               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


DEPARTMENT OF                                 )
TRANSPORTATION,                               )
                                              )
             Appellant,                       )
                                              )      Case No. 2D15-2030
v.                                            )
                                              )
BUTLER CARPET COMPANY, a                      )
Florida Corporation, d/b/a BOB'S              )
CARPET MART,                                  )
                                              )
             Appellee.                        )
                                              )
DEPARTMENT OF                                 )
TRANSPORTATION,                               )
                                              )
             Appellant,                       )
                                              )      Case No. 2D15-3075
v.                                            )
                                              )
CHK, LLC, a California Limited Liability      )
Company,                                      )
                                              )
             Appellee.                        )      CONSOLIDATED
                                              )

Opinion filed May 31, 2017.

Appeals from the Circuit Court for Pinellas
County; Pamela A.M. Campbell and Walter
L. Schafer, Jr., Judges.

Clinton L. Doud, Special Counsel and Marc
Peoples, Assistant General Counsel,
Department of Transportation, Tallahassee,
for Appellant.
Raymond T. Elligett, Jr., and Shirley T.
Faircloth of Buell & Elligett, P.A., Tampa;
James A. Helinger, Jr., of Law Offices of
James A. Helinger, Jr.; and D. Tobyn
DeYoung of D. Tobyn DeYoung, P.A.,
St. Petersburg, for Appellees.


SLEET, Judge.

                 The Department of Transportation appeals the stipulated final judgments

awarding damages to Butler Carpet Company and CHK, LLC, in individual inverse

condemnation actions brought by Butler and CHK concerning properties along U.S. 19

in Pinellas County.1 We affirm the trial courts' awards to Butler and CHK of damages

for the actual physical takings of portions of their properties. However, because the trial

courts in these individual cases both erred in finding that the Department's partial

physical takings of the properties directly caused severance damages for loss of access

and visibility and that access to each property was substantially diminished as a result

of the U.S. 19 construction project, we reverse those portions of the final judgments that

award severance damages and damages for substantially diminished access and loss

of visibility.

                 The facts in these cases are undisputed. Both properties are similarly

situated on either side of U.S. 19 in Pinellas County—Butler on the eastern side and

CHK on the western side. Butler owns and operates a business called Bob's Carpet

Mart on its property, and CHK owns property upon which there is a furniture store. Prior

to the Department's U.S. 19 reconstruction project, Butler's property directly abutted the

road's northbound lanes and CHK's property directly abutted the southbound lanes. At


                 1We   have consolidated these appeals for the purposes of opinion only.

                                              -2-
that time, motorists could directly access these commercial properties via driveways

that connected to U.S. 19, as well as by other local roads running along the sides and

backs of the properties. Old U.S. 19 was rebuilt as an elevated highway with twenty-

five-foot-high walls. On either side of U.S. 19, the Department constructed frontage

roads that directly abut Butler's and CHK's properties. As such, there is no longer direct

access from U.S. 19 to Butler's and CHK's properties, and instead access is via the

frontage roads and the existing side and rear local roads. The frontage roads can be

accessed from U.S. 19 at major intersections via exit ramps and U-turns beneath

overpasses. The exits include signage displaying businesses' names and addresses to

alert motorists of which exit to use to access properties along the frontage roads.

              New U.S. 19 and the frontage roads were constructed on the

Department's own right of way. But the Department encroached upon small portions of

Butler's and CHK's properties to construct driveways and sidewalks connecting the

properties to the frontage roads, and an additional portion of Butler's parking lot was

used to build a drainage area. The Department did so without permission from the

property owners and without instituting eminent domain proceedings. As a result, both

Butler and CHK filed actions for inverse condemnation against the Department.

              The Department stipulated pretrial that it did not have the legal right to

physically invade Butler's and CHK's properties and that the reconstruction of U.S. 19

damaged both properties. As such, the only issue at each trial was whether the

damage caused by the Department was compensable.

              After conducting nonjury trials on the issue of liability, both trial courts

entered orders finding compensable takings for the physical encroachment and

construction upon the properties and ruling that both Butler and CHK were also entitled

                                             -3-
to severance damages for loss of access and visibility and damages for substantially

diminished access. The parties then entered into mediated settlement agreements

setting forth the amounts of damages, as well as attorney fees and costs.

              On appeal, the Department does not challenge either trial court's finding

that physical takings occurred in these cases. Rather the Department argues that the

trial courts erred in finding compensable severance damages for loss of access and

visibility due to the Department's partial physical takings. The Department maintains

that the loss of access and visibility did not result directly from the physical takings but

rather from the overall impact of the construction of new U.S. 19 and the frontage roads

on the Department's own property. The Department also argues that the trial courts

further erred in determining that Butler and CHK were entitled to compensable damages

because the project substantially diminished access to their properties. We agree with

both of the Department's arguments.

              The general policy of takings law "is that owners of property taken by a

governmental entity must receive full and fair compensation." Fla. Dep't of Transp. v.

Armadillo Partners, Inc., 849 So. 2d 279, 282 (Fla. 2003) (quoting Broward County v.

Patel, 641 So. 2d 40, 42 (Fla. 1994)). "When less than the entire property is being

appropriated, 'full compensation for the taking of private property . . . includes both the

value of the portion being appropriated and any damage to the remainder caused by the

taking.' " Id. at 282-83 (quoting Div. of Admin. v. Fenchman, Inc., 476 So. 2d 224, 226

(Fla. 4th DCA 1985)). "The damage to the remainder caused by the taking is also

referred to as severance damages, damage caused by severing a part from the whole."

Id.




                                             -4-
                                I. SEVERANCE DAMAGES

              In an inverse condemnation proceeding grounded upon an alleged loss of

access, the trial court makes both findings of fact and conclusions of law. Palm Beach

County v. Tessler, 538 So. 2d 846, 850 (Fla. 1989). The trial court, as finder of fact,

resolves all conflicts in the evidence and "[b]ased upon the facts as so determined . . .

then decides as a matter of law whether the landowner has incurred a substantial loss

of access by reason of the governmental activity." Id. On appeal, "the trial court's

factual findings are afforded deference, but its application of the facts to the law . . . is

reviewed de novo." Dep't of Transp. v. Fisher, 958 So. 2d 586, 590 (Fla. 2d DCA 2007).

              The general rule in takings law is that "[w]hen less than the entire property

is taken, compensation for damage to the remainder can be awarded only if such

damage is caused by the taking." Div. of Admin., State Dep't of Transp. v. Capital

Plaza, 397 So. 2d 682, 683 (Fla. 1981) (emphasis added) (determining that the

landowner was not entitled to severance damages for loss of access caused by a new

median that was constructed on the Department's own right of way and not by the

widening of a road that was performed on a portion of property taken from the

landowner); see also City of Jacksonville v. Twin Rests., Inc., 953 So. 2d 720, 723-24

(Fla. 1st DCA 2007) (reversing award of severance damages for changes in traffic flow

caused by construction of new median on the city's own right of way because award

was inconsistent with supreme court's holding in Capital Plaza "that landowners have

no compensable interest in traffic flow and that, in order to receive severance damages,

any complained-of impairment must result directly from a taking" (quoting Capital Plaza,

397 So. 2d at 683)).




                                             -5-
              Nevertheless, Butler and CHK maintain that they are entitled to severance

damages here pursuant to this court's opinion in Fisher, 958 So. 2d 586. In Fisher,

where there was no physical taking by the Department, a landowner whose property

abutted U.S. 19 before the roadway's reconstruction brought an inverse condemnation

action for loss of access because he was left with only direct access to a frontage road.

This court ultimately reversed the summary judgment based on our conclusion that the

landowner's access had not been substantially diminished. But in doing so, this court

stated that "when the government physically appropriates some portion of a property

owner's land, any diminished access to the property may be considered as part of the

severance damages owed for the reduced value of the remainder of the land." Id. at

589 (citing Tessler, 538 So. 2d at 849). Both trial courts in the instant cases relied upon

this statement to conclude that the Department's physical takings here automatically

entitled Butler and CHK to severance damages for loss of access. Such, however, is a

misreading of Fisher.

              This statement in Fisher does not create an automatic entitlement to

severance damages for loss of access whenever there has been a partial taking. This

court merely stated that diminished access "may be considered" when determining

severance damages. 958 So. 2d at 589. There was no reason for this court to

elaborate on this legal concept in Fisher because there was no partial taking in that

case and severance damages therefore were not at issue. But this court did recognize

in Fisher that in order to establish compensable damages for lack of access, a

landowner must show a connection between the government action and the loss of

access. Id. at 592 ("[T]he Fishers have not shown that the Department's actions

destroyed or diminished access to their property. Rather, they have shown only that

                                           -6-
drivers must now travel a less convenient route from the newly constructed U.S. 19 to

their property. Thus . . . the Fishers have failed to show that they have suffered a

compensable loss of access.").

              Accordingly, where there has been a partial taking of property and the

landowner brings a claim for loss of access, the trial court must first determine whether

the claimed loss of access is a direct result of the use or activity on the land taken or

whether it is solely the result of activity that occurred on property other than that taken

from the property owner. If the claimed loss of access is not caused by the use to which

the property taken has been applied, the property owner is not entitled to severance

damages for loss of access. Capital Plaza, 397 So. 2d at 683. But if the evidence

demonstrates a direct connection between the activity on the taken property and the

claimed loss of access, the property owner is entitled to severance damages for the loss

of access he or she can prove. Fisher, 958 So. 2d at 589.

              Applying this standard to the instant cases, we conclude that Butler and

CHK are not entitled to severance damages for loss of access. The Department's

takings of these properties were for the specific purpose of reconstructing Butler's and

CHK's driveways to connect the properties to the public frontage road and, in Butler's

case, to construct a drainage area. But Butler's and CHK's claims for loss of access did

not relate to this construction and instead were grounded upon the reconfiguration of

U.S. 19 and construction of a frontage road system, which—like the median in Capital

Plaza—occurred on the Department's own existing right of way, not on the land taken

from the property owners.

              We do recognize that in Lee County v. Exchange National Bank of Tampa,

417 So. 2d 268 (Fla. 2d DCA 1982), this court carved out a very narrow exception to

                                            -7-
Capital Plaza's general rule. The Lee County exception "authorizes an award for

damages to the remainder where the use of the land taken constitutes an integral and

inseparable part of a single use to which the land taken and other adjoining land is put."

Id. at 270. However, a taking does not fall within this exception, and severance

damages are not proper, if it is "practicable to separate the use of the land taken from

that of the adjoining land." Id. at 271 (quoting Pub. Serv. Elec. & Gas Co. v. Oldwick

Farms, Inc., 308 A.2d 362, 365 (N.J. Super. Ct. App. Div. 1973)). Such is the case

here. There is a clear distinction between the project constructed on the Department's

right of way and the work executed on Butler's and CHK's properties. The U.S. 19

project involved major construction of a new elevated highway and the frontage road

system for the purpose of improving the flow of traffic on U.S. 19. In contrast,

construction upon the taken portions of Butler's and CHK's properties was designed to

enhance and improve driver access between the properties and the frontage roads.

Butler's and CHK's claims of loss of access stem from the Department's use of its own

right of way independent of the small portions of land taken from the property owners.

This is not the factual scenario envisioned by the Lee County court. See id. at 269-70

(noting that a good example of the general rule's exception would be highway

construction cases "grounded on the premise that it is impossible to separate the

damages caused by the small portion of the highway built upon the taken land from the

damages caused by the highway as a whole" (emphasis added)).

              At trial, Butler and CHK each presented the expert witness testimony of an

engineer,2 who stated that the use to which their land was put was an "integral and


              2CHK   and Butler both engaged the same engineer to testify as an expert
witness at their respective trials.

                                           -8-
inseparable part of the entire project" because the reconstruction of U.S. 19 made it

necessary for the Department to connect the properties to frontage roads, improve the

sidewalks, and in Butler's case, provide a drainage area. He also testified that the

sidewalks had to be improved to comply with the federal Americans with Disabilities Act

in order for the Department to receive federal funds to complete the entire project. But

there was no testimony or evidence that the work on the land taken by the Department

directly caused a loss of access. See Twin Rests., 953 So. 2d at 722 ("Twin put on no

evidence that the actual taking of its property, as opposed to effects it anticipated from

median-induced changes in traffic flow, would cause any severance damages."). In

fact, both he and the Department's engineer agreed that the work performed on the

property taken improved access from both properties to the frontage road. As such, the

Lee County exception is inapplicable to the instant cases. See Lee County, 417 So. 2d

at 271 ("[W]here it is possible to separate the element of damage to remaining lands

due to use of the land taken from the owner, from the damage thereto flowing from the

use of lands taken from others for the same project, the measure of damage is limited to

that caused by use of the land taken from the owner." (quoting Oldwick Farms, 308 A.2d

at 364)).

              As such, Butler and CHK are not entitled to severance damages for their

claims of loss of access.

                     II. SUBSTANTIAL DIMINUTION OF ACCESS

              Independent of their claims for severance damages due to loss of access,

Butler and CHK could be entitled to compensation if the Department's actions amounted

to a taking by substantially diminishing access to their properties. See Tessler, 538 So.

2d at 849 (holding that "[t]here is a right to be compensated through inverse

                                            -9-
condemnation when governmental action causes a substantial loss of access to one's

property" independent of whether there was a physical taking). "The owner of property

abutting a public wa[y] has a right of ingress to and egress from his property." Weir v.

Palm Beach County, 85 So. 2d 865, 868-69 (Fla. 1956); see also § 334.03(20), Fla.

Stat. (2009) (defining "right of access" as "the right of ingress to a highway from abutting

land and egress from a highway to abutting land"). "[W]hen an established land service

road is converted into a limited access facility the abutting property owners are entitled

to compensation for the destruction of their previously existing right of access." Anhoco

Corp. v Dade County, 144 So. 2d 793, 797 (Fla. 1962).3 However, this right is

"subordinate to the underlying right of the public to enjoy the public way to its fullest

extent as well as . . . to have the way improved to meet the demands of public

convenience and necessity." Weir, 85 So. 2d at 869; see also Bowden v. City of

Jacksonville, 42 So. 394 (Fla. 1906). And " 'access' as a property interest does not

presently include a right to traffic flow even though commercial property might very well

suffer adverse economic effects as a result of a diminution in traffic." State Dep't of

Transp. v. Stubbs, 285 So. 2d 1, 4 (Fla. 1973).

              In Tessler, 538 So. 2d at 849, the Florida Supreme Court explained:

              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.


              3"A limited access facility may be described generally as a broad super-
highway with traffic lanes separated by a central median strip, and with ingress and
egress to and from the highway only at designated interchanges or crossovers,
oftentimes substantial distances apart." Anhoco, 144 So. 2d at 797.

                                            - 10 -
The trial courts here relied on Tessler to determine that there had been compensable

takings of access in the instant cases. Based on our de novo review, we conclude that

this was error. See Fisher, 958 So. 2d at 590.

              In Tessler, the court concluded that evidence that the proposed

government action in that case, when completed, "would block all access" to the public

roadway that the landowner's business fronted and would leave "access thereto only

through a circuitous alternative route through residential streets" supported "the

conclusion that there was a substantial loss of access." 538 So. 2d at 847, 850. Here,

however, the government action did not "block all access" to the public roadway;

instead, the Department's reconstruction project included public frontage roads that

provided access to U.S. 19 from Butler's and CHK's properties. As such, Tessler is

factually distinguishable from the instant case.

              So too are Stubbs, 285 So. 2d 1, and Department of Transportation v.

Krieder, 658 So. 2d 548 (Fla. 4th DCA 1995), both of which Butler and CHK cite on

appeal. In Stubbs, the Department's project included a plan to permanently close the

part of the public road abutting the landowner's property without constructing a service

road or any other road to replace access to the public road, "seriously disturb[ing], if not

destroy[ing]" the property's ingress and egress. 285 So. 2d at 3. The landowner's

property would go from being "accessible to automobile traffic moving both north and

south" on the public road to being placed in a cul-de-sac. Id. at 2. In Kreider, the

abutting landowner's access to the main travel lanes of a state road was replaced with

access to a one-way service road that was characterized as a "road to nowhere." 658

So. 2d at 550. Neither factual scenario is similar to the facts of the instant cases.




                                           - 11 -
              Furthermore, placement on a frontage road alone does not per se amount

to a substantial diminution of access or, therefore, a compensable taking. See Tessler,

538 So. 2d at 849 ("The loss of the most convenient access is not compensable where

other suitable access continues to exist."); see also Rubano v. Dep't of Transp., 656 So.

2d 1264, 1269 (Fla. 1995) ("[W]e noted in Anhoco[, 144 So. 2d 793,] that the completion

of the service road, which provided Anhoco with access to the highway, had effectively

remedied Anhoco's access problem."); Fisher, 958 So. 2d at 589-90 (concluding that

access was not substantially diminished despite the fact that Fisher's property could

only be reached via the frontage road); cf. Anhoco, 144 So. 2d at 798 ("It will be recalled

that by the time the instant condemnation suit was instituted the State Road Department

had constructed a frontage road paralleling the limited access facility and running the

length of Anhoco's property. This road appears to have provided reasonable access to

the new highway from both theaters. If this had been done at the outset much of the

instant problem would never have arisen."). Instead, placement on the frontage road is

a factor to be considered in the accessibility analysis.

              In the instant cases, the provision of frontage roads preserved Butler's and

CHK's individual access to a public road. And as the supreme court in Tessler

recognized, a property owner's right of ingress and egress is to a public road, not to a

particular public road. 538 So. 2d at 849 (stating that "the fact that a portion or even all

of one's access to an abutting road is destroyed does not constitute a taking unless" the

landowner's overall access is substantially diminished (emphasis added)). Additionally,

access to Butler's and CHK's properties via side and rear roads was unaffected by the

U.S. 19 project.




                                           - 12 -
              Butler and CHK presented evidence below similar to that presented by the

landowner in Fisher of the longer routes northbound and southbound drivers would

have to take to access the affected properties via exit ramps, U-turns, and frontage

roads. 958 So. 2d at 590. Like we did in Fisher, we conclude that Butler and CHK have

merely established that they have lost "their most convenient means of access" to their

properties but that such "is not compensable under the clear holding of Tessler." Id. at

590-91. "[M]ere circuity of access is not compensable unless the remaining access to

the property is 'substantially diminished.' "4 Id. at 589.

              Additionally, Butler and CHK have not demonstrated that they have

suffered special damages not common to the general public. See Rubano, 656 So. 2d

at 1270 ("[I]f injury or inconvenience is the same in kind as that suffered by others

similarly situated, but different only in degree, compensation is not recoverable."

(quoting Anhoco, 144 So. 2d at 798)). Butler and CHK are in no different position than

any other landowner abutting a U.S. 19 frontage road. They have not established that

they are entitled to compensable damages due to the substantial diminution of access

to their properties.

                                 III. LOSS OF VISIBILITY

              With regard to Butler's and CHK's claims of loss of visibility, we start with

the general rule that any decrease in visibility suffered as a result of the overall U.S. 19

construction project is not compensable. See Dep't of Transp. v. Weggies Banana


              4The   engineer for Butler and CHK based his distance calculations on a
starting point that would require every driver traveling to these businesses to opt to use
an exit other than the one nearest to each business. We can only assume that the
reason for this method of calculation was to enhance the evidence of routes that are
circuitous and time consuming, but the length of the new routes supported by this
testimony does not change our analysis under Tessler and Fisher.

                                            - 13 -
Boat, 576 So. 2d 722, 724 (Fla. 2d DCA 1990). In Weggies, this court stated that "any

decrease in visibility or increased circuity of access Weggies suffered as a result of the

overall design of the project is not compensable." Id. For that proposition, this court

relied on Division of Administration, State Department of Transportation v. Ness Trailer

Park, Inc., 489 So. 2d 1172, 1180 (Fla. 4th DCA 1986), which involved a loss of access

claim—not a loss of visibility claim—and which relied on the Capital Plaza general rule

to reverse an award of severance damages "when the directly taken property was not

used for the purpose of limiting access." As such, this court in Weggies recognized that

the general rule of Capital Plaza is not limited to loss of access claims. See Capital

Plaza, 397 So. 2d at 683 ("When less than the entire property is taken, compensation

for damage to the remainder can be awarded only if such damage is caused by the

taking." (emphasis added)). Here, Butler and CHK allege loss of visibility caused by the

construction of elevated U.S. 19. Because they have not alleged a damage that is the

result of the partial taking, Capital Plaza precludes recovery for their loss of visibility

claims.

               Furthermore, "the agency controlling the street may in fact interfere with

easements of light, air, and view without [it] constituting a taking so long as the

interference is reasonable." State, Dep't of Transp. v. Suit City of Aventura, 774 So. 2d

9, 14 (Fla. 3d DCA 2000) (first citing Tessler, 538 So. 2d at 848; and then citing

Benerofe v. State Rd. Dep't, 217 So. 2d 838, 839 (Fla. 1969)). In Suit City, the Third

District concluded that the "interference" there, "i.e., the elevation of the lanes[, was] not

a taking of light, air, or view (or visibility). Reducing the traffic distress at this

intersection by elevated lanes is certainly within the discretion of the [Department] and

is well within the bounds of reason." Id. Here, the reconstruction of U.S. 19 on the

                                              - 14 -
Department's own right of way for the purpose of increasing traffic flow and reducing

traffic distress is also well within the bounds of reason. As such, Butler and CHK are

not entitled to severance damages based on their claims of loss of visibility.

                                    IV. CONCLUSION

              We affirm the awards to Butler and CHK of damages for the actual

physical takings of portions of their properties. However, we reverse the trial courts'

awards of severance damages and damages for substantially diminished access and

loss of visibility. Furthermore, even though the parties agreed to specific amounts of

attorney fees and costs in their mediated settlement agreements, those agreements

also noted that the Department reserved the right to appeal "this matter in its entirety."

As such, on remand, the trial courts shall reconsider the issue of attorney fees and

costs. Finally, because our disposition will reduce the amounts of the overall awards to

Butler and CHK, on remand the trial courts shall also recalculate prejudgment interest.

              Affirmed in part, reversed in part, and remanded with instructions.


CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           - 15 -
