HB 1567

1
A bill to be entitled
2An act relating to eminent domain; creating s. 73.013,
3F.S.; restricting certain transfers of property taken by
4eminent domain to certain natural persons or private
5entities; amending s. 163.335, F.S.; providing legislative
6findings and declarations; amending s. 163.355, F.S.;
7requiring disclosure of eminent domain authority in
8resolutions finding slum or blight conditions; providing
9for notice to property owners and business owners or
10lessees and requirements therefor; providing for hearings
11and advertising requirements therefor; amending s.
12163.358, F.S.; providing that the power of eminent domain
13does not vest in a community redevelopment agency but
14rather with the governing body of a county or
15municipality; amending s. 163.360, F.S.; requiring
16disclosure of eminent domain authority in community
17redevelopment plans; amending s. 163.370, F.S.; revising
18powers of community redevelopment agencies with respect to
19the acquisition of real property; amending s. 163.375,
20F.S.; revising eminent domain authority and procedures,
21including notice, hearings, and challenge; amending ss.
22127.01 and 127.02, F.S.; requiring county compliance with
23eminent domain limitations; amending ss. 166.401 and
24166.411, F.S.; requiring municipal compliance with eminent
25domain limitations; providing application; providing an
26effective date.
27
28Be It Enacted by the Legislature of the State of Florida:
29
30     Section 1.  Section 73.013, Florida Statutes, is created to
31read:
32     73.013  Conveyance of property taken by eminent domain.--
33     (1)  Notwithstanding any other provision of law, including
34any charter provision, ordinance, statute, or special law, if
35the state, any political subdivision as defined in s. 1.01(8),
36or any other entity to which the power of eminent domain is
37delegated files a petition of taking on or after July 1, 2006,
38regarding a parcel of real property in this state, ownership or
39control of property acquired pursuant to such petition may not
40be conveyed by the condemning authority or any other entity to a
41natural person or private entity, except that ownership or
42control of property acquired pursuant to such petition may be
43conveyed to:
44     (a)  A natural person or private entity for use in
45providing common carrier services or systems;
46     (b)  A natural person or private entity for use as a road
47or other right-of-way or means open to the public for
48transportation, whether at no charge or by toll;
49     (c)  A natural person or private entity that is a public or
50private utility for use in providing electricity services or
51systems, natural or manufactured gas services or systems, water
52and wastewater services or systems, stormwater or runoff
53services or systems, sewer services or systems, pipeline
54facilities, telephone services or systems, or similar services
55or systems;
56     (d)  A natural person or private entity for use in
57providing public infrastructure;
58     (e)  A natural person or private entity that occupies,
59pursuant to a lease, an incidental part of a public property or
60a public facility for the purpose of providing goods or services
61to the public;
62     (f)  A natural person or private entity, after public
63notice and competitive bidding unless otherwise provided by
64general law, if the property was owned and controlled by the
65condemning authority or a governmental entity for at least 5
66years after the condemning authority acquired title to the
67property; or
68     (g)  A natural person or private entity in accordance with
69subsection (2).
70     (2)  If ownership of property is conveyed to a natural
71person or private entity pursuant to any of paragraphs (1)(a)-
72(e), and that natural person or private entity retains ownership
73and control of the property for at least 5 years after acquiring
74title, the property may subsequently be transferred, after
75public notice and competitive bidding unless otherwise provided
76by general law, to another natural person or private entity
77without restriction.
78     Section 2.  Subsection (3) of section 163.335, Florida
79Statutes, is amended, and subsection (7) is added to that
80section, to read:
81     163.335  Findings and declarations of necessity.--
82     (3)  It is further found and declared that the powers
83conferred by this part are for public uses and purposes for
84which public money may be expended, the police power exercised,
85and the power of eminent domain exercised subject to the
86limitations in s. 163.375 and the power of eminent domain and
87police power exercised, and the necessity in the public interest
88for the provisions herein enacted is hereby declared as a matter
89of legislative determination.
90     (7)  It is further found that the prevention or elimination
91of a "slum area" or "blighted area" as defined in this part and
92the preservation or enhancement of the tax base are not public
93uses or purposes for which private property may be taken by
94eminent domain.
95     Section 3.  Section 163.355, Florida Statutes, is amended
96to read:
97     163.355  Finding of necessity by county or municipality.--
98     (1)  No county or municipality shall exercise the community
99redevelopment authority conferred by this part until after the
100governing body has adopted a resolution, supported by data and
101analysis, which makes a legislative finding that the conditions
102in the area meet the criteria described in s. 163.340(7) or (8).
103The resolution must state that:
104     (a)(1)  One or more slum or blighted areas, or one or more
105areas in which there is a shortage of housing affordable to
106residents of low or moderate income, including the elderly,
107exist in such county or municipality; and
108     (b)(2)  The rehabilitation, conservation, or redevelopment,
109or a combination thereof, of such area or areas, including, if
110appropriate, the development of housing which residents of low
111or moderate income, including the elderly, can afford, is
112necessary in the interest of the public health, safety, morals,
113or welfare of the residents of such county or municipality.
114     (2)  A resolution finding slum or blight conditions must
115indicate that property within the community redevelopment area
116may be subject to taking by eminent domain pursuant to s.
117163.375. In the alternative, the county or municipality may
118explicitly state in the resolution that the power of eminent
119domain provided under s. 163.375 will not be exercised by the
120county or municipality within the community redevelopment area.
121A county or municipality is not required to provide notice in
122accordance with subsections (3) and (4) if the resolution
123finding slum or blight conditions, as proposed and adopted by
124the county or municipality, expressly declares that the power of
125eminent domain provided under s. 163.375 will not be exercised
126by the county or municipality within the community redevelopment
127area.
128     (3)  At least 30 days prior to the first public hearing at
129which a proposed resolution finding slum or blight conditions
130will be considered by a county or municipality, actual notice of
131the public hearing must be mailed via first class mail to each
132real property owner whose property may be included within the
133community redevelopment area and to each business owner,
134including a lessee, who operates a business located on property
135that may be included within the community redevelopment area.
136     (a)  Notice must be sent to each owner of real property
137that may be included within the community redevelopment area at
138the owner's last known address as listed on the county ad
139valorem tax roll. Alternatively, the notice may be personally
140delivered to a property owner. If there is more than one owner
141of a property, notice to one owner constitutes notice to all
142owners of the property. The return of the notice as
143undeliverable by the postal authorities constitutes compliance
144with this subsection. The condemning authority is not required
145to give notice to a person who acquires title to property after
146the notice required by this subsection has been given.
147     (b)  Notice must be sent to the address of the registered
148agent for the business located on the property or, if no agent
149is registered, by certified mail or personal delivery to the
150address of the business located on the property. Notice to one
151owner of a multiple ownership business constitutes notice to all
152owners of that business. The return of the notice as
153undeliverable by the postal authorities constitutes compliance
154with this subsection. The condemning authority is not required
155to give notice to a person who acquires an interest in a
156business after the notice required by this subsection has been
157given.
158     (c)  At a minimum, the mailed notice required by paragraphs
159(a) and (b) must:
160     1.  Generally explain the purpose, effect, and substance of
161the proposed resolution;
162     2.  Indicate that private property within the proposed
163redevelopment area may be subject to taking by eminent domain if
164the current condition of the property poses an existing threat
165to the public health or public safety that is likely to continue
166absent the exercise of eminent domain;
167     3.  Indicate that private-to-private transfers of property
168may occur;
169     4.  Contain a geographic location map that clearly
170indicates the area covered by the resolution, including major
171street names as a means of identification of the general area;
172     5.  Provide the dates, times, and locations of future
173public hearings during which the resolution may be considered;
174     6.  Identify the place or places within the county or
175municipality at which the resolution may be inspected by the
176public;
177     7.  Indicate that the property owner may file written
178objections with the local governing board prior to any public
179hearing on the resolution; and
180     8.  Indicate that interested parties may appear and be
181heard at all public hearings at which the resolution will be
182considered.
183     (4)  In addition to mailing notice to property owners, the
184county or municipality must conduct at least two advertised
185public hearings prior to adoption of the proposed resolution. At
186least one hearing must be held after 5 p.m. on a weekday, unless
187the governing body, by a majority plus one vote, elects to
188conduct the hearing at another time of day. The first public
189hearing must be held at least 7 days after the day the first
190advertisement is published. The second hearing must be held at
191least 10 days after the first hearing and must be advertised at
192least 5 days prior to the public hearing. The required
193advertisements must be no less than 2 columns wide by 10 inches
194long in a standard size or a tabloid size newspaper, and the
195headline in the advertisement must be in a type no smaller than
19618 point. The advertisement must not be placed in that portion
197of the newspaper where legal notices and classified
198advertisements appear and must be placed in a newspaper of
199general paid circulation rather than one of limited subject
200matter. Whenever possible, the advertisement must appear in a
201newspaper that is published at least 5 days a week unless the
202only newspaper in the community is published fewer than 5 days a
203week. At a minimum, the advertisement must:
204     (a)  Generally explain the substance and effect of the
205resolution;
206     (b)  Include a statement indicating that private property
207within the proposed redevelopment area may be subject to taking
208by eminent domain if the current condition of the property poses
209an existing threat to the public health or public safety that is
210likely to continue absent the exercise of eminent domain;
211     (c)  Provide the date, time, and location of the meeting;
212     (d)  Identify the place or places within the county or
213municipality at which the resolution may be inspected by the
214public;
215     (e)  Contain a geographic location map that clearly
216indicates the area covered by the resolution, including major
217street names as a means of identification of the general area;
218     (f)  Indicate that any interested party may file written
219objections with the local governing board prior to the public
220hearing; and
221     (g)  Indicate that any interested party may appear and be
222heard at the public hearing.
223     Section 4.  Subsection (6) is added to section 163.358,
224Florida Statutes, to read:
225     163.358  Exercise of powers in carrying out community
226redevelopment and related activities.--The community
227redevelopment powers assigned to a community redevelopment
228agency created under s. 163.356 include all the powers necessary
229or convenient to carry out and effectuate the purposes and
230provisions of this part, except the following, which continue to
231vest in the governing body of the county or municipality:
232     (6)  The power of eminent domain.
233     Section 5.  Paragraph (d) is added to subsection (2) of
234section 163.360, Florida Statutes, to read:
235     163.360  Community redevelopment plans.--
236     (2)  The community redevelopment plan shall:
237     (d)  Indicate that real property within the community
238redevelopment area may be subject to taking by eminent domain
239pursuant to s. 163.375. If consistent with the resolution
240finding slum or blight conditions, the plan must indicate that
241the power of eminent domain provided under s. 163.375 will not
242be exercised by the county or municipality within the community
243redevelopment area.
244     Section 6.  Paragraph (o) of subsection (1) and paragraph
245(a) of subsection (3) of section 163.370, Florida Statutes, are
246amended to read:
247     163.370  Powers; counties and municipalities; community
248redevelopment agencies.--
249     (1)  Every county and municipality shall have all the
250powers necessary or convenient to carry out and effectuate the
251purposes and provisions of this part, including the following
252powers in addition to others herein granted:
253     (o)  To exercise all or any part or combination of powers
254herein granted or to elect to have such powers exercised by a
255community redevelopment agency; however, the power of eminent
256domain shall not be exercised by a community redevelopment
257agency.
258     (3)  With the approval of the governing body, a community
259redevelopment agency may:
260     (a)  Prior to approval of a community redevelopment plan or
261approval of any modifications of the plan, acquire real property
262in a community redevelopment area by purchase, lease, option,
263gift, grant, bequest, devise, or other voluntary method of
264acquisition, demolish and remove any structures on the property,
265and pay all costs related to the acquisition, demolition, or
266removal, including any administrative or relocation expenses.
267     Section 7.  Section 163.375, Florida Statutes, is amended
268to read:
269     163.375  Eminent domain.--
270     (1)  After the community redevelopment plan is adopted, a
271county or municipality may acquire by eminent domain any
272interest in a parcel of real property within a community
273redevelopment area, including a fee simple title thereto, for
274the purpose of eliminating an existing threat to public health
275or public safety if the parcel of real property is condemnation
276eligible as defined in subsection (2). A county or municipality
277shall exercise the power of eminent domain in the manner
278provided in this section and in chapters 73 and 74, or pursuant
279to the power of eminent domain provided by any other statutory
280provision, as limited by s. 73.013. Real property belonging to
281the United States, the state, or any political subdivision of
282the state may not be acquired without its consent. Any county or
283municipality, or any community redevelopment agency pursuant to
284specific approval of the governing body of the county or
285municipality which established the agency, as provided by any
286county or municipal ordinance has the right to acquire by
287condemnation any interest in real property, including a fee
288simple title thereto, which it deems necessary for, or in
289connection with, community redevelopment and related activities
290under this part. Any county or municipality, or any community
291redevelopment agency pursuant to specific approval by the
292governing body of the county or municipality which established
293the agency, as provided by any county or municipal ordinance may
294exercise the power of eminent domain in the manner provided in
295chapters 73 and 74 and acts amendatory thereof or supplementary
296thereto, or it may exercise the power of eminent domain in the
297manner now or which may be hereafter provided by any other
298statutory provision for the exercise of the power of eminent
299domain. Property in unincorporated enclaves surrounded by the
300boundaries of a community redevelopment area may be acquired
301when it is determined necessary by the agency to accomplish the
302community redevelopment plan. Property already devoted to a
303public use may be acquired in like manner. However, no real
304property belonging to the United States, the state, or any
305political subdivision of the state may be acquired without its
306consent.
307     (2)  Private property is condemnation eligible if the
308current condition of the property poses an existing threat to
309public health or public safety that is likely to continue absent
310the exercise of eminent domain as evidenced by at least one of
311the following factors:
312     (a)  The property contains a structure which, in its
313current condition, has substantial dilapidation which is either
314physically incurable or economically incurable in that the cost
315of repair or rehabilitation would exceed the replacement cost of
316a new structure. Superficial or cosmetic disrepair, which is
317repairable by a nominal expenditure, not to exceed 20 percent of
318the market value of the existing structure, shall not constitute
319dilapidation for purposes of constituting a condemnation-
320eligible factor;
321     (b)  The property contains a structure which, in its
322current condition, is unsanitary, unsafe, or vermin infested and
323is designated by the agency responsible for enforcement of the
324housing, building, or fire codes as unfit for human habitation
325or use;
326     (c)  The property contains a structure which, in its
327current condition, is a fire hazard, or otherwise dangerous to
328the safety of persons or property, and is designated by the
329agency responsible for enforcement of the housing, building, or
330fire codes as unfit for human habitation or use;
331     (d)  The property contains a structure from which, in its
332current condition, the utilities, plumbing, heating, sewerage,
333or other facilities have been disconnected, destroyed, removed,
334or rendered ineffective so that the property is unfit for human
335habitation or use; or
336     (e)  The physical condition, use, or occupancy of the
337property constitutes a public nuisance and the property has been
338the subject of code violations affecting public health or public
339safety that have not been substantially rehabilitated within 1
340year after receipt of notice to rehabilitate from the
341appropriate code enforcement agency.
342     (3)  A county or municipality may not initiate an eminent
343domain proceeding pursuant to authority conferred by this
344section unless the governing body first adopts a resolution of
345taking containing specific determinations or findings that:
346     (a)  The public purpose of the taking is to eliminate an
347existing threat to public health or public safety that is likely
348to continue absent the exercise of eminent domain;
349     (b)  The parcel of real property is condemnation eligible
350as defined in subsection (2), including a specific description
351of the current conditions on the property that pose an existing
352threat to public health or public safety that is likely to
353continue absent the exercise of eminent domain; and
354     (c)  Taking the property by eminent domain is reasonably
355necessary in order to accomplish the public purpose of
356eliminating an existing threat to public health or public safety
357that is likely to continue absent the exercise of eminent
358domain.
359     (4)  The county or municipality may not adopt a resolution
360of taking under this section unless actual notice of the public
361hearing at which the resolution is considered was provided, at
362least 45 days prior to the hearing, to the property owner and to
363any business owner, including a lessee, who operates a business
364located on the property.
365     (a)  Notice must be sent by certified mail, return receipt
366requested, to the last known address listed on the county ad
367valorem tax roll of each owner of the property. Alternatively,
368the notice may be personally delivered to each property owner.
369Compliance with this subsection shall also require conspicuous
370posting of the notice to the premises of the property to be
371acquired. The posted notice shall prominently and legibly
372display the information provided in paragraph (c). The
373condemning authority is not required to give notice to a person
374who acquires title to the property after the notice required by
375this subsection has been given.
376     (b)  Notice must be sent by certified mail, return receipt
377requested, to the address of the registered agent for the
378business located on the property to be acquired or, if no agent
379is registered, by certified mail or personal delivery to the
380address of the business located on the property to be acquired.
381Notice to one owner of a multiple ownership business constitutes
382notice to all business owners of that business. Compliance with
383this subsection shall also require conspicuous posting of the
384notice to the premises of the property to be acquired. The
385posted notice shall prominently and legibly display the
386information provided in paragraph (c). The condemning authority
387is not required to give notice to a person who acquires an
388interest in the business after the notice required by this
389subsection has been given.
390     (c)  At a minimum, the notices required by paragraphs (a)
391and (b) shall indicate:
392     1.  That the county or municipal governing body will
393determine whether to take the parcel of real property pursuant
394to authority granted by this part and will formally consider a
395resolution of taking at a public hearing;
396     2.  That the property is subject to taking by eminent
397domain under this part because current conditions on the
398property pose an existing threat to public health or public
399safety that is likely to continue absent the exercise of eminent
400domain;
401     3.  The specific conditions on the property that pose an
402existing threat to public health or public safety and form the
403basis for taking the property;
404     4.  That the property will not be subject to taking if the
405specific conditions that pose an existing threat to public
406health or public safety and form the basis for the taking are
407removed prior to the public hearing at which the resolution will
408be considered by the governing body;
409     5.  The date, time, and location of the public hearing at
410which the resolution of taking will be considered;
411     6.  That the property owner or business owner may file
412written objections with the governing board prior to the public
413hearing at which the resolution of taking is considered; and
414     7.  That any interested party may appear and be heard at
415the public hearing at which the resolution of taking is
416considered.
417     (5)(a)  In accordance with chapters 73 and 74, if a
418property owner challenges an attempt to acquire his or her
419property by eminent domain under this section, the condemning
420authority must prove by clear and convincing evidence in an
421evidentiary hearing before the circuit court that:
422     1.  The public purpose of the taking is to eliminate an
423existing threat to public health or public safety that is likely
424to continue absent the exercise of eminent domain;
425     2.  The property is condemnation eligible as defined in
426subsection (2); and
427     3.  Taking the property by eminent domain is reasonably
428necessary in order to accomplish the public purpose of
429eliminating an existing threat to public health or public safety
430that is likely to continue absent the exercise of eminent
431domain.
432     (b)  The circuit court shall determine whether the public
433purpose of the taking is to eliminate an existing threat to
434public health or public safety that is likely to continue absent
435the exercise of eminent domain, whether the property is
436condemnation eligible as defined in subsection (2), and whether
437taking the property is reasonably necessary in order to
438accomplish the public purpose of eliminating an existing threat
439to public health or public safety that is likely to continue
440absent the exercise of eminent domain. The circuit court shall
441make these determinations without attaching a presumption of
442correctness or extending judicial deference to any
443determinations or findings in the resolution of taking adopted
444by the condemning authority.
445     (6)(2)  In any proceeding to fix or assess compensation for
446damages for the taking of property, or any interest therein,
447through the exercise of the power of eminent domain or
448condemnation, evidence or testimony bearing upon the following
449matters shall be admissible and shall be considered in fixing
450such compensation or damages in addition to evidence or
451testimony otherwise admissible:
452     (a)  Any use, condition, occupancy, or operation of such
453property, which is unlawful or violative of, or subject to
454elimination, abatement, prohibition, or correction under, any
455law, ordinance, or regulatory measure of the state, county,
456municipality, or other political subdivision, or any agency
457thereof, in which such property is located, as being unsafe,
458substandard, unsanitary, or otherwise contrary to the public
459health, safety, morals, or welfare.
460     (b)  The effect on the value of such property of any such
461use, condition, occupancy, or operation or of the elimination,
462abatement, prohibition, or correction of any such use,
463condition, occupancy, or operation.
464     (7)(3)  In any proceeding to fix or assess compensation for
465damages for the taking of property, or any interest therein, the
466foregoing testimony and evidence shall be admissible
467notwithstanding that no action has been taken by any public body
468or public officer toward the abatement, prohibition,
469elimination, or correction of any such use, condition,
470occupancy, or operation. Testimony or evidence that any public
471body or public officer charged with the duty or authority so to
472do has rendered, made, or issued any judgment, decree,
473determination, or order for the abatement, prohibition,
474elimination, or correction of any such use, condition,
475occupancy, or operation shall be admissible and shall be prima
476facie evidence of the existence and character of such use,
477condition, or operation.
478     Section 8.  Subsection (3) is added to section 127.01,
479Florida Statutes, to read:
480     127.01  Counties delegated power of eminent domain;
481recreational purposes, issue of necessity of taking.--
482     (3)  Each county shall strictly comply with the limitations
483set forth in s. 73.013.
484     Section 9.  Section 127.02, Florida Statutes, is amended to
485read:
486     127.02  County commissioners may authorize acquirement of
487property by eminent domain.--The board of county commissioners
488may, by resolution, authorize the acquirement by eminent domain
489of property, real or personal, for any county use or purpose
490designated in such resolution, subject to the limitations set
491forth in s. 73.013.
492     Section 10.  Subsection (3) is added to section 166.401,
493Florida Statutes, to read:
494     166.401  Right of eminent domain.--
495     (3)  Each municipality shall strictly comply with the
496limitations set forth in s. 73.013.
497     Section 11.  Subsections (1), (9), and (10) of section
498166.411, Florida Statutes, are amended to read:
499     166.411  Eminent domain; uses or purposes.--Municipalities
500are authorized to exercise the power of eminent domain for the
501following uses or purposes:
502     (1)  For the proper and efficient carrying into effect of
503any proposed scheme or plan of drainage, ditching, grading,
504filling, or other public improvement deemed necessary or
505expedient for the preservation of the public health, or for
506other good reason connected in anywise with the public welfare
507or the interests of the municipality and the people thereof,
508subject to the limitations set forth in s. 73.013;
509     (9)  For laying wires and conduits underground; and
510     (10)  For city buildings, waterworks, ponds, and other
511municipal purposes which shall be coextensive with the powers of
512the municipality exercising the right of eminent domain subject
513to the limitations set forth in s. 73.013.; and
514     Section 12.  This act shall take effect July 1, 2006, and
515shall apply to all condemnation proceedings in which a petition
516of taking is filed pursuant to chapter 73, Florida Statutes, on
517or after that date.


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