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House Bill 0913

Florida House of Representatives - 1997 HB 913 By Representative Sublette 1 A bill to be entitled 2 An act relating to eminent domain; amending s. 3 73.0511, F.S.; providing for a written offer of 4 settlement as part of the prelitigation notice; 5 amending s. 73.071, F.S.; providing that the 6 jury must determine full compensation in 7 eminent domain action; providing for 8 consideration of business damages; providing 9 for determining compensation in inverse 10 condemnation proceedings; providing for 11 consideration of mitigation by a property 12 owner; providing for construction of the term 13 "property"; creating s. 74.023, F.S.; providing 14 for presuit negotiations; creating s. 74.043, 15 F.S.; providing for mandatory nonbinding 16 mediation prior to the order of taking hearing; 17 amending s. 337.271, F.S.; providing for the 18 simplification of the acquisition negotiation 19 process; providing an effective date. 20 21 Be It Enacted by the Legislature of the State of Florida: 22 23 Section 1. Section 73.0511, Florida Statutes, is 24 amended to read: 25 73.0511 Prelitigation notice.--Prior to instituting 26 litigation, the condemning authority shall make a written 27 offer of settlement to defendants for payment of full 28 compensation pursuant to s. 73.071. The offer shall name the 29 parties to whom it is made, briefly summarize any relevant 30 conditions, identify all interested parties who may have an 31 apportionable interest in the compensation, and shall state 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 that the offer shall be deemed rejected unless accepted in 2 writing within 30 days after receipt. At the time the offer 3 is made the condemning authority shall identify and make 4 available to the landowner the appraisal information and 5 construction plans, if any, upon which the offer is based. 6 The condemning authority shall notify the fee owners of 7 statutory rights under s. 73.091. 8 Section 2. Section 73.071, Florida Statutes, is 9 amended to read: 10 73.071 Jury trial; full compensation; severance 11 damages; business damages.-- 12 (1) When the action is at issue, and only upon notice 13 and hearing to set the cause for trial, the court shall 14 impanel a jury of 12 persons as soon as practical considering 15 the reasonable necessities of the court and of the parties, 16 and giving preference to the trial of eminent domain cases 17 over other civil actions, and submit the issue of full 18 compensation to them for determination, which issue shall be 19 tried in the same manner as other issues of fact are tried in 20 the circuit courts. The trial of eminent domain cases shall be 21 given priority preference over other civil actions. 22 (2) The amount of such full compensation shall be 23 determined as of the date of trial, or the date upon which 24 title passes, whichever shall occur first. Full compensation 25 based upon a claim of inverse condemnation shall be determined 26 by the jury as of the date of appropriation. 27 (3) The jury shall determine solely the amount of full 28 compensation to be paid, which compensation shall include: 29 (a) The value of the property sought to be 30 appropriated by direct or inverse condemnation.; 31 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 (b) Where less than the entire property is sought to 2 be appropriated, any damages to remaining property the 3 remainder caused by that appropriation the taking, including 4 any damage resulting from the project that necessitated or 5 caused the property to be appropriated., when the action is by 6 the Department of Transportation, county, municipality, board, 7 district or other public body for the condemnation of a 8 right-of-way, and the effect of the taking of the property 9 involved may damage or destroy an established business of more 10 than 5 years' standing, owned by the party whose lands are 11 being so taken, located upon adjoining lands owned or held by 12 such party, the probable damages to such business which the 13 denial of the use of the property so taken may reasonably 14 cause; any person claiming the right to recover such special 15 damages shall set forth in his written defenses the nature and 16 extent of such damages; and 17 (c) Any damage to an established business of 3 years' 18 standing, operated at the location from which property has 19 been appropriated by a governmental entity through direct or 20 inverse condemnation, including any damage resulting from the 21 project that necessitated or caused the property to be 22 appropriated. Such damages shall include, but are not limited 23 to, those suffered by agricultural operations as defined by s. 24 570.02(1), as a result of the appropriation of agricultural 25 property. Evidence of a claimant's ability to mitigate 26 business damage onsite or by relocating to another comparable 27 location in the same market trade area may be considered. Any 28 increased costs of operation and reasonable expenses of 29 mitigation resulting from the onsite mitigation plan or from 30 the relocation of the business to another comparable location 31 in the same market trade area, together with moving costs and 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 downtime losses, must be included when determining business 2 damages payable to the claimant. 3 (d)(c) Where the appropriation is of property upon 4 which a mobile home, other than a travel trailer as defined in 5 s. 320.01, is located, whether or not the owner of the mobile 6 home is an owner or lessee of the property involved, and the 7 effect of the appropriation taking of the property involved 8 requires the relocation of such mobile home, the reasonable 9 removal or relocation expenses incurred by such mobile home 10 owner, not to exceed the replacement value of such mobile 11 home. The compensation paid to a mobile home owner under this 12 paragraph shall preclude an award to a mobile home park owner 13 for such expenses of removal or relocation. Any mobile home 14 owner claiming the right to such removal or relocation 15 expenses shall set forth in his written defenses the nature 16 and extent of such expenses. This paragraph shall not apply 17 to any governmental authority exercising its power of eminent 18 domain when reasonable removal or relocation expenses must be 19 paid to mobile home owners under other provisions of law or 20 agency rule applicable to such exercise of power. 21 22 For the purpose of determining compensation under paragraphs 23 (a), (b), and (c), the term "property" shall be broadly 24 construed and includes, but shall not be limited to, land, 25 improvements, farm operations, and rights of access to air, 26 light, and view. 27 (4) When the action is by the Department of 28 Transportation, county, municipality, board, district, or 29 other public body for the condemnation of a road, canal, 30 levee, or water control facility right-of-way, The 31 enhancement, if any, in value of the remaining adjoining 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 property of the defendant property owner by reason of the 2 project construction or improvement made or contemplated or 3 constructed by the petitioner shall be offset against the 4 damage, if any, resulting to such remaining adjoining property 5 of the defendant property owner by reason of the project 6 contemplated or constructed construction or improvement. 7 However, such enhancement in the value shall not be offset 8 against the value of the property appropriated, and if such 9 enhancement in value shall exceed the damage, if any, to the 10 remaining adjoining property, there shall be no recovery over 11 against such property owner for such excess. 12 (5) Any increase or decrease in the value of any 13 property to be acquired which occurs after the scope of the 14 project for which the property is being acquired is known in 15 the market, and which is solely a result of the knowledge of 16 the project location, shall not be considered in arriving at 17 the value of the property acquired. For the purpose of this 18 section, the scope of the project for which the property is 19 being acquired shall be presumed to be known in the market on 20 or after the condemnor executes a resolution which depicts the 21 location of the project. 22 (6) The jury shall view the subject property upon 23 demand by any party or by order of the court. 24 (7) If the jury cannot agree on a verdict the court 25 shall discharge them, impanel a new jury, and proceed with the 26 trial. 27 Section 3. Section 74.023, Florida Statutes, is 28 created to read: 29 74.023 Presuit negotiations.--The condemning authority 30 shall negotiate in good faith with the owner of a parcel to be 31 acquired and shall attempt to arrive at an agreed amount of 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 compensation to be paid for the parcel. If a settlement is 2 reached before litigation, the condemning authority shall 3 promptly pay a reasonable appraisal fee, reasonable 4 accountant's fee, reasonable attorney's fee, and other 5 reasonable costs. The property owner may file a complaint in 6 the circuit court in the county in which the property is 7 located to recover reasonable costs. 8 Section 4. Section 74.043, Florida Statutes, is 9 created to read: 10 74.043 Mandatory mediation.--Upon motion of any party, 11 the court shall order that the case be submitted to nonbinding 12 mediation pursuant to s. 44.102 prior to conducting the order 13 of taking hearing pursuant to s. 74.051. 14 Section 5. Section 337.271, Florida Statutes, is 15 amended to read: 16 337.271 Negotiations for acquisitions.-- 17 (1) The department shall negotiate in good faith with 18 the owner of a parcel to be acquired and shall attempt to 19 arrive at an agreed amount of compensation to be paid for the 20 parcel and at the inception of negotiations shall provide the 21 owners with right-of-way maps and notify such owners of 22 statutory rights under ss. 73.091 and 73.092. 23 (2) At the inception of negotiation for acquisition, 24 the department shall notify the fee owner of the following: 25 (a) That all or a portion of his or her property is 26 necessary for a transportation facility or transportation 27 corridor; 28 (b) The nature of the project for which the parcel is 29 deemed necessary, the project number, and the parcel 30 designation of the property to be acquired; 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 (c) The district office of the department from which 2 the owner may obtain right-of-way maps reflecting the proposed 3 taking; 4 (d) The fee owner's statutory rights under ss. 73.091 5 and 73.092; and 6 (e) The fee owner's rights and responsibilities under 7 subsections (3), (4), (5), and (6). 8 (3) The notice shall be sent by certified mail, return 9 receipt requested, to the fee owner's last known address 10 listed on the county ad valorem tax roll. Notice to one owner 11 constitutes notice to all owners on multiple-ownership 12 property. The return of the notice as undeliverable by the 13 postal authorities constitutes compliance with this provision. 14 The department is not required to give notice to a person who 15 acquires title to the property subsequent to the notice 16 required by this section. 17 (4) The fee owner may, within 120 days after receipt 18 of the notice required by subsection (2) or at a later date 19 specified by the department, submit a complete appraisal 20 report relating to the parcel to be acquired. The fee owner 21 may waive his or her right to the 120 days to obtain an 22 appraisal by providing the department with written notice of 23 such waiver. If a report is submitted, it shall contain all 24 data and information upon which the appraiser's conclusions 25 are based and shall be prepared by a state-certified real 26 estate appraiser as defined in chapter 475 and who has been 27 qualified by the department. A list of those state-certified 28 real estate appraisers, as defined in chapter 475, currently 29 qualified by the department shall be attached to the letter 30 submitted to the fee owner. On multiple-ownership property, 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 the fee owner is collectively entitled to only one appraisal 2 report. 3 (5) If the business owner intends to claim business 4 damages pursuant to s. 73.071(3)(b), he or she may, within 120 5 days after receipt of the notice required by subsection (2) or 6 at a later time specified by the department, submit to the 7 department a complete estimate of business damages to the 8 property. The fee owner may waive his or her right to the 120 9 days to obtain an estimate of business damages by providing 10 the department with written notice of such waiver. If an 11 estimate is submitted, it shall explain the nature and extent 12 of such damages and shall be prepared by either the owner or a 13 certified public accountant. If the business owner elects to 14 submit an estimate of business damages to the department, he 15 or she shall also permit the department to copy and examine, 16 at the owner's convenience, such of the owner's business 17 records as the department determines to be necessary for it to 18 arrive at an estimate of business damages. 19 (6) Upon submission of an invoice which complies with 20 the requirements of this subsection, the department shall pay 21 all reasonable costs, including reasonable attorney's fees, 22 incurred on behalf of a property owner who proceeds to 23 prelitigation negotiation settlement pursuant to the 24 provisions of this section. The attorney's fees shall be based 25 upon the criteria of s. 73.092. The invoice shall include 26 complete time records and a detailed statement of services 27 performed and time spent performing such services. Reasonable 28 appraisal or accountant fees as authorized by this section 29 shall not exceed the general or customary hourly rate for 30 appraisal or accounting fees in the community. If the parties 31 cannot agree on the amount of costs and attorney's fees to be 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 paid by the department, the property owner may file a 2 complaint in the circuit court in the county where the 3 property is located to recover reasonable attorney's fees and 4 costs. 5 (7) Within 30 days after receipt of the fee owner's 6 appraisal report and the estimate of business damages if 7 submitted, the department shall submit to the owner all 8 appraisal reports prepared for the department which relate to 9 the owner's parcel and any estimate of business damages 10 prepared. 11 (8) After receipt of the appraisal report prepared for 12 the fee owner and the estimate of business damages if 13 submitted, the department shall make a written offer of 14 purchase to the fee owner and business owner, if any, which 15 includes the value of the land and improvements taken and any 16 business or severance damages. 17 (9) After exchanging appraisal reports and business 18 damage reports, the parties may jointly agree to submit the 19 compensation and business damage claims to nonbinding 20 mediation. The mediation may be held after the eminent domain 21 action is filed, if the department must file the action to 22 meet construction schedules. The parties shall agree upon a 23 mediator certified pursuant to s. 44.102. 24 (10) If the department agrees to mediation, the fee 25 owner or business owner may submit to the department an 26 invoice, which complies with this section, for payment for the 27 appraisal reports, business damage reports, and other 28 reasonable costs. Upon receipt of such invoice, the 29 department shall promptly pay a reasonable appraisal fee, 30 reasonable accountant's fee, and other reasonable costs. If 31 the parties cannot agree on the amount of costs to be paid by 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 913 534-180-97 1 the department, the property owner may file a complaint in the 2 circuit court in the county in which the property is located 3 to recover reasonable costs. 4 (2)(11) Evidence of negotiations, or evidence of any 5 written or oral statements used in mediation, conducted by the 6 parties pursuant to this section is not admissible in any 7 subsequent proceeding. 8 Section 6. This act shall take effect July 1, 1997. 9 10 ***************************************** 11 HOUSE SUMMARY 12 Provides additional procedures with respect to 13 prelitigation notice. Provides for a simplified acquisition negotiation process. Provides for mandatory 14 mediation prior to hearing on the order of taking. Provides for the jury in an eminent domain proceeding to 15 award full compensation both for direct and inverse condemnation appropriations of property. Provides for 16 consideration of mitigation, and of the expenses of mitigation, by a business owner. Decreases from 5 years 17 to 3 years the length of time a business must have been established before business damages are considered. 18 Directs that the term "property" be broadly construed in determining compensation. 19 20 21 22 23 24 25 26 27 28 29 30 31 10