, a curb and sidewalk will border the service road. The flyover project does not deny access to the Bay Line property from Highway 98. Rather, the flyover will result in a diversion of traffic for which Florida courts have consistently withheld compensation. Gefen, 636 So. 2d at 1346. The flyover does not result in a denial of TLC’s access to the Bay Line property and its billboard easement. Statute of Limitations/Equitable Estoppel At the hearing on the motion for summary judgment, the parties argued the merits of a SOL defense to the inverse condemnation claim and whether this defense was barred by the 5 TLC argues the trial court erred in denying, in part, its motions to strike the affidavits of Chad Mullarkey, Gary Sololow and Scott Allbritton. Because we find no abuse of discretion by the trial court, we affirm the trial court’s denial. 10 doctrine of equitable estoppel. The order on appeal addressed the arguments at length but failed to ultimately provide a ruling. To be preserved for appeal, the issue or legal argument must be raised and ruled on by the trial court. See § 924.051(1)(b), Fla. Stat.; Fla. Dep’t of Agric. and Consumer Serv. v. Mendez, 98 So. 3d 604, 608 (Fla. 2012) (“Part of the preservation requirement is the securing of a ruling. . .”); Rose v. State, 787 So. 2d 786, 797 (Fla. 2001) (“[T]he failure of a party to get a timely ruling by a trial court constitutes waiver of the matter for appellate purposes.”). Because no ruling was acquired, the issues were not preserved for appeal. III. Conclusion The order on appeal granting summary judgment in favor of FDOT is AFFIRMED. MAKAR and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Bert Moore of Bert Moore, PLC, Crestview, for Appellant. John L. Wharton and Brittany O. Finkbeiner of Dean Mead and Dunbar, Tallahassee, for Amicus Curiae Florida Outdoor Advertising Association, in support of Appellant. Marc Peoples of the Department of Transportation, Tallahassee, for Appellee. 11