         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                          No. 1D18-2407
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ROBERT SIMON and SUSAN
SIMON,

    Appellants,

    v.

DEER MEADOWS HOMEOWNERS’
ASSOCIATION, INC., a Florida
non-profit corporation, and THE
CITY OF JACKSONVILLE, a
Florida municipality,

    Appellees.
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On appeal from the Circuit Court for Duval County.
Karen Cole, Judge.

                          July 10, 2019


WINOKUR, J.

    Robert and Susan Simon brought an action for inverse
condemnation against the City of Jacksonville alleging that it
committed, and continuously commits, a taking because
neighborhood streets dedicated to the City direct storm water to a
pond that sits partially on the Simons’ property. The trial court
disagreed, and we do as well. 1

     In 1984, a developer and builder created the Deer Meadows
subdivision and designed its stormwater system to direct water
from the streets into two ponds, one of which is located on lots 15
and 16. The developer recorded a plat depicting the streets and
easements (but not the pond), and the City accepted the plat as
well as the responsibility to maintain the streets and easements.
Lot 16 was first sold in 1986, and the Simons became the fourth
owners in 1993. The Simons knew there was a pond on lot 16 that
received storm water from the neighborhood and, prior to
purchasing the lot, were advised that the then-owners of lot 15 as
well as previous owners of lot 16 maintained the pond themselves.
Over a decade later, the Simons determined that the City should
be responsible for maintaining the pond and, when the City
disagreed, filed suit. The Simons’ claim for inverse condemnation
alleged that the City owns or controls the streets, or both, that the
streets are designed to discharge storm water into the Simons’
pond, that the City has no property rights to the pond, and that
the City is thus using (or “taking”) the pond.

     The trial court found that the Simons could not assert a claim
for inverse condemnation because, even if there had been a taking
by the City, it occurred before the Simons (or the three prior
owners) purchased the property and there was no evidence that
the Simons had been transferred any interest in an inverse-
condemnation claim. On appeal, the Simons argue that the City is
committing a taking without compensation, that their claim is not
barred because the City did not show that its use of the pond was



    1  The Simons also challenge the trial court’s related order
denying declaratory relief that they sought on the questions of
whether the Association, or the City, or both, owned easements to
the pond, whether they were entitled to use the pond for
stormwater treatment, and who was responsible to operate and
maintain the pond. They also challenge the trial court’s finding
that the Association’s counterclaim was moot. We affirm the trial
court’s rulings on these issues without comment.

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adverse to all prior owners, and that the Simons’ revocation of any
existing license to use the pond permits this claim.

     In Department of Transportation v. Burnette, 384 So. 2d 916,
918-19 (Fla. 1st DCA 1980), the government reversed the natural
flow of water drainage to allow for the building of a school,
redirecting the flow towards the subject property which “impose[d]
a substantial burden” by making half of the property subject to
flooding. Later, the owner of the 100-acre property alleged that the
government’s action prohibited him from building a development
he planned to build and constituted a constitutional taking. Id.
This claim was flawed because the governmental acts complained
of were before the plaintiff’s purchase of the property; the “land
was permanently ‘taken,’ if at all, some years before” the plaintiff
purchased it and it was the prior owners “who were deprived of
rights in property, if anyone was[.]” Id. at 919-20. Only the owner
at the time of the taking has suffered an injury entitling him to
recovery:

    The theory is that where the government interferes with
    a person’s property to such a substantial extent, the
    owner has lost a part of his interest in the real property.
    Substituted for the property loss is the right to
    compensation. When the original owner conveys what
    remains of the realty, he does not transfer the right to
    compensation for the portion he has lost without a
    separate assignment of such right.

Id. at 920 (quoting Brooks Inv. Co. v. City of Bloomington, 232
N.W.2d 911, 918 (1975)).

    Here, any governmental acts were taken long before the
Simons bought the property. 2 The Simons bought the property
knowing that a pond was on it, that the pond received
neighborhood stormwater, and that the prior owners had
maintained it themselves. The Simons may not purchase the

    2  We do not hold that the City’s acceptance of a plat and
maintenance responsibility for roads and easements for public use
could qualify as a taking of a retention pond for purposes of inverse
condemnation.

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property fully aware and then claim a governmental taking and
demand compensation. See id. (“If the rule were otherwise, the
original owner of damaged property would suffer a loss and the
purchaser of that property would receive a windfall.”). Contrary to
the Simons’ contention, this case is not similar to Brevard County
v. Blasky, 875 So. 2d 6, 10, 12-13 (Fla. 5th DCA 2004), where a
revocable written license granted the government permission to
use land until the government abruptly asserted title to the
property. Rather, a builder and developer designed a subdivision
where lot 16 would receive neighborhood storm water, the City
accepted responsibility to maintain roads and easements, and the
Simons eventually purchased the property. If there was any action
taken by the City that could constitute a taking, it was long before
the Simons owned the property.

    AFFIRMED.

B.L. THOMAS, J., concurs; WETHERELL,3 J., concurs in result.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Jeffrey C. Regan and Judson Bradley of Regan, Whelan, Zebouni
& Atwood, P.A., Jacksonville, for Appellants.

Joseph D. Pickles and Michel Fox Orr of the Law Offices of Dawson
& Orr, P.A., Jacksonville, for Appellee Homeowners’ Association;
Jason R. Teal, Deputy General Counsel, and Jeffrey C. Close,
Assistant General Counsel, Jacksonville, for Appellee City of
Jacksonville.




    3Judge Wetherell did not participate in oral argument but he
did watch the video recording of the argument.

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