verses city of st pete or stop mr hanks it please the court i'm arctics i represent the city of st pete beach the plaintiffs in this case cannot and did not prove that there was a permanent continuous traversing of plaintiff's own property by members of the general public for which the city can be blamed or had an active encouragement to have the pub public on that property let me set the stage first of all first three laps down from the city's own primate from the plaintiff's own property there's a two hundred seventy seven room hotel the don says our hotel and the beach and people are allowed to come down onto that beach and use the beach and people do wander around the block and undoubtedly by block m is one thing the plane is property is three lots down the road so there you have an influx of people who are allowed to come down on the hotel's beach and they do wander around ok so what did we do about that can i ask you just a quick question just after i sort of unpack your first statement so you don't deny that if the city had authorized or granted  in effect a license to continuously traverse that might be a taking or that in fact a jury could conclude that there was continuous and systematic traversing whatever we're going to call it but you're really sort of pushing on the causation point yes well also the law is what the law is that you know florida is not real clear on it other than that if there's a taking so we go to the no one decision there was a jury instruction on that that if you actively promote that that the that the general public goes onto the property and we don't claim this is a jury straight question because it's got to be a very high standard you can't hold cities to liability over just that seventy or an action or just i think has honored to have little thing in public access with mady i thought things had a sign up and said public access was city sale now they doubt and i'll get in there was evidence that they did it well your honor what it said was there was a sign that said beach access right next to the northern border a block am next to the hotel there's a path there that's been there a little sand past that's been there for twenty years i thought the former city planning director testified he often went to block him beach is a private citizen because he thought it was a public beach people coming going over block in a big parcel engaged in normal business act beach activities every time he went well your honor here's what the evidence really does show now i thought that was the testimony was that not the testimony of the for i don't believe so and if it's former it's got to be twenty years ago because what we have no no no no he was the former official twenty years ago but he testified as to things that had happened recently your honor there was testimony that persons go down that path to the mean to to the beach which are allowed to be at the mean how watermark their person there's three hundred people in the subdivision that also live there that are allowed to use the beach they're allowed to use the beach access path all the way down to the water's edge to the main high watermark that that drives people away from going between people's homes now what do you what else do you have well during a willful ball tournaments down their own debate each guy he tried to asked the willful lawyers to leave and the police chase him away and threaten him with the rest that's his testimony the jury could have credited center it was held there there were people that did wander over however everyone at that well football tournament was told by the city and this is undisputed that you're not to go across to block him whatever police officer was there we don't have any evidence that police officer was on duty or was a private police officer we do we have the testimony you just saw in the omni owners that the police chased him away and threatened him with the arrest your honor the police officer could have been an off duty cop nobody knew who hired the place where the city put that off so it doesn't matter he's a police officer or let's just assume you're right that that no no don't do it now also you're not going to win your appeal arguing with the testimony the jury heard testimony that he went down there and tried to get the people off his property and a police officer chased him away and threatened him with the rest that they would jury could have credited that witness's testimony that is what he said so we take it as a fact ok you take it as a fact that one police officer said he wasn't going to chase the of this city no of the city threatened well the property owner with the rest if the property owner didn't stop trying to remove people from his property your honor chet sure melissa he did say that about his property but in end the jury was entitled to instances like that make a real difference and show an active encouragement by the city that the public is supposed to go on that property what we have here is first rather a beach access sign the beach access sign sends people straight down to the beach along the northern edge of the promise of next to the hotel right then and there the city put up a big sign saying on the left side of that path private property subdivision owners of the dances are subdivision and so you're not supposed to go to the left when you go down that little path through the city affirmatively did something at the well football tournament not only did the city say to everyone involved you're not supposed to go on t if there was evidence don't tell me what you think the facts were was there evidence presented to the jury that the city rezoned their private property as a public park no i'm watching and it wasn't that wasn't painful was it that you're on now if he agrees with you that's fine if he disagrees with you you will have to determine from the record which one of me is right around can i talk about the zoning for a moment let me ask you just to set the stage you've been using this buzz phrase active encouragement where does that come from what is the standard what is the causation standard that we are to apply here it seems like everybody's sort of all over the place about what the causation standard is i don't know whether it ought to be sort of ordinary tort proximate cause or something else there are some fourth amendment instruction that the other side wants to use but what's the standard for causation that we ought to be looking at so that will know what to test the evidence against well your honor i think everybody took from the the u s supreme court case and nolan when you allow people to walk to and fro and traverse property that can be a taking but the known case says it's got to be with the encouragement of the city in other words a city has to cause ok if you're giving me a couple of instances where the city participated in a well football tournament yes for charity and a police officer may have done something that doesn't set the stage for a permanent continued continued traversing of that property especially proper you know that's one thing that people go on blocking them which is the big block it's another thing to go on the private property of mr jim lucy and if people do go on that private property that's one instance that's just did that did the city set up a scheme or a plan or in any way actively promote the general public to go across block him and on to mystic similar schemes property and the answer is absolutely not and it's not even a jury question also there and so that's i mean to me just what historically speaking i think of causation as a jury question the squishy fact bound it is the sort of thing that juries decide and then your difficulty i think is that there may not be sort of an official policy or a smoking gun but there's a little plus a little plus a little plus a little plus a little the renovation of the center of the sign with a ball turn at the c e o planting the moving of the furniture all of it which adds up to more than nothing certain you know certainly something out or you could conclude now it doesn't it doesn't add up to encourage and by the city there are obviously  homeowner him self testifying that he saw people from time to time crossing his property well three hundred homeowners in that subdivision are allowed to cross his property are allowed to put picnic tables whatever they want no on the beach property it but it's not like kindergarten you don't have to share with everybody you can decide who you share with and then the subdivision had decided that the owners of homes in that particular put a house three lots down from the from the dances are hotel at two hundred three at dinner time seven rooms you have a subdivision that allows those people to use the property to use the beach those people being subdivision homeowners that's correct and their relatives were ever staying in their house they all come to the beach together and they enjoy the beach now but that is the city's or why they can say this is the city supposed to card everybody come down to the beach with no but the city's not have to have a city manager testify and quote there if there was an event at the dun vista that gave people the right to use block m as it relates to mr chima lucy's property as part of block him that was is testimony is the official position position of these testified it was well that's his opinion i think you've got to look at what the city actually did what the facts were did the city you know you could find that they had a what the ball tournament you can also weddings on the beach there we don't know who had the weddings the weddings were whether in the weddings were in the don vesta center there's no evidence that any permit was issued to go down the beach of the don vista center the city had a right to promote the right to promote people to come there was a cultural center is literally right behind the house and just over a little bit it's a hold and you said we didn't know this is to judge carnes point didn't mr testify that the city in fact gave told people that they could use block him for weddings whether or not that was true didn't he testify that the city told people they could use block him for weddings i don't believe so i think the testimony is they could use the  city manager testified when twenty six to twenty and to twenty one people used to done this to building could use block him for a wedding your house of the city managers testimony all right mr turner yes your honor i'm pretty much going to rest of my brief i think you your orders from your questions obviously have stood our position a little sammy to take you to an issue in another that's a wise position to take but let me take you to an issue that hasn't been discuss yet and that is having paid one point four million in whether there is a city is entitled to have title on the property transferred to the city  a sort of concern i've looked at this hard not to look at it again hard here is the problem you're expert in the only evidence as to the value your expert took the value of their house and the beach property that they own after the quiet title action and then took it after the city effectively granted access to it yesterday and he took the value of the property and subtracted the to yes insead what they've suffered from the take and the severance damages to the house lot is one point four million and he didn't testify as to what the property was worth before and then subtract from it an eas subtracted from it the the entire property being gone is or understand the course pull a you've taken the money why shouldn't i get what they've been forced to buy from me several reasons understand the court's point that the appraiser effectively believed that the the value of the property was the right to exclude the public that is the number one it had no value beyond that only that near it it's your expert and  took the money and you didn't object and therefore and therefore you've bought into it that the property has no value once the easement is recognised and there you have no basis for not giving them the valueless property unless you just have this masochistic desire to pay property tax well yes or the judge found below that they had not moved this let me just take a moment and i'll explain the point  understand the court's point the first case is on kind of california actually the cases say that when you this is a damage proceeding it is not an equitable proceeding and if you want and there is no pleadings here ever s ht for any title they are free to bring whatever action they want to to seek clarification this was an easement take it now the fact that the easement is taken and there's a residual fee interest of no value in effect doesn't mean you get the title to the property you still only have taken an easement so easy money is what they would be if you want to talk about what they're entitled to their entitle to a right of passage or some sort of record easement except you don't get that an eminent domain case in an inverse case because it affectively is an easement it's on record we frankly don't have a problem giving them when i've already offered to give them some sort of a written if they want to recorded a rite of passage or something like i have a problem giving them title of the property i don't  property because he took that away when he gave the second appraisal the second appraisal now took it away as though it no longer belong to them he said that you have taken the market value of the property through the eas judge that the easement can take the market value there's a case in florida one ninety one southern second i will provide that for supplemental authority i think i may have cited my brief where the court said that you can take an easement which takes the value of the property but can be so extensive here the all we had was the right to exclude the public that's the value of that property of life so i don't understand why not give it to them with property is valueless they're going to charge you property taxes because something is going on your your nose you're contradicting the position of your expert that you put forward and of your theory of the case you're acting irrationally and i don't believe you're acting irrationally but you say some value in that contrary to what your experts opinion is beyond the easement is a residual value in the property has residual of some kind i don't know he didn't testify to any residual value he testified basically the second appraisal the value of that rectangular property beach access property and beach property is zero that's correct and there's severance damages to the remainder also  but the point is that the misuse the word value there has some it has some worth as the owner of the property because i don't know what might come next in terms of money he didn't consider that he didn't he didn't subtract from the one point for what might come next difference is i can only tell you the difference is that you can have a residual fee that's worthless that doesn't mean the title and if they wanted to take the residual fee they could they could they could condemn the residual feet they should have condemned it they condemned an easement now i don't know what the value is i don't know why it is i just know they didn't seek it in the pleadings and we know they have an easement based on this record in this they just instead of we waiting if we'd waited twenty years with a lot of the right to do this so we had to bring it with him but they've got an easement i frankly don't have a problem if they brought a proper plane or you know they brought up correctly the judge below denied it said you haven't sought it i'm sorry i'm sorry you didn't finish that first class i don't have a problem if they brought a if they have brought some action and asked him plaid for this  saving every proceeding now days as an equitable proceeding and that the court shouldn't enter a judgment that's an acrobat it is in equitable i propose and i want you to tell me why i'm wrong for them to pay the full value of the entire property and not get the profit on the theory that they've taken it from me you can't both side they took it from me and they didn't take it from me they took an  easement which rendered the property value list but it definitely don't take the they did not take or made a judge the best i can do is furnish you and supplemental authority if the court will permit me the case is them and i think there are several from california where this problem has been addressed and the court just says that you don't do it in this proceeding they're afraid they didn't seek equitable relief and so that's why i don't know why the court denied the court said you don't have any authority you have so i do think you have a complied with the rules so i don't get into that working to get them what if they want something of record when it would properly proper the case and all but then that means nothing and has no problem with doing what's proper appropriate and keep the principles of the republic now let a brace and that's the law that's fine but if that's not the law it is in equitable for you to collect his though you so you sell the property to them and then not give them the up years ago saying one thing private property yeah i thought they put up a sign about h x they did absolutely they they put it up after the renovation they put up signs at their at their mini park like the mini northern edge if you drew a line on the block him it would almost run into the northern edge of the mini park where was the sign right there at the right  from the mini park in the open that up they put a little concrete walkway there they open it up and you can walk right there down to the beach and of course go across the block and that's what people do that's what the planning director said but the actual trail goes it please the court my name is christina martin and i'm here representing the meekest carrying the pacific legal foundation the florida constitution's takings clause which fort florida courts have interpreted as coextensive with the federal takings clause requires that government just compensation when it causes a physical per se taking i want to address a question that you raised earlier judge newsom and that was what is the standard the cause ation standard at the city suggests that it cannot be liable for a taking because it did not actively encourage by formally announcing to the public that they could use the beach but once again the law makes no such demand rather under arkansas game and fish commission government can create an easement one of two ways one either through it intentionally taking an easement or two by acting in a manner that the foreseeable outcome would be to take an easement either of the court in arkansas game and fish cited to a case called ridgeline which is also appears in the city's brief and that the supreme court explained that that actually has a pretty good explanation differentiating between the standard in negligence actions and the standard in takings and in takings you can demonstrate an easement was taken by the government if it would be a direct natural or probable result of the government's actions so it's similar but the the case explains some nuances between th that yes your honor and just to address what the chief judge raised earlier i would just say that the testimony from the appraiser made the presumption that the public beach parcel would continue to be used as a public beach and the problem is if you give the simple over to the government that they could then say build a facility there they could use it for a variety of other uses not contemplated by the appraiser and i would just say that that in my experience you can take almost the entire value of property just by giving over an easement for instance in buyer it's not in any of the briefs but in them buyer case out of the third dca the property owners there had a ninety eight her island in the florida keys that became almost worthless because it was left with only a token value because it was  knows in florida with the property taxes on this partial because it is a minute you several thousand dollars a year in property tax what you willing to pay for nothing well i think that once this case is concluded in that it's deemed a public beach access over that that parcel that he would have a very good case that the he shouldn't be paid much of anything in property taxes i don't think  simple but i don't think that satisfies the requirements of the takings clause in that for instance trailer ranch versus city of pompano beach that a condemning authority exercising the power of eminent domain is not permitted to acquire a greater quantity of property or interest there in than is necessary to serve the public purpose for which the property is acquired the appraiser was wrong my problem and concern this so you understand is not with how much they should have taken the max they could have taken my problem is the theory of the plans and they put forward the expert and they argued it and they got a jury verdict based on it was that the property is that you list they've taken the whole thing and now to say they didn't take the whole thing is not it may be too late may not be part of this proceeding but it's just  well i would i would say that the city had the opportunity to offer evidence that the property would still have some remaining value after this easement was imposed contrary to the city's interest the city's interest is the property has nothing but one point four eight million and that's what we paid therefore we get the property it would have been against the city's interest to say it was really worth two million so we don't get the property because we only interest in the property in this case easement was never a theory of the case they went for the whole amount and went to trial for the whole amount the words meant was never used in the case in the complaint or anywhere else and should the city get the property obviously is still subject to the deed restrictions of the subdivision so the city does get something but it's not going to you know if it doesn't get the property values full value of the property the next homeowners are going to sue the city again for the same thing so it seems to me they're tired there was a taking under the florida constitution without just compensation when their only evidence is not easement but full taking its valueless to them and we are going to have to pay it if this court says so and we get title to the property can i ask you a question because i certainly take judge carnes in equity point i had the same unease about this but if it was so obvious to everyone that this inequity be in equity would result why didn't you make this argument before this passing reference in your own now we fought against in verse condemnation got it we i mean there was a plan b presumably in the offing right i mean if they win then rather than needed to be pleaded we expected a not guilty that's our they didn't they didn't try to super nice but they just said we want the whole thing we want you want you on the property in essence inverse condemnation and so ok i'm post sions the judge denied our motion for a new trial motion for directed verdict so we said ok then we need title to the property i guess you could and now analogize your position on the procedure i'm not sure this works but you could analogize it to saying in a criminal is it is it right or wrong that this was is it fair to call it a passing reference or was this something that was actually on our own now we got involved post trial motions and drafted the poster on motions with the trial lawyers and this was you know it's not fair when the district court says that this was a single sentence in a post trial motion if any amount is awarded for the taking claim the city request the title the pathway and b to possibly transfer the city there's a lot more than that even if it was a short argument if the i guess it just descriptive obviously there's some testimony from chairman lose key and that the court picked from the record today that one could say oh well this is all a jury question but remember this has to be applied  cities and all beaches and all subdivisions and and how if you take a sheet of paper and write down all the things the city did affirmatively to stop this all they all that they were allowed to post signs on their property private property which they didn't do we posted the sign at the north and at the south yes we had a beach access sign but people were allowed from the subdivision to channel their way down to the beach not just walk through between houses so ok if that had some bearing on the public because they happened to be there but later the done business center look at the parking lot no hotel or beach parking only passes permitted that had to be on the dashboard of the car parking enforcement was there if you could just make a list you'll see that the city really did affirmatively all they could do to stop the public from going there thank you thank you let me correct joe there are actually two sentences at fifty be the first in the first section in the alternative the city moves for a new trial percent rw fifty nine are remitted tour and transfer of title in the last section finally if any part if you want to but you know they didn't they didn't know they were going to have to pay damages until the verdict came in and then have the city respond seven days enough for you you