HB 1567CS

CHAMBER ACTION



1The Justice Council recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to eminent domain; creating s. 73.013,
7F.S.; restricting certain transfers of property taken by
8eminent domain to certain natural persons or private
9entities; amending s. 163.335, F.S.; providing legislative
10findings and declarations; amending s. 163.355, F.S.;
11requiring disclosure of eminent domain authority in
12resolutions finding slum or blight conditions; providing
13for notice to property owners and business owners or
14lessees and requirements therefor; providing for hearings
15and advertising requirements therefor; amending s.
16163.358, F.S.; providing that the power of eminent domain
17does not vest in a community redevelopment agency but
18rather with the governing body of a county or
19municipality; amending s. 163.360, F.S.; requiring
20disclosure of eminent domain authority in community
21redevelopment plans; amending s. 163.370, F.S.; revising
22powers of community redevelopment agencies with respect to
23the acquisition of real property; amending s. 163.375,
24F.S.; revising eminent domain authority and procedures,
25including notice, hearings, and challenge; amending ss.
26127.01 and 127.02, F.S.; requiring county compliance with
27eminent domain limitations; amending ss. 166.401 and
28166.411, F.S.; requiring municipal compliance with eminent
29domain limitations; providing application; providing an
30effective date.
31
32Be It Enacted by the Legislature of the State of Florida:
33
34     Section 1.  Section 73.013, Florida Statutes, is created to
35read:
36     73.013  Conveyance of property taken by eminent domain.--
37     (1)  Notwithstanding any other provision of law, including
38any charter provision, ordinance, statute, or special law, if
39the state, any political subdivision as defined in s. 1.01(8),
40or any other entity to which the power of eminent domain is
41delegated files a petition of taking on or after July 1, 2006,
42regarding a parcel of real property in this state, ownership or
43control of property acquired pursuant to such petition may not
44be conveyed by the condemning authority or any other entity to a
45natural person or private entity, except that ownership or
46control of property acquired pursuant to such petition may be
47conveyed to:
48     (a)  A natural person or private entity for use in
49providing common carrier services or systems;
50     (b)  A natural person or private entity for use as a road
51or other right-of-way or means open to the public for
52transportation, whether at no charge or by toll;
53     (c)  A natural person or private entity that is a public or
54private utility for use in providing electricity services or
55systems, natural or manufactured gas services or systems, water
56and wastewater services or systems, stormwater or runoff
57services or systems, sewer services or systems, pipeline
58facilities, telephone services or systems, or similar services
59or systems;
60     (d)  A natural person or private entity for use in
61providing public infrastructure;
62     (e)  A natural person or private entity that occupies,
63pursuant to a lease, an incidental part of a public property or
64a public facility for the purpose of providing goods or services
65to the public;
66     (f)  A natural person or private entity, after public
67notice and competitive bidding unless otherwise provided by
68general law, if the property was owned and controlled by the
69condemning authority or a governmental entity for at least 5
70years after the condemning authority acquired title to the
71property; or
72     (g)  A natural person or private entity in accordance with
73subsection (2).
74     (2)  If ownership of property is conveyed to a natural
75person or private entity pursuant to any of paragraphs (1)(a)-
76(e), and that natural person or private entity retains ownership
77and control of the property for at least 5 years after acquiring
78title, the property may subsequently be transferred, after
79public notice and competitive bidding unless otherwise provided
80by general law, to another natural person or private entity
81without restriction.
82     Section 2.  Subsection (3) of section 163.335, Florida
83Statutes, is amended, and subsection (7) is added to that
84section, to read:
85     163.335  Findings and declarations of necessity.--
86     (3)  It is further found and declared that the powers
87conferred by this part are for public uses and purposes for
88which public money may be expended, the police power exercised,
89and the power of eminent domain exercised subject to the
90limitations in s. 163.375 and the power of eminent domain and
91police power exercised, and the necessity in the public interest
92for the provisions herein enacted is hereby declared as a matter
93of legislative determination.
94     (7)  It is further found that the prevention or elimination
95of a "slum area" or "blighted area" as defined in this part and
96the preservation or enhancement of the tax base are not public
97uses or purposes for which private property may be taken by
98eminent domain.
99     Section 3.  Section 163.355, Florida Statutes, is amended
100to read:
101     163.355  Finding of necessity by county or municipality.--
102     (1)  No county or municipality shall exercise the community
103redevelopment authority conferred by this part until after the
104governing body has adopted a resolution, supported by data and
105analysis, which makes a legislative finding that the conditions
106in the area meet the criteria described in s. 163.340(7) or (8).
107The resolution must state that:
108     (a)(1)  One or more slum or blighted areas, or one or more
109areas in which there is a shortage of housing affordable to
110residents of low or moderate income, including the elderly,
111exist in such county or municipality; and
112     (b)(2)  The rehabilitation, conservation, or redevelopment,
113or a combination thereof, of such area or areas, including, if
114appropriate, the development of housing which residents of low
115or moderate income, including the elderly, can afford, is
116necessary in the interest of the public health, safety, morals,
117or welfare of the residents of such county or municipality.
118     (2)  A resolution finding slum or blight conditions must
119indicate that property within the community redevelopment area
120may be subject to taking by eminent domain pursuant to s.
121163.375. In the alternative, the county or municipality may
122explicitly state in the resolution that the power of eminent
123domain provided under s. 163.375 will not be exercised by the
124county or municipality within the community redevelopment area.
125A county or municipality is not required to provide notice in
126accordance with subsections (3) and (4) if the resolution
127finding slum or blight conditions, as proposed and adopted by
128the county or municipality, expressly declares that the power of
129eminent domain provided under s. 163.375 will not be exercised
130by the county or municipality within the community redevelopment
131area.
132     (3)  At least 30 days prior to the first public hearing at
133which a proposed resolution finding slum or blight conditions
134will be considered by a county or municipality, actual notice of
135the public hearing must be mailed via first class mail to each
136real property owner whose property may be included within the
137community redevelopment area and to each business owner,
138including a lessee, who operates a business located on property
139that may be included within the community redevelopment area.
140     (a)  Notice must be sent to each owner of real property
141that may be included within the community redevelopment area at
142the owner's last known address as listed on the county ad
143valorem tax roll. Alternatively, the notice may be personally
144delivered to a property owner. If there is more than one owner
145of a property, notice to one owner constitutes notice to all
146owners of the property. The return of the notice as
147undeliverable by the postal authorities constitutes compliance
148with this subsection. The condemning authority is not required
149to give notice to a person who acquires title to property after
150the notice required by this subsection has been given.
151     (b)  Notice must be sent to the address of the registered
152agent for the business located on the property or, if no agent
153is registered, by certified mail or personal delivery to the
154address of the business located on the property. Notice to one
155owner of a multiple ownership business constitutes notice to all
156owners of that business. The return of the notice as
157undeliverable by the postal authorities constitutes compliance
158with this subsection. The condemning authority is not required
159to give notice to a person who acquires an interest in a
160business after the notice required by this subsection has been
161given.
162     (c)  At a minimum, the mailed notice required by paragraphs
163(a) and (b) must:
164     1.  Generally explain the purpose, effect, and substance of
165the proposed resolution;
166     2.  Indicate that private property within the proposed
167redevelopment area may be subject to taking by eminent domain if
168the current condition of the property poses an existing threat
169to the public health or public safety that is likely to continue
170absent the exercise of eminent domain;
171     3.  Indicate that private-to-private transfers of property
172may occur;
173     4.  Contain a geographic location map that clearly
174indicates the area covered by the resolution, including major
175street names as a means of identification of the general area;
176     5.  Provide the dates, times, and locations of future
177public hearings during which the resolution may be considered;
178     6.  Identify the place or places within the county or
179municipality at which the resolution may be inspected by the
180public;
181     7.  Indicate that the property owner may file written
182objections with the local governing board prior to any public
183hearing on the resolution; and
184     8.  Indicate that interested parties may appear and be
185heard at all public hearings at which the resolution will be
186considered.
187     (4)  In addition to mailing notice to property owners, the
188county or municipality must conduct at least two advertised
189public hearings prior to adoption of the proposed resolution. At
190least one hearing must be held after 5 p.m. on a weekday, unless
191the governing body, by a majority plus one vote, elects to
192conduct the hearing at another time of day. The first public
193hearing must be held at least 7 days after the day the first
194advertisement is published. The second hearing must be held at
195least 10 days after the first hearing and must be advertised at
196least 5 days prior to the public hearing. The required
197advertisements must be no less than 2 columns wide by 10 inches
198long in a standard size or a tabloid size newspaper, and the
199headline in the advertisement must be in a type no smaller than
20018 point. The advertisement must not be placed in that portion
201of the newspaper where legal notices and classified
202advertisements appear and must be placed in a newspaper of
203general paid circulation rather than one of limited subject
204matter. Whenever possible, the advertisement must appear in a
205newspaper that is published at least 5 days a week unless the
206only newspaper in the community is published fewer than 5 days a
207week. At a minimum, the advertisement must:
208     (a)  Generally explain the substance and effect of the
209resolution;
210     (b)  Include a statement indicating that private property
211within the proposed redevelopment area may be subject to taking
212by eminent domain if the current condition of the property poses
213an existing threat to the public health or public safety that is
214likely to continue absent the exercise of eminent domain;
215     (c)  Provide the date, time, and location of the meeting;
216     (d)  Identify the place or places within the county or
217municipality at which the resolution may be inspected by the
218public;
219     (e)  Contain a geographic location map that clearly
220indicates the area covered by the resolution, including major
221street names as a means of identification of the general area;
222     (f)  Indicate that any interested party may file written
223objections with the local governing board prior to the public
224hearing; and
225     (g)  Indicate that any interested party may appear and be
226heard at the public hearing.
227     Section 4.  Subsection (6) is added to section 163.358,
228Florida Statutes, to read:
229     163.358  Exercise of powers in carrying out community
230redevelopment and related activities.--The community
231redevelopment powers assigned to a community redevelopment
232agency created under s. 163.356 include all the powers necessary
233or convenient to carry out and effectuate the purposes and
234provisions of this part, except the following, which continue to
235vest in the governing body of the county or municipality:
236     (6)  The power of eminent domain.
237     Section 5.  Paragraph (d) is added to subsection (2) of
238section 163.360, Florida Statutes, to read:
239     163.360  Community redevelopment plans.--
240     (2)  The community redevelopment plan shall:
241     (d)  Indicate that real property within the community
242redevelopment area may be subject to taking by eminent domain
243pursuant to s. 163.375. If consistent with the resolution
244finding slum or blight conditions, the plan must indicate that
245the power of eminent domain provided under s. 163.375 will not
246be exercised by the county or municipality within the community
247redevelopment area.
248     Section 6.  Paragraph (o) of subsection (1) and paragraph
249(a) of subsection (3) of section 163.370, Florida Statutes, are
250amended to read:
251     163.370  Powers; counties and municipalities; community
252redevelopment agencies.--
253     (1)  Every county and municipality shall have all the
254powers necessary or convenient to carry out and effectuate the
255purposes and provisions of this part, including the following
256powers in addition to others herein granted:
257     (o)  To exercise all or any part or combination of powers
258herein granted or to elect to have such powers exercised by a
259community redevelopment agency; however, the power of eminent
260domain shall not be exercised by a community redevelopment
261agency.
262     (3)  With the approval of the governing body, a community
263redevelopment agency may:
264     (a)  Prior to approval of a community redevelopment plan or
265approval of any modifications of the plan, acquire real property
266in a community redevelopment area by purchase, lease, option,
267gift, grant, bequest, devise, or other voluntary method of
268acquisition, demolish and remove any structures on the property,
269and pay all costs related to the acquisition, demolition, or
270removal, including any administrative or relocation expenses.
271     Section 7.  Section 163.375, Florida Statutes, is amended
272to read:
273     163.375  Eminent domain.--
274     (1)  After the community redevelopment plan is adopted, a
275county or municipality may acquire by eminent domain any
276interest in a parcel of real property within a community
277redevelopment area, including a fee simple title thereto, for
278the purpose of eliminating an existing threat to public health
279or public safety if the parcel of real property is condemnation
280eligible as defined in subsection (2). A county or municipality
281shall exercise the power of eminent domain in the manner
282provided in this section and in chapters 73 and 74, or pursuant
283to the power of eminent domain provided by any other statutory
284provision, as limited by s. 73.013. Real property belonging to
285the United States, the state, or any political subdivision of
286the state may not be acquired without its consent. Any county or
287municipality, or any community redevelopment agency pursuant to
288specific approval of the governing body of the county or
289municipality which established the agency, as provided by any
290county or municipal ordinance has the right to acquire by
291condemnation any interest in real property, including a fee
292simple title thereto, which it deems necessary for, or in
293connection with, community redevelopment and related activities
294under this part. Any county or municipality, or any community
295redevelopment agency pursuant to specific approval by the
296governing body of the county or municipality which established
297the agency, as provided by any county or municipal ordinance may
298exercise the power of eminent domain in the manner provided in
299chapters 73 and 74 and acts amendatory thereof or supplementary
300thereto, or it may exercise the power of eminent domain in the
301manner now or which may be hereafter provided by any other
302statutory provision for the exercise of the power of eminent
303domain. Property in unincorporated enclaves surrounded by the
304boundaries of a community redevelopment area may be acquired
305when it is determined necessary by the agency to accomplish the
306community redevelopment plan. Property already devoted to a
307public use may be acquired in like manner. However, no real
308property belonging to the United States, the state, or any
309political subdivision of the state may be acquired without its
310consent.
311     (2)  Private property is condemnation eligible if the
312current condition of the property poses an existing threat to
313public health or public safety that is likely to continue absent
314the exercise of eminent domain as evidenced by at least one of
315the following factors:
316     (a)  The property contains a structure which, in its
317current condition, has substantial dilapidation which is either
318physically incurable or economically incurable in that the cost
319of repair or rehabilitation would exceed the replacement cost of
320a new structure. Superficial or cosmetic disrepair, which is
321repairable by a nominal expenditure, not to exceed 20 percent of
322the market value of the existing structure, shall not constitute
323dilapidation for purposes of constituting a condemnation-
324eligible factor;
325     (b)  The property contains a structure which, in its
326current condition, is unsanitary, unsafe, or vermin infested and
327is designated by the agency responsible for enforcement of the
328housing, building, or fire codes as unfit for human habitation
329or use;
330     (c)  The property contains a structure which, in its
331current condition, is a fire hazard, or otherwise dangerous to
332the safety of persons or property, and is designated by the
333agency responsible for enforcement of the housing, building, or
334fire codes as unfit for human habitation or use;
335     (d)  The property contains a structure from which, in its
336current condition, the utilities, plumbing, heating, sewerage,
337or other facilities have been disconnected, destroyed, removed,
338or rendered ineffective so that the property is unfit for human
339habitation or use; or
340     (e)  The physical condition, use, or occupancy of the
341property constitutes a public nuisance and the property has been
342the subject of code violations affecting public health or public
343safety that have not been substantially rehabilitated within 1
344year after receipt of notice to rehabilitate from the
345appropriate code enforcement agency.
346     (3)  A county or municipality may not initiate an eminent
347domain proceeding pursuant to authority conferred by this
348section unless the governing body first adopts a resolution of
349taking containing specific determinations or findings that:
350     (a)  The public purpose of the taking is to eliminate an
351existing threat to public health or public safety that is likely
352to continue absent the exercise of eminent domain;
353     (b)  The parcel of real property is condemnation eligible
354as defined in subsection (2), including a specific description
355of the current conditions on the property that pose an existing
356threat to public health or public safety that is likely to
357continue absent the exercise of eminent domain; and
358     (c)  Taking the property by eminent domain is reasonably
359necessary in order to accomplish the public purpose of
360eliminating an existing threat to public health or public safety
361that is likely to continue absent the exercise of eminent
362domain.
363     (4)  The county or municipality may not adopt a resolution
364of taking under this section unless actual notice of the public
365hearing at which the resolution is considered was provided, at
366least 45 days prior to the hearing, to the property owner and to
367any business owner, including a lessee, who operates a business
368located on the property.
369     (a)  Notice must be sent by certified mail, return receipt
370requested, to the last known address listed on the county ad
371valorem tax roll of each owner of the property. Alternatively,
372the notice may be personally delivered to each property owner.
373Compliance with this subsection shall also require conspicuous
374posting of the notice to the premises of the property to be
375acquired. The posted notice shall prominently and legibly
376display the information provided in paragraph (c). The
377condemning authority is not required to give notice to a person
378who acquires title to the property after the notice required by
379this subsection has been given.
380     (b)  Notice must be sent by certified mail, return receipt
381requested, to the address of the registered agent for the
382business located on the property to be acquired or, if no agent
383is registered, by certified mail or personal delivery to the
384address of the business located on the property to be acquired.
385Notice to one owner of a multiple ownership business constitutes
386notice to all business owners of that business. Compliance with
387this subsection shall also require conspicuous posting of the
388notice to the premises of the property to be acquired. The
389posted notice shall prominently and legibly display the
390information provided in paragraph (c). The condemning authority
391is not required to give notice to a person who acquires an
392interest in the business after the notice required by this
393subsection has been given.
394     (c)  At a minimum, the notices required by paragraphs (a)
395and (b) shall indicate:
396     1.  That the county or municipal governing body will
397determine whether to take the parcel of real property pursuant
398to authority granted by this part and will formally consider a
399resolution of taking at a public hearing;
400     2.  That the property is subject to taking by eminent
401domain under this part because current conditions on the
402property pose an existing threat to public health or public
403safety that is likely to continue absent the exercise of eminent
404domain;
405     3.  The specific conditions on the property that pose an
406existing threat to public health or public safety and form the
407basis for taking the property;
408     4.  That the property will not be subject to taking if the
409specific conditions that pose an existing threat to public
410health or public safety and form the basis for the taking are
411removed prior to the public hearing at which the resolution will
412be considered by the governing body;
413     5.  The date, time, and location of the public hearing at
414which the resolution of taking will be considered;
415     6.  That the property owner or business owner may file
416written objections with the governing board prior to the public
417hearing at which the resolution of taking is considered; and
418     7.  That any interested party may appear and be heard at
419the public hearing at which the resolution of taking is
420considered.
421     (5)(a)  In accordance with chapters 73 and 74, if a
422property owner challenges an attempt to acquire his or her
423property by eminent domain under this section, the condemning
424authority must prove by clear and convincing evidence in an
425evidentiary hearing before the circuit court that:
426     1.  The public purpose of the taking is to eliminate an
427existing threat to public health or public safety that is likely
428to continue absent the exercise of eminent domain;
429     2.  The property is condemnation eligible as defined in
430subsection (2); and
431     3.  Taking the property by eminent domain is reasonably
432necessary in order to accomplish the public purpose of
433eliminating an existing threat to public health or public safety
434that is likely to continue absent the exercise of eminent
435domain.
436     (b)  The circuit court shall determine whether the public
437purpose of the taking is to eliminate an existing threat to
438public health or public safety that is likely to continue absent
439the exercise of eminent domain, whether the property is
440condemnation eligible as defined in subsection (2), and whether
441taking the property is reasonably necessary in order to
442accomplish the public purpose of eliminating an existing threat
443to public health or public safety that is likely to continue
444absent the exercise of eminent domain. The circuit court shall
445make these determinations without attaching a presumption of
446correctness or extending judicial deference to any
447determinations or findings in the resolution of taking adopted
448by the condemning authority.
449     (6)(2)  In any proceeding to fix or assess compensation for
450damages for the taking of property, or any interest therein,
451through the exercise of the power of eminent domain or
452condemnation, evidence or testimony bearing upon the following
453matters shall be admissible and shall be considered in fixing
454such compensation or damages in addition to evidence or
455testimony otherwise admissible:
456     (a)  Any use, condition, occupancy, or operation of such
457property, which is unlawful or violative of, or subject to
458elimination, abatement, prohibition, or correction under, any
459law, ordinance, or regulatory measure of the state, county,
460municipality, or other political subdivision, or any agency
461thereof, in which such property is located, as being unsafe,
462substandard, unsanitary, or otherwise contrary to the public
463health, safety, morals, or welfare.
464     (b)  The effect on the value of such property of any such
465use, condition, occupancy, or operation or of the elimination,
466abatement, prohibition, or correction of any such use,
467condition, occupancy, or operation.
468     (7)(3)  In any proceeding to fix or assess compensation for
469damages for the taking of property, or any interest therein, the
470foregoing testimony and evidence shall be admissible
471notwithstanding that no action has been taken by any public body
472or public officer toward the abatement, prohibition,
473elimination, or correction of any such use, condition,
474occupancy, or operation. Testimony or evidence that any public
475body or public officer charged with the duty or authority so to
476do has rendered, made, or issued any judgment, decree,
477determination, or order for the abatement, prohibition,
478elimination, or correction of any such use, condition,
479occupancy, or operation shall be admissible and shall be prima
480facie evidence of the existence and character of such use,
481condition, or operation.
482     Section 8.  Subsection (3) is added to section 127.01,
483Florida Statutes, to read:
484     127.01  Counties delegated power of eminent domain;
485recreational purposes, issue of necessity of taking.--
486     (3)  Each county shall strictly comply with the limitations
487set forth in s. 73.013.
488     Section 9.  Section 127.02, Florida Statutes, is amended to
489read:
490     127.02  County commissioners may authorize acquirement of
491property by eminent domain.--The board of county commissioners
492may, by resolution, authorize the acquirement by eminent domain
493of property, real or personal, for any county use or purpose
494designated in such resolution, subject to the limitations set
495forth in s. 73.013.
496     Section 10.  Subsection (3) is added to section 166.401,
497Florida Statutes, to read:
498     166.401  Right of eminent domain.--
499     (3)  Each municipality shall strictly comply with the
500limitations set forth in s. 73.013.
501     Section 11.  Subsections (1), (9), and (10) of section
502166.411, Florida Statutes, are amended to read:
503     166.411  Eminent domain; uses or purposes.--Municipalities
504are authorized to exercise the power of eminent domain for the
505following uses or purposes:
506     (1)  For the proper and efficient carrying into effect of
507any proposed scheme or plan of drainage, ditching, grading,
508filling, or other public improvement deemed necessary or
509expedient for the preservation of the public health, or for
510other good reason connected in anywise with the public welfare
511or the interests of the municipality and the people thereof,
512subject to the limitations set forth in s. 73.013;
513     (9)  For laying wires and conduits underground; and
514     (10)  For city buildings, waterworks, ponds, and other
515municipal purposes which shall be coextensive with the powers of
516the municipality exercising the right of eminent domain subject
517to the limitations set forth in s. 73.013.; and
518     Section 12.  This act shall take effect July 1, 2006, and
519shall apply to all condemnation proceedings in which a petition
520of taking is filed pursuant to chapter 73, Florida Statutes, on
521or after that date.


CODING: Words stricken are deletions; words underlined are additions.