DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     CITY OF FORT LAUDERDALE,
                              Appellant,

                                    v.

                        WALTER HINTON, et al.,
                             Appellee.

                             No. 4D18-2089

                             [July 24, 2019]

  Appeal of nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T.
Case No. 07-30358 26.

  William M. Droze of Troutman Sanders LLP, Atlanta, Georgia, and W.
Tucker Craig and Jeffery R. Lawley of Billing, Cochran, Lyles, Mauro,
Ramsey, P.A., Fort Lauderdale, for appellant.

  Michelle D. Cofiño and Reginald J. Clyne of Quintairos, Prieto, Wood &
Boyer, P.A., Miami, and Hunter Shkolnik, Louise R. Caro and Aaron R.
Modiano of Napoli Shkolnik, PLLC, Coconut Grove, for appellees.

PER CURIAM.

   The City of Fort Lauderdale (“the City”) appeals two orders denying its
motions for summary judgment. The City contends that these are
appealable nonfinal orders under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(xi) because the orders determine, as a matter of law, that
the City is not entitled to sovereign immunity. The City raises five points
on appeal. We affirm in part and dismiss in part, concluding that some
points, which do not involve immunity from suit as a matter of law, are
not reviewable under the nonfinal appeal rule.

                                 Background

   In the underlying case, five members of the Hinton family (“the
Hintons”) are suing the City for actions and omissions that followed the
City’s operation of an incinerator before 1953 at the Lincoln Park
Complex. 1 The Hintons allege the City caused or allowed ash and other
contaminants from the incinerator site to disburse throughout the
neighboring community.      The Hintons allege that the hazardous
substances physically injured them and they have lost use of their
property and suffered reduced market value.

The Lincoln Park Complex and Durrs Neighborhood

    The City-owned Lincoln Park Complex includes three principal parcels:
(1) a parcel which has been the site for a trash transfer and recycling
station since 1997; (2) a parcel which is currently the site for the City’s
One Stop Shop for municipal services, and previously was the site of an
elementary school until 2005; and (3) a grassy field that includes Lincoln
Park. A portion of the first parcel served as a wastewater treatment plant
from the 1920s until 1997, and another portion of the first parcel was the
site for a municipal waste incinerator from 1936 until 1953 and thereafter
a second wastewater treatment facility from 1971 until 1983. The area
that is now a public park in the third parcel previously held piles of
incinerator ash.

   As to the two portions of the first parcel used as a wastewater treatment
plant, the Hintons believe the wastewater treatment may have created high
levels of dioxins that were released into the air, groundwater, and soil. The
original wastewater treatment plant was demolished in 1997, and the
trash transfer station was constructed in its place.            Prior to the
construction of the trash transfer station, the City had evaluated
redevelopment of the incinerator-wastewater treatment plant site and
conducted Phase I and Phase II environmental testing of the soil and water.
Arsenic, barium, lead, and benzo(a)pyrene were detected in soil samples.
The amounts detected allegedly exceeded some residential regulatory
thresholds. At that time, the City decided not to redevelop and did not
conduct any additional environmental testing or remediate any
contamination.

   Several years later, in 2000, the City discussed potential construction
of the One Stop Shop at the former elementary school site and ordered
Phase II testing for the site. The Florida Department of Environmental
Protection (“FDEP”) conducted independent testing at the Lincoln Park
Complex. Sampling occurred between 2002 and 2003, and the park was
closed for remediation activity. In 2003, FDEP allowed the construction
to proceed, agreeing that the environmental conditions at the school

1There are approximately 113 plaintiffs with similar claims pending in the trial
court.

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property should not affect construction of the One Stop Shop. In 2003,
the City dewatered the site to install utilities for the One Stop Shop, and
contaminated ground water flooded the neighborhood. During a partial
remediation and capping of Lincoln Park, piles of contaminated soil were
left uncovered for extended periods, including when hurricanes struck the
area.

   The Hintons complain that the City did not remediate or notify
residents after the 1997 testing revealed contamination. The park was not
fenced until 2002, and the City only posted “no trespassing” signs. It did
not warn of possible contamination, and children continued to play in the
area.

    Between 2004 and 2006, FDEP collected soil samples in the residential
neighborhoods. Polycyclic aromatic hydrocarbons (“PAHs”) exceeding
State of Florida Soil Cleanup Target Levels (“SCTLs”) were detected on one
of the Hintons’ properties. One sample also showed an arsenic level above
residential regulatory thresholds. Sampling of other homeowners’ lots
detected other contaminants. Residents learned of the contamination
from the State around 2005.

    After evaluating soil sample results, the Florida Department of Health
issued a report in 2007 concluding that chronic exposure to
contamination in the surrounding neighborhoods could create elevated
health risks for sensitive subpopulations, like children with developmental
disabilities. Because contaminants were at higher concentrations below
the surface, there was some indication that incinerator ash may have been
used as fill for residential properties and digging in subsurface soils could
increase exposure risk. Some contaminants were at concentrations above
SCTLs, but the report found low to no apparent increased cancer risk from
long term exposure to the highest levels of detected contaminants. Further
soil testing was recommended. Residents with ash, glass, or metal pieces
in their soil were advised to only grow fruits and vegetables in raised beds
with clean soil. The report also concluded that based upon distribution
and measured levels, PAHs in the Durrs neighborhood did not appear to
be related to the Lincoln Park Complex. But, plaintiffs allege that FDEP
reached a different conclusion, finding that the PAHs and arsenic were
related to the complex.

   In 2008 and 2009, FDEP worked with the City to address potential
impacts on residents. FDEP recommended that surface soil at the
incinerator site be remediated to residential SCTLs, covered with backfill,
or removed. FDEP also required additional testing of the complex.


                                     3
   The Hintons allege that contamination was discharged from the
complex on multiple occasions, during: (1) operation of the incinerator site;
(2) operation of the wastewater treatment and waste transfer site; (3)
demolition of the Lincoln Park Elementary School; (4) excavation of the
school site during construction of the One Stop Shop; (5) release of ash
and contaminated water during construction and remediation; and (6)
residential development (if ash was used as fill in the Durrs neighborhood).

    The Hintons further allege that they have ingested, inhaled, and
touched contaminants from the soil and ground water through walking,
playing, and gardening in the neighborhood or consuming well water or
foods grown on their property. The Hintons’ oldest daughter died from a
rare uterine cancer in 2010, and experts disagree about whether her
cancer could have been related to the incinerator site. The Hintons also
allege that they have lost uses of their property and that home values have
been damaged by the stigma.

The Hintons’ complaint

   The Hintons brought the underlying action in 2007. The operative
complaint raises five counts. Count I seeks strict liability damages under
section 376.313, Florida Statutes, for discharge of hazardous substances
from the Lincoln Park Complex. Count II seeks damages for negligence
from failing to warn of a hazardous condition; allowing discharge of
contaminated soil; failing to remediate contamination and use reasonable
care in remediation; and other breaches that have allegedly caused the
Hintons physical injury, emotional distress, and property damage,
including lost use and diminished value. Count III asks the court, through
permanent injunction, to require the City to fund a court-supervised
medical monitoring program. Count IV seeks compensation for inverse
condemnation, alleging the discharge of contaminants onto the Hintons’
properties constitutes a taking. Count V alleges a violation of substantive
due process if the City’s actions did not constitute a taking. 2

The orders denying summary judgment

   In October 2012, the trial court denied the City’s motions for summary
judgment against Walter and Joan Hinton. In part, the court rejected the
City’s argument that, because no waiver of sovereign immunity exists for
a claim of strict liability against the government, the Hintons cannot
maintain a claim for damages under section 376.313.


2   The trial court granted summary judgment for the City on this count.

                                         4
   The City filed additional motions for summary judgment in March 2016
and July 2017. Following a hearing, the court denied these motions. In
the first order on appeal, the court concluded that sovereign immunity
does not apply to the claim for medical monitoring because this is a claim
in equity, as recognized in Petito v. A.H. Robins Co., 

, 105
(Fla. 3d DCA 1999). The court reasoned that, contrary to claims for money
damages, claims in equity are not subject to the limitations for tort liability
in section 768.28(5), Florida Statutes. The court concluded that the
Hintons’ claims for damages under section 376.313 and the negligence
claim are subject to the sovereign immunity waiver caps in section
768.28(5). Inverse condemnation claims are not subject to the caps. The
court also disagreed with the City that the Hintons’ claims constitute a
“single occurrence” for purposes of the sovereign immunity waiver caps.

    In the second order on appeal, the trial court rejected the City’s
argument that it was entitled to immunity on claims that it failed to act
following environmental testing in 1997 because this involved planning-
level decisions related to site development. The court denied summary
judgment as to the negligence claim, inverse condemnation claim, and
claim for damages under section 376.313, finding no immunity. The court
again concluded that the medical monitoring claim is not subject to the
sovereign immunity caps and that the City has no immunity to this claim.

                             Appellate Analysis

    The City raises five points on appeal: (1) the medical monitoring claim
is completely barred because there is no waiver of sovereign immunity for
a claim in equity; (2) a claim for strict liability for discharge of hazardous
substances under section 376.313 is completely barred because the
sovereign immunity waiver statute applies only to negligence and the
discharge statute does not include an express waiver of sovereign
immunity; (3) if medical monitoring is a negligence claim, then it is subject
to the per occurrence cap, and the City believes damages for all of the
Hintons’ claims combined are capped at $200,000 because there is only a
single occurrence – the operation of the incinerator; (4) the trial court erred
in ruling that there is no sovereign immunity for the inverse condemnation
claim without determining that the Hintons established a legally sufficient
takings claim; and (5) sovereign immunity bars claims related to the City’s
failure to conduct further testing or remediation because these were
planning-level functions related to site redevelopment.

   This Court has appellate jurisdiction to review a nonfinal order
determining “as a matter of law” that a party is not entitled to sovereign
immunity. Fla. R. App. P. 9.130(a)(3)(C)(xi). The rule is intended to allow

                                      5
interlocutory review where material facts are not in dispute and a trial
court has denied immunity from suit as a matter of law. Based on this
jurisdictional standard, we do not agree that all of the City’s points are
reviewable by nonfinal appeal.

The medical monitoring claim

   The trial court ruled that there is no sovereign immunity for the medical
monitoring claim because it is a claim in equity. The City does not dispute
that it is a claim in equity, but argues there is no equity exemption to
sovereign immunity. Additionally, the City argues that there is no express
statutory waiver of sovereign immunity for this claim because the claim is
not based upon a statute.

    Section 768.28 provides a limited waiver of sovereign immunity for torts
for the negligent or wrongful acts or omissions of a municipality, but “only
to the extent specified in this act.” § 768.28(1), Fla. Stat. (1999). Section
768.28 does not include a waiver for claims in equity. The City argues
alternatively that, if the claim is not barred by sovereign immunity, then
the statutory caps on damages in section 768.28(5) apply.

   The Hintons believe that the trial court correctly determined that
sovereign immunity does not apply to a claim in equity. Relying on Justice
Cantero’s concurring opinion in American Home Assurance Co. v. National
Railroad Passenger Corp., 

(Fla. 2005), the Hintons also
argue that this Court should affirm because section 768.28 affects the
State and its subdivisions differently from municipalities, and sovereign
immunity for municipalities should be strictly construed. However, we
rejected this argument in Town of Gulf Stream v. Palm Beach County, 

(Fla. 4th DCA 2016), and instead adhered to the Florida
Supreme Court’s declaration in Cauley v. City of Jacksonville, 

(Fla. 1981), “that sovereign immunity should apply equally to all
constitutionally-authorized governmental 

n.2.

   Like Judge Altenbernd in City of Treasure Island v. Provident
Management Corp., 

(Fla. 2d DCA 1999), quashed, 

481 (Fla. 2001), we have not found an equity exemption to sovereign
immunity. See 

   The Hintons point to cases for declaratory or injunctive relief against
governmental entities that proceeded without an express waiver of
sovereign immunity. But, these examples, which relate to inverse
condemnation and collection of unauthorized taxes or fees, involved
constitutional violations. Sovereign immunity does not exempt the

                                     6
government from a challenge to a constitutional violation. Dep’t of
Revenue v. Kuhnlein, 

, 721 (Fla. 1994). However, these
examples are not comparable to the Hintons’ medical monitoring claim.

   The Hintons also contend that the denial of sovereign immunity to this
claim should be affirmed where negligence is a necessary element for
medical monitoring, and because the claim is grounded in negligence, the
statute waiving sovereign immunity for tortious conduct (section 768.28)
applies and the City is thus not immune from suit as a matter of law. We
agree. Accordingly, although the trial court did not base its ruling on this
basis, we affirm the denial of sovereign immunity as to this claim. Dade
Cty. Sch. Bd. v. Radio Station WQBA, 

, 644 (Fla. 1999) (“[I]f
a trial court reaches the right result, but for the wrong reasons, it will be
upheld if there is any basis which would support the judgment in the
record.”).

The statutory caps issue

   If medical monitoring is not barred by sovereign immunity, the City
argues this Court should hold that this claim and all other negligence
claims are collectively subject to a $200,000 cap on all claims by the
Hintons for single occurrence related to operation of the incinerator. The
City contends that the Hintons cannot separate aggregate negligent acts
in order to exceed the “incident or occurrence” caps. See § 768.28(5), Fla.
Stat.

   The Hintons disagree that there is only a single occurrence. They
contend that separate and distinct acts and omissions by the City over
more than 40 years have caused contamination to spread. They also
disagree that the contamination is solely from the incinerator site and
attribute it to three properties within the complex. The Hintons believe
distinct acts of wrongdoing permit recovery for multiple incidents.

    Questions about whether the statutory caps in section 768.28(5) apply
to medical monitoring and questions about how many incidents or
occurrences the Hintons can recover for exceed our nonfinal appeal
jurisdiction. In expanding the nonfinal appeal rule, the Florida Supreme
Court intended to allow interlocutory review of an order denying immunity
from suit. See Keck v. Eminisor, 

, 364-66 (Fla. 2012)
(discussing Tucker v. Resha, 

(Fla. 1994), explaining the
rationale for allowing interlocutory review because immunity from suit
cannot be restored once lost, and directing the rules committee to submit
a proposed rule change); see also Fla. Fish & Wildlife Conservation Comm’n
v. Jeffrey, 

, 465 (Fla. 1st DCA 2015) (dismissing certiorari

                                     7
review of a sovereign immunity claim, recognizing that limited immunity
from liability is not immunity from suit, and the benefit of immunity from
liability is not lost if review has to await a final judgment). The parties
have not cited any cases where the applicability of statutory damage caps
was reviewed on nonfinal appeal.

   In a footnote in Department of Financial Services v. Barnett, 

(Fla. 4th DCA 2018), review granted, No. SC19-87, 

(Fla. Mar. 12, 2019), we commented that a ruling on the number of
occurrences for the sovereign immunity caps could be reviewed by nonfinal
appeal because this relates to sovereign immunity as a matter of law. 

n.2. But, we did not need to reach the issue because the declaratory
judgment in that case was final and the ruling was reviewed on direct
appeal. 

Secure Solutions (USA), Inc. v. Morrow, 

(Fla. 2d
DCA 2016), the Second District on nonfinal appeal reversed an order
denying a motion for summary judgment based upon limited sovereign
immunity. 

The court concluded that an individual
transporting a prisoner, who was killed by another inmate, and the
transportation company were entitled to limited sovereign immunity under
section 768.28(5) as agents of the State. 

found that there
were no questions of fact that precluded summary judgment. 

The opinion did not discuss jurisdiction.

    If the statutory caps in section 768.28(5) apply, then the City is not
immune from suit. See Gerard v. Dep’t of Transp., 

, 1172
(Fla. 1985) (holding that payment of the maximum permitted by section
768.28(5) did not preclude a negligence action to establish government
liability to support a claims bill; in other words, the Department was not
immune from suit above the cap); Pub. Health Tr. of Miami-Dade Cty. v.
Rolle, 

, 193 (Fla. 3d DCA 2011) (recognizing that “even if the
[plaintiffs] have been paid the statutory maximum permitted under the
statute, the trial court still has jurisdiction to enter a judgment against
the Trust for purposes of supporting a potential claims bill to the
legislature.”). The City still has to defend this action. Any error at trial in
misconstruing the number of occurrences and the extent of the City’s
liability can be corrected on final appeal.

The strict liability claim

    The trial court ruled on this issue in a 2012 order. Although the court
revisited the City’s arguments in the May 2018 orders, it did not change
its ruling.

                                      8
    The City mistakenly argues that this issue can be reviewed at any time
because it involves subject matter jurisdiction. The Florida Supreme
Court has noted that sovereign immunity was once treated as a question
of subject matter jurisdiction. See Dep’t of Educ. v. Roe, 

,
758 (Fla. 1996); see also Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 

, 1052 (Fla. 1st DCA 2010), approved, 

(Fla.
2012). However, recognizing that a claim of sovereign immunity was no
longer treated as jurisdictional, the supreme court rejected this as a basis
for extraordinary writ jurisdiction. Citizens Prop. 

-
55. Moreover, if the issue was reviewable at any time as the City argues,
then there would be no need to include it in the nonfinal appeal rule
providing a limited time to appeal. See Fla. R. App. P. 9.130(b).

   The trial court’s ruling in 2012 was prior to the 2014 amendment
adding a denial of sovereign immunity as a matter of law to rule 9.130. In
re Amendments to Fla. R. of App. P. 9.130, 

(Fla. 2014).
But, the City had an available remedy for interlocutory review. Prior to the
rule amendment, a nonfinal order denying a claim of immunity from suit
could be reviewed by certiorari. See, e.g., City of Freeport v. Beach Cmty.
Bank, 

, 687-88 (Fla. 1st DCA 2013); see also Citizens Prop.

n.6 (discussing situations where certiorari review
would not be available and distinguishing those from cases of absolute
immunity from suit).

  We agree with the Hintons that interlocutory review of this issue is
untimely. The City can raise this issue on final appeal if necessary.

The inverse condemnation claim

   The City contends that the Hintons cannot state a sufficient claim for
inverse condemnation because they cannot prove a permanent physical
occupation of their land that effectively deprives them of all reasonable
and beneficial use and enjoyment of the property. Citing Florida Fish &
Wildlife Conservation Commission v. Daws, 

(Fla. 1st DCA
2018), the City maintains that, unless the takings claim is facially
sufficient, it is barred by sovereign immunity. The Hintons respond that
their claim is facially sufficient and involves disputed issues of material
fact, which are not appropriate for summary judgment.

    We agree with Judge Lewis’s dissent in Daws that the legal sufficiency
of a takings claim is not reviewable by nonfinal appeal. 

(Lewis,
J., dissenting).     The City is not immune from suit for inverse
condemnation. See 

(“Sovereign immunity

                                     9
does not exempt the State from a challenge based on violation of the federal
or state constitutions, because any other rule self-evidently would make
constitutional law subservient to the State’s will. Moreover, neither the
common law nor a state statute can supersede a provision of the federal
or state constitutions.”).

    But, even if the sufficiency of a takings claim could be construed as the
denial of sovereign immunity as a matter of law, there was no error in the
trial court denying summary judgment on this claim. The Hintons have
pleaded a facially sufficient takings claim and material facts are in dispute.

   Actions for inverse condemnation include “situations where a
continuing trespass or nuisance ripens into a constitutional taking of
property.” Suarez v. City of Tampa, 

, 684 (Fla. 2d DCA
2008) (quoting State, Dep’t of Health & Rehab. Servs. v. Scott, 

, 1034 (Fla. 2d DCA 1982)). The Hintons do not have to show that all
beneficial use or all value was destroyed. See, e.g., Young v. Palm Beach
Cty., 

, 451-52 (Fla. 4th DCA 1984); Kendry v. State Rd.
Dep’t, 

, 27 (Fla. 4th DCA 1968). A taking occurs when
government action deprives a property owner of “substantially all
economically beneficial or productive use of land.” Tampa-Hillsborough
Cty. Expressway Auth. v. A.G.W.S. Corp., 

, 58 (Fla. 1994)
(emphasis added).       Contrary to the City’s argument, a temporary
deprivation can constitute a taking. 

English Evangelical
Lutheran Church v. Cty. of L.A., 

(1987)).

    The Hintons have pleaded substantial interference with the beneficial
use and enjoyment of their property and diminished property values. They
allege that they are prevented from opening their windows, growing their
own food, gardening, and other outdoor activities. At the summary
judgment hearing, counsel pointed out that FDEP told residents not to let
their children play in the yards. Potential buyers and mortgage companies
have to be told about the contamination. The City responded that the best
practices listed on a gardening card issued by the Florida Department of
Health was merely a protective measure and did not confirm a problem.
The City suggested that because only one soil sample from the Hintons’
property showed a problem with arsenic, this did not show a problem with
the entire property. Whether contamination found on different properties
came from the City properties and whether acts or omissions by the City
amount to a temporary or partial taking involve disputed questions of fact.

    We conclude that the sufficiency of the takings claim is not reviewable
by nonfinal appeal and dismiss this issue. But, even if jurisdiction could
lie to review the issue, the trial court properly denied summary judgment.

                                     10
The City’s discretionary acts arguments

   In its final point, the City argues that any claims for damages based
upon the City’s failure to remediate or failure to notify residents of the
1997 environmental testing results are barred by sovereign immunity
because these are planning-level functions related to site development.

      [A] “discretionary,” planning-level function involves “an
      exercise of executive or legislative power such that a court’s
      intervention by way of tort law would inappropriately entangle
      the court in fundamental questions of policy and planning.”
      Mosby v. Harrell, 

, 328 (Fla. 1st DCA 2005). An
      “operational” function, on the other hand, “is one not
      necessary to or inherent in policy or planning, that merely
      reflects a secondary decision as to how those policies or plans
      will be implemented.” Dep’t of Health & Rehabilitative Servs.
      v. B.J.M., 

, 911 n. 4 (Fla.1995); Mosby, 

at 328. Operational decisions are not immune.

City of 

. Decisions related to upgrades or
improvements are a planning-level function for which there is no tort
liability. Kaweblum ex rel. Kaweblum v. Thornhill Estates Homeowners
Ass’n, 

, 1016 (Fla. 4th DCA 2001).

   Here, the City argues that it had no duty to test property that it never
intended to develop. In 1997, it evaluated redevelopment of the incinerator
and wastewater treatment site. It directed its engineers to perform Phase
I and II environmental testing. One soil sample detected arsenic. The
property was fenced to restrict access, which the Hintons’ expert agreed is
an acceptable control. The City decided not to redevelop at that time and
did not revisit possible redevelopment until 2000.

   The City contends that it has complete immunity for any failure to act
beginning in 1997 because the decision not to develop at that time was
discretionary and the decision not to conduct further testing was
discretionary where there was no proof of migration of harmful
contaminants. The City does not explain how this argument relates to
each of the Hintons’ claims. The City simply states that whether to
redevelop the Lincoln Park site was a planning-level function and the
Hintons have not identified any actions that could give rise to liability.

   The Hintons answer that their claims are based upon the City’s failure
to contain the contamination, remediate the site, and notify residents of

                                    11
contaminated conditions. Like any private property owner, the City had a
duty to maintain the property in a reasonably safe condition. See, e.g.,
Avallone v. Bd. of Cty. Comm’rs of Citrus Cty., 

, 1005 (Fla.
1986). Citing cases involving a duty to warn of a dangerous condition, the
Hintons argue that at the very least there is a factual question about the
City’s responsibility for contamination on the Hintons’ properties. The
Hintons maintain that questions about the City’s failure to warn and about
liability for contamination spreading from City property are issues for a
jury.

   The City has not shown that any particular claim or specific allegations
of negligence are completely barred as planning-level functions. The City
suggested that it took appropriate action for a vacant industrial site by
fencing it. But, the disputed area includes the former elementary school
and a public park. Whether the results of the 1997 testing gave rise to a
duty to test further, to warn of a hazardous condition, or to remediate or
secure contamination involve disputed questions of fact. The City has not
shown that it is entitled to immunity as a matter of law for planning-level
decisions.

                                Conclusion

   We affirm the denial of summary judgment on the medical monitoring
claim and the trial court’s ruling that the City is not entitled to summary
judgment on its claim that it was engaged in planning-level functions. We
dismiss for lack of jurisdiction questions about whether the damage caps
in section 768.28(5) apply and as to how many incidents or occurrences
the Hintons may be entitled to recover. We dismiss as untimely the City’s
challenge to the section 376.313 claim. Finally, we dismiss for lack of
jurisdiction the challenge to the sufficiency of the takings claim.

   Affirmed in part; dismissed in part.

CONNER, FORST and KLINGENSMITH, JJ., concur.

                            *        *        *

   Not final until disposition of timely filed motion for rehearing.




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