BASIC ENERGY CORP. v. HAMILTON COUNTY

PER CURIAM.

In these consolidated appeals from non-final orders pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) and 9.130(A)(3)(C)(ii), pertaining to the exercise of eminent domain powers by the city of Jasper, the parties raise the following issue: whether the city's authority to construct jails provides a basis for the exercise of its eminent domain power when the city intends to donate the property condemned to the State of Florida for the construction of a state prison facility.1

The city of Jasper and Hamilton County joined together to form a Prison Task Force for the purpose of attracting additional prison industry to their area. Pursuant to that purpose, the city initiated eminent domain proceedings directed to appellant's property. It is clear from the record that the city intended to acquire the property and donate it to the state for construction of a state prison facility. At hearing, the Jasper city manager indicated the plan was to donate the property to the state, that a state facility was contemplated, and the city would not be involved in its operation or management. Asked if the facility contemplated was a city or county jail, he replied it would be a state correctional facility. He said the prison expansion would provide 1100 additional prison beds and 300 jobs for local citizens, and add 20% to the city's utility revenues, and that the plan was consistent with the city's economic development strategy.

The trial court found the city was authorized to acquire the property in question "by eminent domain for the public purpose of jail or correctional purposes," that "construction of a jail, prison or correctional institution and the operation and maintenance of the same is a proper public purpose" for which the city could exercise its eminent domain power, and that "the property sought to be acquired by petitioner herein is necessary for the public purpose of constructing a jail."

On appeal, appellant contends the city's purpose in exercising its eminent domain power in this case is not a valid municipal purpose. Appellee relies on its authority to construct jails pursuant to section 180.06, Florida Statutes, as the valid municipal purpose to be served. However, since it is quite clear the city does not intend to build or operate a jail,2 section 180.06 is not determinative. Further, the question is not whether a particular statute specifically permits the exercise of authority; rather, as the following excerpts demonstrate, the question is whether the exercise of authority is for a valid municipal purpose, and if so, whether there is any constitutional or statutory limitation on the exercise of that authority.

"Article VIII, section 2, Florida Constitution, expressly grants to every municipality the authority to conduct municipal government, perform municipal functions, and render municipal services. The only constitutional limitation placed on the municipalities' authority is that such powers be exercised for valid `municipal purposes.'" City of Ocala v. Nye, 608 So.2d 15 (Fla. 1992). Municipalities may exercise any power for valid municipal purposes unless expressly prohibited by law. Id.3 Thus, "whenever a municipality exercises its powers, a two-tiered question is presented. First, was the action taken for a municipal purpose? If so, was that action expressly prohibited by the constitution, general or special law, or county charter." City of Winter Park v. Montesi, 448 So.2d 1242, 1244 (Fla. 5th DCA 1984), review denied 456 So.2d 1182 (Fla. 1984).

"A municipality exists in order to provide services to its inhabitants." State v. City of Orlando, 576 So.2d 1315 (Fla. 1991). A valid municipal purpose must relate "to the conduct of municipal government, exercise of a municipal function, or provision of a municipal service." See Ormond Beach v. County of Volusia, 535 So.2d 302, 304 (Fla. 5th DCA 1988). Generally, a municipal purpose is one that is related to the health, morals, safety, protection or welfare of the municipality. Id. See also, City of Winter Park v. Montesi, 448 So.2d at 1244, citing State v. City of Jacksonville, 50 So.2d 532 (Fla. 1951).

The purpose asserted by appellee and considered by the trial court involves the provision of state correctional facilities. The donation of land for the construction of a state prison may incidentally relate to the protection of municipal inhabitants; however, this purpose is no more particular to residents of the city of Jasper than to any other inhabitants of the state. Thus, we conclude no municipal purpose has been asserted. While we do not hold that no valid municipal purpose could exist for the exercise of eminent domain authority in this case, we conclude the purpose asserted by appellee does not support the exercise.4

REVERSED and REMANDED for further proceedings consistent with this opinion.

ERVIN, JOANOS and MINER, JJ., concur.