House Bill 3583

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    Florida House of Representatives - 1998                HB 3583

        By Representatives K. Pruitt, Sembler, Mackey, Putnam,
    Cosgrove, Kelly, Sublette, Ogles, Valdes, Barreiro, Bainter,
    Melvin, Casey, Flanagan, Futch, Fasano, Tamargo, Burroughs,
    Wallace, Peaden, Byrd, Goode, Minton, Lawson, Posey, Ball,
    King, Murman, Bradley, Ritchie and Dockery


  1                      A bill to be entitled

  2         An act relating to eminent domain; amending s.

  3         73.0511, F.S.; providing requirements with

  4         respect to prelitigation; providing for

  5         prelitigation notice to fee owners; providing

  6         for exchange of appraisals; providing for

  7         prelitigation notice to business operators;

  8         providing a procedure with respect to certain

  9         prelitigation offers; providing requirements

10         with respect to written offers; amending s.

11         73.071, F.S.; revising language with respect to

12         compensation which may be awarded by

13         determination of a jury; amending s. 337.25,

14         F.S., to conform to the act; correcting a cross

15         reference; amending s. 337.27, F.S.; removing

16         language with respect to the power of the

17         Department of Transportation to acquire certain

18         property; amending ss. 127.01, 166.401 and

19         337.271, F.S.; correcting cross references to

20         conform to the act; providing an effective

21         date.

22

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

24

25         Section 1.  Section 73.0511, Florida Statutes, is

26  amended to read:

27         73.0511  Prelitigation notice.--

28         (1)  Prior to instituting litigation, the condemning

29  authority shall notify the fee owners appearing of record as

30  to the date the offer is made of statutory rights under s.

31

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  1  73.091, and shall make a written offer of full compensation

  2  naming the fee owners to whom it is made.

  3         (2)(a)  After the offer is made, the fee owner may

  4  request a copy of the most current appraisal and construction

  5  plans pertaining to the property upon which the offer is

  6  based.  The governmental condemning authority shall provide

  7  the appraisal and plans within 15 days after the request;

  8  however, with respect to lands acquired pursuant s. 259.041,

  9  the condemning authority shall not be required to give the fee

10  owners the current appraisal prior to the execution of an

11  option contract to purchase the property.

12         (b)  Within 30 days after receipt of the governmental

13  condemning authority's appraisal, the fee owners shall provide

14  the governmental condemning authority a copy of the most

15  current appraisal of the property prepared during the prior 3

16  years which is within the control or possession of the owner.

17         (3)  Prior to instituting litigation, the governmental

18  condemning authority shall make a good faith effort to notify

19  the onsite operators of businesses located on property to be

20  acquired for a proposed right-of-way project of all statutory

21  rights under s. 73.091.  If requested, the governmental

22  condemning authority shall, within 30 days, provide to the

23  owner or onsite operator of the business a copy of the

24  construction plans, if any, and right-of-way maps pertaining

25  to the property to be acquired.

26         (4)  After the governmental condemning authority

27  tenders a prelitigation offer pursuant to subsection (1), the

28  governmental condemning authority may seek to obtain from the

29  owner or onsite operator of the business a copy of the

30  business records kept in the ordinary course of business, if

31  available.  For the purposes of this section and s.

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  1  73.092(1)(a)2., business records shall be limited to copies of

  2  federal income tax returns, federal income tax withholding

  3  statements, federal miscellaneous income tax statements,

  4  balance sheets, profit and loss statements, and state

  5  corporate income tax returns attributable to the business

  6  operation on the property to be acquired for the 3 years

  7  preceding notification.  If any of these records are

  8  consolidated with other business operations not on the

  9  property to be acquired, then it will be sufficient in the

10  alternative that edited portions of the business records

11  attributable to the business operation on the property to be

12  acquired for the 3 years preceding notification be provided in

13  addition to a signed acknowledgment from the business owner.

14  The provisions of this subsection are not mandatory and shall

15  not be construed as a condition for claiming business damages,

16  but are intended solely for the purposes of encouraging

17  prelitigation settlements.

18         (5)  Subsequent to the owner or onsite operator of the

19  business furnishing the business records in response to a

20  request, the governmental condemning authority may make a

21  written offer of settlement for business damages.  If an

22  eminent domain action is initiated under chapters 73 and 74

23  for acquisition of the property more than 90 days after the

24  governmental condemning authority has received the business

25  records, it shall include the amount of its good faith

26  estimate of business damages in its declaration of taking and

27  shall deposit the amount of the business damage estimate into

28  the court registry.  The good faith estimate shall constitute

29  a written offer of settlement.

30         Section 2.  Subsection (3) of section 73.071, Florida

31  Statutes, is amended to read:

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  1         73.071  Jury trial; compensation; severance damages.--

  2         (3)  The jury shall determine solely the amount of

  3  compensation to be paid, which compensation shall include:

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

  5  appropriated, provided that when the use of the property to be

  6  acquired is an agricultural operation as defined in s.

  7  570.02(1), income from farming shall be deemed attributable to

  8  real estate.;

  9         (b)  Where less than the entire property is sought to

10  be appropriated, any damages to the remainder caused by the

11  taking.,

12         (c)  including, When the action is by the Department of

13  Transportation, county, municipality, board, district or other

14  public body for the condemnation of a right-of-way, and the

15  effect of the taking of the property involved or substantial

16  diminution of access may damage or destroy an established

17  business of more than 3 5 years' standing at that business

18  location, owned and operated at that location owned by the

19  party whose property is being taken or whose access is being

20  substantially diminished lands are being so taken, located

21  upon adjoining lands owned or held by such party, the probable

22  damages to such business which the denial of the use of the

23  property so taken or access substantially diminished may

24  reasonably cause; any person claiming the right to recover

25  such special damages shall set forth in his or her written

26  defenses the nature and extent of such damages, provided that

27  the total compensation awarded for business damages may not

28  exceed the value of the business and reasonable moving

29  expenses.; and

30         (d)  Evidence of the ability to mitigate severance and

31  business damages onsite or by relocating all or part of the

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  1  business to an adjacent property or to another comparable

  2  location in the same market trade area may be considered when

  3  the cost of mitigation is less than the total severance and

  4  business damages claimed. Any increased costs of operation and

  5  reasonable expenses of mitigation resulting from the onsite

  6  mitigation plan or from the relocation of the business to

  7  another comparable location in the same market trade area,

  8  together with moving costs, downtime losses, and unmitigated

  9  damages, may be included when determining severance damages,

10  business damages, and the total cost to cure payable to the

11  claimant.

12         (e)(c)  Where the appropriation is of property upon

13  which a mobile home, other than a travel trailer as defined in

14  s. 320.01, is located, whether or not the owner of the mobile

15  home is an owner or lessee of the property involved, and the

16  effect of the taking of the property involved requires the

17  relocation of such mobile home, the reasonable removal or

18  relocation expenses incurred by such mobile home owner, not to

19  exceed the replacement value of such mobile home.  The

20  compensation paid to a mobile home owner under this paragraph

21  shall preclude an award to a mobile home park owner for such

22  expenses of removal or relocation.  Any mobile home owner

23  claiming the right to such removal or relocation expenses

24  shall set forth in his or her written defenses the nature and

25  extent of such expenses.  This paragraph shall not apply to

26  any governmental authority exercising its power of eminent

27  domain when reasonable removal or relocation expenses must be

28  paid to mobile home owners under other provisions of law or

29  agency rule applicable to such exercise of power.

30         Section 3.  Paragraph (g) of subsection (5) of section

31  337.25, Florida Statutes, is amended to read:

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  1         337.25  Acquisition, lease, and disposal of real and

  2  personal property.--

  3         (5)  The department may convey a leasehold interest for

  4  commercial or other purposes, in the name of the state, to any

  5  land, building, or other property, real or personal, which was

  6  acquired under the provisions of subsection (1).

  7         (g)  No lease executed under this subsection may be

  8  utilized by the lessee to establish the 3 5 years' standing

  9  required by s. 73.071(3)(c) 73.071(3)(b) if the business had

10  not been established for 3 5 years on the date title passed to

11  the department.

12         Section 4.  Subsections (2), (3), (4), and (5) of

13  section 337.27, Florida Statutes, are amended to read:

14         337.27  Exercise of power of eminent domain by

15  department; procedure; title; cost.--

16         (2)  In the acquisition of lands and property, the

17  department may acquire an entire lot, block, or tract of land

18  if, by doing so, the acquisition costs to the department will

19  be equal to or less than the cost of acquiring a portion of

20  the property. This subsection shall be construed as a specific

21  recognition by the Legislature that this means of limiting the

22  rising costs to the state of property acquisition is a public

23  purpose and that, without this limitation, the viability of

24  many public projects will be threatened.

25         (2)(3)  Title to any land acquired in the name of the

26  department vests in the state.

27         (3)(4)  The department is authorized to pay the

28  judgment or compensation, including deposits required, awarded

29  in any such proceedings out of any funds available to the

30  department for the maintenance or construction of any

31  transportation facility on the State Highway System, on the

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  1  State Park Road System, or in a transportation corridor

  2  designated by the department.

  3         (4)(5)  When the department acquires property for a

  4  transportation facility or in a transportation corridor

  5  through the exercise of eminent domain authority, or by

  6  purchase or donation, it is not subject to any liability

  7  imposed by chapter 376 or chapter 403 for preexisting soil or

  8  groundwater contamination due solely to its ownership.  This

  9  section does not affect the rights or liabilities of any past

10  or future owners of the acquired property nor does it affect

11  the liability of any governmental entity for the results of

12  its actions which create or exacerbate a pollution source.

13  The department and the Department of Environmental Protection

14  may enter into interagency agreements for the performance,

15  funding, and reimbursement of the investigative and remedial

16  acts necessary for property acquired by the department.

17         Section 5.  Subsection (5) of section 337.271, Florida

18  Statutes, is amended to read:

19         337.271  Negotiations for acquisitions.--

20         (5)  If the business owner intends to claim business

21  damages pursuant to s. 73.071(3)(b) or (c), he or she may,

22  within 120 days after receipt of the notice required by

23  subsection (2) or at a later time specified by the department,

24  submit to the department a complete estimate of business

25  damages to the property.  The fee owner may waive his or her

26  right to the 120 days to obtain an estimate of business

27  damages by providing the department with written notice of

28  such waiver.  If an estimate is submitted, it shall explain

29  the nature and extent of such damages and shall be prepared by

30  either the owner or a certified public accountant.  If the

31  business owner elects to submit an estimate of business

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  1  damages to the department, he or she shall also permit the

  2  department to copy and examine, at the owner's convenience,

  3  such of the owner's business records as the department

  4  determines to be necessary for it to arrive at an estimate of

  5  business damages.

  6         Section 6.  Paragraph (b) of subsection (1) of section

  7  127.01, Florida Statutes, is amended to read:

  8         127.01  Counties delegated power of eminent domain;

  9  recreational purposes, issue of necessity of taking.--

10         (1)

11         (b)  Each county is further authorized to exercise the

12  eminent domain powers granted to the Department of

13  Transportation by s. 337.27(1) and (2), the transportation

14  corridor protection provisions of s. 337.273, and the right of

15  entry onto property pursuant to s. 337.274.

16         Section 7.  Subsection (2) of section 166.401, Florida

17  Statutes, is amended to read:

18         166.401  Right of eminent domain.--

19         (2)  Each municipality is further authorized to

20  exercise the eminent domain powers granted to the Department

21  of Transportation in s. 337.27(1) and (2) and the

22  transportation corridor protection provisions of s. 337.273.

23         Section 8.  This act shall take effect October 1 of the

24  year in which enacted.

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  2                          HOUSE SUMMARY

  3
      Revises provisions of law relating to eminent domain to:
  4         1.  Revise provisions relating to prelitigation
      notice.
  5         2.  Revise provisions relating to the determination
      by the jury of the compensation to be paid.
  6         3.  Delete a provision allowing the Department of
      Transportation to acquire an entire lot, block, or tract
  7    of land, if, by doing so, the acquisition costs to the
      department will be equal to or less than the cost of
  8    acquiring a portion of the property.

  9
      See bill for details.
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