Senate Bill 0070

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    Florida Senate - 1999                                    SB 70

    By Senator Grant





    13-105-99

  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 actions; providing for

  8         consideration of business damages; providing

  9         for the determination of compensation in

10         inverse condemnation proceedings; providing for

11         consideration of mitigation by a property

12         owner; providing for construction of the term

13         "property"; creating s. 74.0205, F.S.;

14         providing for presuit negotiations; creating s.

15         74.042, F.S.; providing for mandatory

16         nonbinding mediation prior to the order of

17         taking hearing; amending s. 337.271, F.S.;

18         providing for the simplification of the

19         acquisition negotiation process; providing an

20         effective date.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  Section 73.0511, Florida Statutes, is

25  amended to read:

26         73.0511  Prelitigation notice.--At least 60 days before

27  Prior to instituting litigation, the condemning authority

28  shall make a written offer of settlement to each defendant for

29  payment of full compensation under s. 73.071. The offer must

30  name the defendant to whom it is made, briefly summarize any

31  relevant conditions, identify all interested parties who might

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    Florida Senate - 1999                                    SB 70
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  1  have an apportionable interest in the compensation, and state

  2  that the offer is considered to have been rejected unless

  3  accepted in writing within 30 days after receipt. At the time

  4  the offer is made, the condemning authority shall identify and

  5  make available to each defendant the appraisal information and

  6  construction plans, if any, upon which the offer is based. The

  7  condemning authority shall also notify each defendant the fee

  8  owners of all statutory rights under s. 73.091.

  9         Section 2.  Section 73.071, Florida Statutes, is

10  amended to read:

11         73.071  Jury trial; full compensation; severance

12  damages; business damages.--

13         (1)  When the action is at issue, and only upon notice

14  and hearing to set the cause for trial, the court shall

15  impanel a jury of 12 persons as soon as practical considering

16  the reasonable necessities of the court and of the parties,

17  and giving preference to the trial of eminent domain cases

18  over other civil actions, and submit the issue of full

19  compensation to them for determination, which issue shall be

20  tried in the same manner as other issues of fact are tried in

21  the circuit courts. The court shall give priority to the trial

22  of eminent domain cases over other civil actions.

23         (2)  The amount of such full compensation shall be

24  determined as of the date of trial, or the date upon which

25  title passes, whichever shall occur first. The jury shall

26  determine full compensation based upon a claim of inverse

27  condemnation as of the date of appropriation.

28         (3)  The jury shall determine solely the amount of full

29  compensation to be paid, which compensation shall include:

30         (a)  The value of the property sought to be

31  appropriated by direct or inverse condemnation;

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  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 that the property be appropriated; when the action is

  6  by the Department of Transportation, county, municipality,

  7  board, 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 or her written defenses the

16  nature and 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 that the property be

22  appropriated. Such damages shall include, but are not limited

23  to, those suffered by agricultural operations, as defined in

24  s. 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

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  1  downtime losses, must be included when determining business

  2  damages payable to the claimant; and

  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 or her written defenses the

16  nature and extent of such expenses.  This paragraph shall not

17  apply to any governmental authority exercising its power of

18  eminent domain when reasonable removal or relocation expenses

19  must be paid to mobile home owners under other provisions of

20  law or 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" is to be broadly

24  construed and includes, but is not limited to, land,

25  improvements, farm operations, and rights of access, 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

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  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 74.0205, Florida Statutes, is

28  created to read:

29         74.0205  Presuit negotiations.--The condemning

30  authority shall negotiate in good faith with the owner of a

31  parcel to be acquired and shall attempt to arrive at an

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  1  agreed-upon amount of compensation to be paid for the parcel.

  2  If a settlement is reached before litigation, the condemning

  3  authority shall promptly pay a reasonable appraisal fee,

  4  reasonable accountant's fee, reasonable attorney's fee, and

  5  other reasonable costs. The property owner may file a

  6  complaint in the circuit court in the county in which the

  7  property is located to recover reasonable costs.

  8         Section 4.  Section 74.042, Florida Statutes, is

  9  created to read:

10         74.042  Mandatory mediation.--Upon motion of any party,

11  the court shall order that the case be submitted to nonbinding

12  mediation under s. 44.102 prior to conducting the order of

13  taking hearing under 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 the negotiations shall provide

21  the owner with the right-of-way maps and notify the owner of

22  statutory rights under s. 73.091 and s. 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

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  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

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  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

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  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

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  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, 1999.

  9

10            *****************************************

11                          SENATE SUMMARY

12    In eminent domain proceedings provides for:  a simplified
      acquisition negotiation process; mandatory mediation
13    prior to hearing on the order of taking; the jury to
      award full compensation both for direct and inverse
14    condemnation appropriations of property; and
      consideration of mitigation, and of the expenses of
15    mitigation, by a business owner. Decreases from 5 years
      to 3 years the length of time a business must have been
16    established before business damages are considered.
      Directs that the term "property" be broadly construed in
17    determining compensation.

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