V. THE COUNTY'S DUTY TO MAINTAIN ROADS
An examination of the applicable statutory authority is a necessary
preface. Florida Statutes, section 125.011 (1977) provides:
The legislative and governing body of a
county shall have the power to carry on
county government. To the extent not incon-
sistent with general or special law, this
power shall include, but shall not be restricted
to, the power to:
(m) provide and regulate arterial, toll, and other
roads, bridges, tunnels, and related facilities;
eliminate grade crossings; provide and regulate
parking facilities; and develop and enforce plans
for the control of traffic and parking.
Additionally, section 336.02 states:
The county commissioners are invested with the
general superintendence and control of the
county roads and structures within their respect-
ive counties and may establish new roads, change
and discontinue old roads, and keep the same in
good repair in the manner herein provided.
While the statutory language quoted above speaks in permissive
terms, a few cases have interpreted similar language to imply a duty of
maintenance by the county. In State ex. rel. Garrison v. County Com-
missioners of Putnam Co., 3 So. 164 (Fla. 1887) the plaintiff, an abutting
property owner, sought a writ of mandamus to compel the county to repair
a road which had been obstructed by the construction of a railway. The
county contended that responsibility for maintenance and repair rested
with the railroad company. In finding mandamus a proper remedy in this
situation, the Florida Supreme Court spoke broadly of the county commis-
sion's statutory "duty" to maintain county roads, and held that the duty
could not be relieved through delegation to the railroad. Later, in White
v. McGibbon, 84 So. 91 (Fla. 1920), the Court was asked to determine a
county's authority to purchase certain clay deposits as a source or road-
building materials. Within this context, the Court noted:
Under our statutes, the boards of county commis-
sioners are given plenary power and authority
over the location, building, repairing, and keep-
ing in order the public roads in their respective
counties, and it is made one of their continuous
duties so to locate, build, repair, and keep said
roads in good order. [emphasis added
However, given the circumstances of the case being decided, the quoted
statement may be regarded as mere dicta.
In the only other discoverable interpretation of the applicable
statutes, the Florida Attorney General was asked to determine a county
commission's authority to fix minimum construction standards for roads
built by private developers. Atty.Gen.Op. 057-292. The opinion looked
to the wording of Florida Statutes, section 125.01 (1955) and found that,
in view of the statutory powers and duties, reasonable minimum construction
standards could be required since,"it would seem that the county commission-
ers would have the ultimate duty of maintaining roads and streets built by
private individuals in subdivisions in the county, when such roads and
streets, as dedicated, have been accepted by the county." However, Florida
Statutes, section 125.01 has since been amended to eliminate the explicit
duty to repair and maintain county roads.
It must also be noted that under current law the county has the power
to abandon old roads. Fla. Stat. 336.02 (1977). In addition, Florida
Statutes, section 336.09(1).empowers county commissioners "in their own
(a) vacate, abandon, discontinue and close any
existing public or private street, alleyway, road,
highway, or other place used for travel or any
portion thereof, other than a state or federal
highway, and to renounce and disclaim any right of
the county and the public in and to any land in
This authorization extends to roads acquired by dedication, 336.09(1)(b),
and to those apparent on any map or plat as well, 336.09(1)(c).
In light of this authorization, it would seem that where a county
follows the proper procedure for vacation of highways, no action to
compel road maintenance could logically be sustained under the statute.
Thus, the County's liability for failure to maintain roads within its
jurisdiction is countered, if not completely obviated, by its concomitant
power of abandonment.
The more pressing problem concerns interference with the right of
property owners to have access to their property. It probably does not
matter whether access is lost because the County fails to maintain roads
or affirmatively abandons them. The legal question in either case would
be whether the County has unconstitutionally taken the right of access.
Liability for Blocking Access
County Commissioners have been deemed to possess a "wide latitude of
discretion" in the exercise of the power to abandon roads. Wedner v.
Escambia Chemical Corp., 102 So. 2d 631 (Fla. 1st D.C.A. 1958); Central
and Southern Florida Flood Control District v. Scott, 169 So. 2d 368
(Fla. 2d D.C.A. 1964). However, where the abandonment of a highway inter-
feres with a property owner's right of access, it might constitute a
taking of property for which compensation must be paid. See generally,
Nichols, Law of Eminent Domain, 6.32; 26 Am. Jur. 2d 199.
r Early decisions in Florida concerning the question of access arose
from changes in the grade or elevation of streets relative to private
property. In Selden v. City of Jacksonville, 10 So. 457 (Fla. 1891), the
City had apparently built an overpass over some railroad tracks. As a
result, the access of adjoining landowners was completely blocked unless
they built, at their own expense, a way up to the level of the new road.
Id. at 465. Despite this substantial impairment of the plaintiff's
existing access, the court held there was no taking. It stated that
although landowners have a "right of egress and ingress from and to the
lot by way of the street," it is "subordinate to the right of the state
... to alter the grade or otherwise improve the streets for street pur-
poses." Id. at 459. See also, Bowden v. City of Jacksonville, 42 So.
394 (Fla. 1906)(existing grade of viaduct raised 18 inches above entrance
to plaintiff's building).
Subsequent cases have emphasized the necessity of providing access
to limited access highways or paying compensation. In Fleming v. State
Road Dept., 25 So. 2d 373 (Fla. 1946), for example, the plaintiff sought
a mandatory injunction to compel the defendant to "construct and maintain
several turnouts and connections between abutting ends of certain platted
and improved streets ... and the hard surfaced highway." Id. at 374.
Holding the complaint wastoo vague to state a cause of action, the court
nevertheless allowed it to be amended and stated that the public authority
may not destroy or materially abridge the abutting owner's ingress and
egress where it is shown to be reasonably necessary and where the owner's
right of access Is not affected by the condemnation or other proceedings
used to acquire the right of way. Id. at 375.
In the case of Weir v. Palm Beach County, 85 So. 2d 865 (Fla. 1956),
however, compensation was denied an owner of commercial property whose
access, except for a "circuitous route," was blocked by construction of
a retaining wall. Id. at 866.
The owner of property abutting a public way has a right
of Ingress to and egress from his property as well
as a right to enjoy the view therefrom. However,
these are rights which are subordinate to the under-
lying right of the public to enjoy the public way to
its fullest extent as well as the right of the public
to have the way improved to meet the demands of
public convenience and necessity. If the improve-
ment for the benefit of the public interferes with
the pre-existing means of ingress and egress and
view enjoyed by the individual property owner, with-
out an actual physical invasion of the land of the
property owner, then again we have a situation where
the individual right is subordinate to the public
good and any alleged damage suffered is damnum absque
injuria. This is so for the simple reason that one
who acquires property abutting a public way acquires
it subject and subordinate to the right of the public
to have the way improved to meet the public need.
Id. at 868-869.
A contrary result was reached in Anhoco v. Florida State Turnpike
Authority, 116 So. 2d 8 (Fla. 1959). The plaintiff owned an outdoor
theater which fronted on a public road. The state then constructed an
expressway, blocking the former routes of entrance and exit. Access
still existed "via secondary roads running at right angles to the high-
way in question." Id. 14. The court summarily distinguished the case
from Weir, however, stating that access had been "destroyed" rather than
"regulated" as In Weir. Id.
The case of Pinellas County v. Austin, 323 So. 2d 6 (Fla. 2d D.C.A.
1975), involved the vacation of a road by a county. The plaintiffs lived
on a five acre tract with primary access via a platted dirt road. Other
property owners whose land adjoined the road petitioned the county to
abandon it. The county did so and the plaintiffs sued, claiming that a
taking of their right of access had occurred. Although another access
route over an old wooden bridge remained, it was not suitable for use by
heavy vehicular traffic. The court therefore held that access had been
so impaired as to constitute a taking. Id. at 9.
The facts of Austin and Anhoco seem distinguishable from those of
Golden Gate Estates on several points. First, a much greater need for
access was shown in the two former cases. In one case, a drive-in
theater was served by the road and In the other a residence. Most of the
roads in Golden Gate Estates, on the other hand, lead to vacant, often
unusable swamplots. Second, there is no consideration of the expense of
maintaining access in any of the decided cases. The enormous waste of
public funds that would be necessary to maintain access roads in Golden
Gate Estates distinguishes that situation from the facts of Anhoco and
Fleming. Third, the ecological disruptions and environmental harm caused
by the present road system in Golden Gate Estates is a significant factor
that apparently was not present in the other cases.
Although the courts have been extremely protective of access rights,
they may be responsive to the distinguishing factors in Golden Gate Estates.
Clearly access could not be completely blocked without payment of compen-
sation. It may be possible, however, to block some of the roads, so long
as access is available over other more circuitous routes. The total length
of roads and thus the expense of maintaining them might thus be lessened.
It may also be possible to downgrade the quality of the roads so that access
would be available only in four wheel drive vehicles. It could then be
argued that access had not been destroyed, but had merely been made less
convenient, as necessitated by the circumstances. Since the right of
access is a property right, it should be subject to some degree of diminu-
ation when necessary to protect the public health, safety and welfare.
See, e.g., Travis v. DOT, 333 So. 2d 86 (Fla. 1st D.C.A. 1976).
Creation of a Special Road District
If the County decides to maintain the roads in Golden Gate Estates,
it may wish to establish a special road district to pay the costs of
doing so. Sections 336.61 .66, Florida Statutes (Supp. 1979) provide
for the establishment of such a district. The practical obstacles to
establishment of such a district in Golden Gate Estates, however, are
probably insurmountable. First, a petition requesting establishment
and signed by persons representing 25 per cent of the votes in the pro-
posed district must be submitted to the County Commission. Each lot
and each resident has one vote. The County Commission is then charged
with the responsibility of holding an election in the proposed district.
For the district to be created, 75 per cent of the eligible votes in the
district must be cast in favor of creation. A district created in this
manner is then empowered to issue bonds and levy special assessments to
pay for the construction and maintenance of roads. The possibility of
such an outcome seems remote at best in Golden Gate Estates.