Regional Wastewater Treatment Plant: A Duda & Sons, Inc. Cocoa Ranch (Brevard County, FL)
Mr. Brigham, while a partner in his predecessor firm Brigham Moore, LLP, represented A. Duda & Sons, Inc. with respect to an eminent domain taking by Brevard County for the expansion of its regional wastewater treatment plant. Brevard County sought to take a portion of A. Duda & Sons, Inc.’s Cocoa Ranch which is adjacent to A. Duda & Son’s master planned community known as Vierra. The taking was an approximate 240- acre tract of land which A. Duda & Sons, Inc. used for its agricultural sod farm operations. Years before, A. Duda & Sons, Inc. granted Brevard County a flowage easement right for the purpose of allowing the gray water spraying; the consideration for the easement was nominal as A. Duda & Sons, Inc. was seeking to assist the county in its wastewater treatment programs. A. Duda & Sons, Inc. and the county had typically relocated such easements as land transitioned from agricultural uses to development. Nevertheless, because Brevard County was going to put the taken property to use as an effluent treatment wetland, the initial offer of $650,000 was substantial discounted purportedly because of the “pre-existing easement.”
In addition to the dispute over valuation, the design of the effluent treatment wetland also called for its outfall into the adjacent canal system which was also privately owned by A. Duda & Sons, Inc. The proposed use of the property taken, therefore, lacked any binding legal restriction on the extent to which Brevard County’s regional wastewater treatment plant could discharge residual pollutants through its effluent treatment wetland with outfall into A. Duda & Sons, Inc.’s canal. A. Duda & Sons, Inc. relied on its canal system to also discharge pollutants from its agricultural sod operations. At the time of taking, both the state and federal governments were anticipated to commence a regulatory system known as PLRG’s (Pollutant Loading Reduction Goals). If the public use associated with the regional wastewater treatment plant consumed the capacity of the canal to discharge pollutants within new regulatory limits, it would like be the private use associated with A. Duda & Sons, Inc.’s agricultural operations which would be restricted. It was this issue that resulted in an appeal wherein the 5th DCA of Florida issued an opinion in a case styled Brevard Co. v. A. Duda & Sons, Inc., 742 So. 2d 476 (Fla. 5th DCA, 1999). The case stands for the principle that if a condemnor does not bind itself, either with greater specificity in its construction plans or language describing the easement taken, an owner should assume “the worst-case scenario” in so far as the use of the property taken to estimate severance damages.
On remand, A. Duda & Sons, Inc. claimed that, if Brevard County’s taking of 240 acres was not accompanied by an easement clearly defining limits to its use of A. Duda & Sons, Inc.’s canal for any outfall discharging pollutants, severance damages could be as much as $6.5 million. Prior to a jury trial on valuation, the parties settled the case with Brevard County executing publically recorded easements concerning their use of A. Duda & Sons, Inc.’s canal and land value for the 240-acre tract without substantial discount for any pre-existing easement at $2,591,218.