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MEMO TO: LMB J .q
FROM: AFD -6..2/ '
DATE: July 26, 1973 ......
There are a few cases that I think bear on the question of
whether an allegation of a gross abuse of discretion will shift
the burden of proof to the condemning authority. It is my
position that the burden of proof is on the land owner, rather
than the acquiring authority. This opinion is based on the
City of Miami Beach v. Cummings, 266 So2d 122.
This case stands for the proposition that the power of
eminent domain is an attribute of the sovereignty of
the State and is absolute except as restrained by the
Constitution. It sets out the fundamental rule, strongly
grounded upon public policy, that where a public body
is exercising discretionary powers within the orbit of
laws effecting them, such action is presumed correct.
Jones v. City of Tallahassee, 1st DCA 1972, 266 So2d 382.
This case indicates that a public body that is invested
by law with the power of eminent domain, possesses a
broad discretion in determining the necessity for
acquiring property needed in order to serve a public
purpose. Decisions reached in the exercise of such
discretion should not be disturbed in the absence of
proof that the acquiring authority acted in bad faith
or was guilty of oppression or gross abuse of power.
There must be strong and convincing evidence of the
most conclusive character to upset the findings of
the officials charged with responsibility in such
Wright v. Dade County, DCA 1968, 216 So2d 494.
The landowner contested the necessity of the amount of
the ;land taken for the expansion of the County Hospital.
The Court indicated that in the absence of a strong showing
of bad faith or fraud, the Court should not upset the
findings of the condemning authority unless there is
"strong and convincing evidence of the most conclusive
These cases indicate to me that the burden of proof is on
the landowner to prove a gross abuse of discretion.
MEMO TO: LMB
DATE: July 26, 1973
RE: Hillsborough County v. Sapp
I have read the second district court of opinion contained in
262 So2d 256, and the Supreme Court opinion, which is unreported,
reported as Case No. 42,501, filed July 11, 1973.
The District Court held that the taking of the particular pro-
perties constituted a gross abuse of discretion because the
road was not put in the unoccupied land area.
The Supreme Court reversed the same})oS '
Once a condemning authority decides that a taking
is necessary, selects one of the alternatives
opened to it, and applies to the Court for an
approval of the taking, the role of the Court
is limited to assuring that the condemnor
acted in good faith, did not exceed its autho-
rity, and did not abuse its discretion. When
the trial court approves the determination of
reasonable necessity and finds no abuse of
discretion, a reviewing court is limited to
deciding whether or not there was competent
and substantial evidence to support the
decision of the trial court. The Court also
talked about the fact that the Second District
Court of Appeals only considered that the road
could have been located in another location. It
said that many factors probably influenced the
condemning authority and would weigh on its
decision regarding where to route the road. They
mentioned such things as costs, environmental
factors, long range planning, engineering problems
created by terrain, and in this case safety con-
siderations when designing a highway next to a
As pointed out in Judge McNelty's dissent in the Second District
Court's opinion, and mentioned in the Supreme Court's opinion, any
discretion involved isvested in the condemnor and the trial judge's
function is to determine as a fact the condemnor's discretion