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


H

Senator Laurent moved the following amendment:



                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS for SB 92

    Amendment No.    

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10                                                                

11  Senator Laurent moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  Section 73.0511, Florida Statutes, is

18  amended to read:

19         73.0511  Prelitigation notice and offer of full

20  compensation.--Before an eminent domain action is initiated

21  under chapter 73 or chapter 74 Prior to instituting

22  litigation, the condemning authority shall notify the fee

23  owners appearing of record on the date the offer is made of

24  their statutory rights under s. 73.091 and shall make a

25  written offer of full compensation for the property to be

26  acquired and any damages to the remainder caused by the

27  taking, naming the fee owners to whom it is made. The notice

28  and written offer must be sent to the fee owners' last known

29  address listed on the county ad valorem tax roll. Notice to

30  one fee owner constitutes notice to all fee owners on

31  multiple-ownership property. This section may not be

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 1  interpreted as shifting the burden of proof of either the

 2  condemning authority or fee owners at a valuation trial under

 3  chapter 73 or chapter 74, as otherwise provided by law. The

 4  governmental condemning authority is not required to give

 5  notice to a person who acquires title to the property

 6  subsequent to the notice required by this section.

 7         Section 2.  Subsection (2) of section 337.27, section

 8  337.271, subsection (2) of section 348.0008, subsection (2) of

 9  section 348.759, and subsection (2) of section 348.957,

10  Florida Statutes, are repealed.

11         Section 3.  Subsection (6) is added to section 253.82,

12  Florida Statutes, to read:

13         253.82  Title of state or private owners to Murphy Act

14  lands.--

15         (6)(a)  All reservations of easements on deeds by the

16  Board of Trustees of the Internal Improvement Trust Fund

17  conveying land acquired under chapter 18296, Laws of Florida,

18  1937, are hereby vested by operation of law, and without the

19  necessity of instruments of conveyance from the Board of

20  Trustees of the Internal Improvement Trust Fund, in the

21  governmental entity having right and title to the road to

22  which the reservations are adjacent. All reservations adjacent

23  to a road that was designated as a state road at the time of

24  the reservation, which road is currently held by the state,

25  are conveyed to the Department of Transportation. All

26  reservations adjacent to a road that was designated as a state

27  road at the time of the reservation, which road is located in

28  an unincorporated area of a county or owned by the county

29  within any incorporated area, are conveyed to the respective

30  county. All other reservations within an incorporated area

31  adjacent to a road that was designated as a state road at the

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 1  time of the reservation, which reservations are not otherwise

 2  conveyed to the state or the county, are conveyed to the

 3  incorporated area. The conveyance includes all right, title,

 4  and interest in the reservation held by the Board of Trustees

 5  of the Internal Improvement Trust Fund.

 6         (b)  Every entity that holds title to Murphy Act

 7  reservations must establish a procedure for reviewing any deed

 8  that contains a reservation when a review is requested or a

 9  road project is anticipated. The review process must provide

10  for:

11         1.  A determination of whether the language of the deed

12  created a reservation at the time of the original conveyance.

13         2.  A review of any release of the reservation provided

14  by the property owner.

15         3.  The recording of a notice of the nonexistence of a

16  reservation if reservation language in the deed does not

17  impact the property.

18         4.  A determination of whether any or all of the

19  reservation may be released, and a form for recording the

20  release.

21         5.  A process to allow for review through mediation if

22  requested by the property owner or through binding arbitration

23  pursuant to chapter 44.

24

25  Any fee charged may not exceed the actual cost to review the

26  deed, perform an appeal, and pay any recording expenses. Any

27  such fee may not exceed $300.

28         (c)1.  Any owner of property encumbered by a Murphy Act

29  road reservation who has been denied a release of all or part

30  of the reservation or who has received notice of a

31  governmental entity's intent to preserve the reservation under

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 1  s. 712.05 may appeal to the entity and show that the

 2  reservation substantially denies the property owner the

 3  current economic use of the property held by the owner. For

 4  purposes of this determination, the term "current economic

 5  use" means the use of the property on the date notice of the

 6  easement is filed under s. 712.05.

 7         2.  Upon a determination by the governmental entity

 8  that the reservation substantially denies the property owner

 9  the current economic use of the property held by the owner,

10  the governmental entity must purchase the real property and

11  improvements not retained by the property owner in fee simple

12  title or release all or part of the reservation as necessary

13  to allow for beneficial use of the property.

14         3.  If the governmental entity and property owner are

15  unable to agree as to whether the reservation substantially

16  denies the current economic use of the property or as to the

17  purchase price, the property owner may request mediation or

18  binding arbitration under chapter 44 to resolve these issues.

19         4.  Before the payment of any compensation, the

20  property owner must provide the governmental entity copies of

21  any title insurance policies and notice of any compensation

22  received from a title company related to the easement.

23         (7)  The process for release of any road reservation

24  covered by this section or payment for property impacted by

25  the use of a reservation covered by this section must be

26  solely in accordance with this section. Any action for the

27  taking of property related to road construction is separate

28  and distinct from an action under this section.

29         (8)  The governmental entity is not liable for

30  attorney's fees or costs incurred by the owner in establishing

31  the impact of the road reservation on the property.

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                                                  SENATE AMENDMENT

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 1         Section 4.  Section 712.04, Florida Statutes, is

 2  amended to read:

 3         712.04  Interests extinguished by marketable record

 4  title.--Subject to the matters stated in s. 712.03, such

 5  marketable record title shall be free and clear of all

 6  estates, interests, claims, or charges whatsoever, the

 7  existence of which depends upon any act, title transaction,

 8  event or omission that occurred prior to the effective date of

 9  the root of title.  All such estates, interests, claims, or

10  charges, however denominated, whether such estates, interests,

11  claims, or charges are or appear to be held or asserted by a

12  person sui juris or under a disability, whether such person is

13  within or without the state, whether such person is natural or

14  corporate, or is private or governmental, are hereby declared

15  to be null and void, except that this chapter shall not be

16  deemed to affect any right, title, or interest of the United

17  States, Florida, or any of its officers, boards, commissions,

18  or other agencies reserved in the patent or deed by which the

19  United States, Florida, or any of its agencies parted with

20  title. However, all reservations of easements in deeds by the

21  Trustees of the Internal Improvement Trust Fund conveying land

22  acquired under chapter 18296, Laws of Florida, 1937, shall be

23  extinguished by the Marketable Record Title Act on July 1,

24  2001, subject to the provisions of s. 712.03, and further

25  subject to the right of any governmental entity that holds

26  title to the reservations to preserve such reservations as are

27  necessary for future transportation projects in adopted

28  transportation plans by filing notice under s. 712.05 before

29  July 1, 2001.

30         Section 5.  Subsection (3) is added to section 712.05,

31  Florida Statutes, to read:

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 1         712.05  Effect of filing notice.--

 2         (3)  Any governmental entity that claims a road

 3  reservation pursuant to a deed conveyed under the Murphy Act

 4  may preserve the reservation or any portion thereof necessary

 5  for future transportation projects in adopted transportation

 6  plans and protect the reservation from extinguishment by the

 7  operation of this chapter by filing for record, prior to July

 8  1, 2001, a notice, in writing, in accordance with the

 9  provisions of this chapter. The notice preserves the

10  reservation or portion thereof for 10 years following the date

11  of record if the reservation is used or identified by the

12  governmental entity in the final design plans of a road

13  project scheduled for construction to begin before the end of

14  the 10-year period. Any reservation used or identified in the

15  final design plans of a road project scheduled for

16  construction to begin before the end of the 10-year period is

17  not extinguished.

18         Section 6.  Subsection (3) is added to section 479.15,

19  Florida Statutes, to read:

20         479.15  Harmony of regulations.--

21         (3)  It is the express intent of the Legislature to

22  limit the state right-of-way acquisition costs in eminent

23  domain proceedings by preempting county and municipal

24  regulation of outdoor advertising signs located adjacent to

25  any part of the state highway system when the state is making

26  improvement to such highways, the provisions of s. 479.155

27  notwithstanding. Whenever land is acquired upon which is

28  situated a lawful nonconforming sign, the sign may, upon

29  receiving a waiver from federal regulations and at the

30  election of its owner, be relocated or reconstructed adjacent

31  to the new right-of-way at the same station along the roadway

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 1  and any local ordinance to the contrary is preempted.

 2         Section 7.  (1)  The Legislature finds that balancing

 3  the property and business interests of private citizens with

 4  costs of advancing the public purposes of governmental

 5  projects is an important function of the Legislature.

 6  Therefore, the Legislature creates and establishes a study

 7  panel on eminent domain to make an assessment of the current

 8  administration of the exercise of the eminent domain power by

 9  state and local governments, to identify issues of fairness

10  and justice in the protection of property and business rights

11  upon the acquisition for public good, to analyze the

12  feasibility of establishing procedures or programs to assist

13  property or business owners adversely affected by

14  transportation projects when demonstrating actual loss, and to

15  ascertain any potential increase or decrease in the costs of

16  right-of-way acquisition upon any proposed legislative

17  recommendation. In carrying forth its stated purpose, the

18  study panel will provide and address:

19         (a)  A brief jurisprudential history of the basis of

20  the power of eminent domain vis a vis property and business

21  rights, constitutional or otherwise.

22         (b)  A study of the frequency of acquisition by

23  voluntary purchase prior to the filing of an eminent domain

24  lawsuit rather than acquisition by lawsuit for transportation

25  projects in which acquisition of title took place between

26  January 1, 1997, and December 31, 1997, identifying whether

27  acquisition included any business interests in addition to

28  property interests and whether an initial offer was made by

29  the condemning authority.

30         (c)  A study of right-of-way costs per parcel for

31  transportation projects in which acquisition of title took

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 1  place between January 1, 1997, and December 31, 1997,

 2  comparing the amount of any initial offer with the amount of

 3  settlement; identifying whether settlement occurred prior to

 4  lawsuit, in litigation prior to jury trial, or by jury trial;

 5  identifying any stipulated allocations between the amounts

 6  reimbursed to a property or business owner for property,

 7  business damages, attorney's fees and costs, or expert costs;

 8  and identifying any allocations between administrative costs

 9  or expert costs expended by the condemning authority.

10         (d)  A study of the appraisal methodology employed by

11  condemning authorities for the valuation of real estate with

12  the highest and best use in agriculture for acquisitions in

13  which title vested or purchase contracts were agreed to

14  between January 1, 1997, and December 31, 1997.

15         (e)  A study of the frequency with which the property

16  owner received compensation for a substantial diminution of

17  access to the exclusion of a business owner in transportation

18  projects in which acquisition of title took place between

19  January 1, 1997, and December 31, 1997.

20         (f)  A study of the frequency of the number of whole

21  takings relative to the number of partial takings in

22  transportation projects in which acquisition of title took

23  place between January 1, 1997, and December 31, 1997.

24         (g)  A study of the feasibility of potential programs

25  for assisting businesses adversely affected by transportation

26  projects, including, but not limited to:

27         1.  Business loan programs with low or no interest.

28         2.  Business grant programs.

29         3.  Credits for, and exemptions from, taxes or fees for

30  impacted businesses.

31         4.  Use of state surcharges on local fuel tax revenues

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 1  to fund local business assistance programs.

 2         5.  Use of alternative dispute resolution approaches to

 3  resolving business damage claims.

 4         6.  Provision by statute or constitutional amendment to

 5  further protect business rights when affected by eminent

 6  domain.

 7         (h)  A study of alternative approaches to business

 8  damages which would make the business owner whole.

 9         (i)  A study of the costs of eminent domain actions in

10  this state, including property and business damage

11  compensation and attorney's fees, as compared to the costs

12  under the federal system and that of other states.

13         (j)  Any other aspects of eminent domain deemed

14  appropriate by the study panel.

15         (2)  When not otherwise specifically provided, the

16  study panel shall establish guidelines or parameters of the

17  studies in subsection (1) so that the studies are not

18  exhaustive, but maintain representative statistical accuracy.

19  In order for the study panel to receive input, and to assist

20  it in its evaluations and its formulation of recommendations,

21  the study panel may establish one or more technical or other

22  special advisory committees. The advisory committees may

23  include study panel or non-study panel members, including

24  representatives of those industries that may be affected by

25  the study panel's recommendations. Study panel and non-study

26  panel members of any technical or other special advisory

27  committees may not receive remuneration for their services.

28  Study panel members shall be reimbursed for travel and

29  expenses in accordance with chapter 112, Florida Statutes, to

30  the extent that funds are available for this purpose. Public

31  officers and employees shall be reimbursed by their respective

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 1  agencies in accordance with chapter 112, Florida Statutes.

 2  Costs for the study panel shall be funded in the Department of

 3  Transportation's adopted 5-year work program. The department

 4  may contract with the Florida Conflict Resolution Consortium

 5  and Florida State University. All state agencies are requested

 6  to provide assistance to the study panel as necessary to

 7  accomplish the purposes set forth for the study panel in this

 8  act.

 9         (3)  The study panel shall consist of the following

10  members:

11         (a)  A representative of the Department of

12  Transportation, a representative of the Department of Banking

13  and Finance, a representative of the Association of Counties,

14  a representative of the League of Cities, a representative of

15  the Florida Metropolitan Planning Organization, a

16  representative of the Office of the Attorney General, a

17  representative of either the St. Johns River Water Management

18  District or the South Florida Water Management District, and a

19  representative of the Florida Transportation Commission, all

20  to be appointed by the Governor.

21         (b)  A member of the Florida Senate, a representative

22  of the Florida Transportation Builders Association, a

23  representative of the Florida Petroleum Council, a

24  representative of the Florida Retail Federation, a

25  representative of the Florida Division of the National

26  Federation of Independent Businesses, a representative of the

27  Florida Restaurant Association, and a representative of the

28  Eminent Domain Committee of the Academy of Florida Trial

29  Lawyers, all to be appointed by the President of the Senate.

30         (c)  A member of the Florida House of Representatives,

31  a representative of the Florida Petroleum Marketers

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 1  Association, a representative of the Florida United Businesses

 2  Association, a representative of the Florida Farm Bureau

 3  Federation, a representative of the Florida Property Rights

 4  Coalition, a representative of the Florida Chamber of

 5  Commerce, and a representative of the Florida Bar Eminent

 6  Domain Committee, all to be appointed by the Speaker of the

 7  House of Representatives.

 8         (4)  The study panel shall hold at least two public

 9  hearings, one of which shall be outside Tallahassee, and shall

10  seek public comment and input. The study panel shall submit a

11  written report to the Governor, the President of the Senate,

12  and the Speaker of the House of Representatives on its

13  findings and any recommendations for proposed legislation no

14  later than December 31, 1999.

15         Section 8.  The Legislature finds that balancing

16  property and business interests of private citizens and

17  governmental entities is an important function of the

18  Legislature.  Likewise, the Legislature finds that, in the

19  balancing of those interests, prelitigation offers of

20  compensation assist in reducing the costs of acquisition; that

21  an entire lot, block, or tract of land should be acquired only

22  when the public purpose and necessity are related to the

23  engineering needs of a project and not the saving of

24  acquisition costs to the detriment of business owners; that

25  orderly procedures for the transference of deeds under the

26  Murphy Act should be established to save administrative costs;

27  that provision should be made for the underlying fee owner to

28  be eligible for compensation for the denial of economic use

29  caused by the exercise of a reservation pursuant to deeds

30  under the Murphy Act; and that local ordinances regulating

31  outdoor advertising signs should be preempted upon relocation

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 1  of an outdoor advertising sign resulting from the acquisition

 2  of right-of-way. Therefore, the Legislature finds that this

 3  act fulfills an important state interest.

 4         Section 9.  Subsection (1) of section 337.19, Florida

 5  Statutes, is amended to read:

 6         337.19  Suits by and against department; limitation of

 7  actions; forum.--

 8         (1)  Suits at law and in equity may be brought and

 9  maintained by and against the department on any contract claim

10  arising from the breach of an express provision or an implied

11  covenant of a written agreement or a written directive issued

12  by the department pursuant to the written agreement. In any

13  such suit, the department and the contractor shall have all of

14  the same rights, obligations, remedies, and defenses as a

15  private person under a like contract, except that no liability

16  may be based on an oral modification of the written contract

17  or written directive. However, this section shall not be

18  construed to in any way prohibit the department from limiting

19  its liability or damages through provisions in its contracts.

20  Notwithstanding anything to the contrary contained herein, no

21  employee or agent of the department may be held personally

22  liable to an extent greater than that provided under s. 768.28

23  under contract for work done; provided, that no suit sounding

24  in tort shall be maintained against the department.

25         Section 10.  Section 704.01, Florida Statutes, is

26  amended to read:

27         (Substantial rewording of section. See

28         s. 704.01, F.S., for present text.)

29         704.01  Common-law and statutory easements of

30  necessity.--

31         (1)  IMPLIED GRANT OF WAY OF NECESSITY.--The common-law

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 1  rule of an implied grant of necessity is recognized, adopted,

 2  and modified as follows:  An implied grant exists when a

 3  grantor has conveyed or hereafter conveys lands to which there

 4  is not reasonable legal access except over lands retained by

 5  the grantor, or when the grantor has retained or hereafter

 6  retains lands to which there is no reasonable legal access

 7  except over lands that the grantor has conveyed. An implied

 8  grant arises only when a unity of title exists from a common

 9  source other than the original grant from the state or the

10  United States. An implied grant is unaffected by subsequent

11  transfer of either the dominant or servient estate, include

12  involuntary transfers, such as tax deeds, foreclosures, or

13  reversions.

14         (2)  STATUTORY WAY OF NECESSITY.--Based on public

15  policy, convenience, and necessity, a statutory way of

16  necessity exists when any land does not have reasonable legal

17  access and no common-law implied grant of way of necessity

18  exists.

19         (3)  EXTENT OF WAY OF NECESSITY.--

20         (a)  For the purposes of subsections (1) and (2), the

21  way of necessity shall be by the shortest route that provides

22  reasonable legal access between the portion of the dominant

23  estate most in need of the way and the public road nearest

24  thereto; provided, however, that the route of an implied way

25  of necessity to be created pursuant to subsection (1) shall

26  take into consideration any increase in the burden upon the

27  servient estate since the severance of unity of title arising

28  as a result of the creation thereof, and the route of a

29  statutory way of necessity to be created under subsection (2)

30  shall take into consideration the new burden upon the servient

31  estate arising as a result of the creation thereof.

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 1         (b)  As used in this section, the term "reasonable

 2  legal access:"

 3         1.  If the dominant estate is within a municipality,

 4  means legal access over land which reasonably satisfies all of

 5  the requirements for the beneficial use and enjoyment of the

 6  dominant estate; and

 7         2.  If the dominant estate is not within a

 8  municipality, means legal access over land other than by way

 9  of a bridge, turnpike road, embankment, or substantial fill.

10

11  For the purposes of subparagraph 1., the fact that there

12  exists some form of legal access to the dominant estate does

13  not preclude the establishment of a way of necessity if that

14  existing access is of such a nature that it does not

15  constitute reasonable legal access by satisfying all of the

16  reasonable requirements for the beneficial use and enjoyment

17  of the dominant estate.

18         (c)  The way of necessity under either subsection (1)

19  of subsection (2) may also be used for franchised cable

20  television service and necessary utility services, including,

21  but not limited to, water, wastewater, reclaimed water,

22  natural gas, electricity, or telephone service.

23         Section 11.  Section 704.03, Florida Statutes, is

24  repealed.

25         Section 12.  Section 704.04, Florida Statutes, is

26  amended to read:

27         704.04  Judicial remedy and compensation to servient

28  owner.--When the owner or owners of such lands across which a

29  statutory way of necessity under s. 704.01(2) is claimed,

30  exclusive of the common-law right, objects or refuses to

31  permit the use of such way under the conditions set forth

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 1  herein or until she or he receives compensation therefor,

 2  either party or the board of county commissioners of such

 3  county may file suit in the circuit court of the county

 4  wherein the land is located in order to determine if the claim

 5  for said easement exists, and the amount of compensation to

 6  which said party is entitled for use of such easement.  Where

 7  said easement is awarded to the owner of the dominant

 8  tenement, it shall be in compliance with s. 704.01(2) and

 9  shall exist so long as such easement is reasonably necessary

10  for the purposes stated herein. The court, in its discretion,

11  shall determine all questions, including the type, duration,

12  extent, and location of the easement, the amount of

13  compensation, and the attorney's fees and costs to be awarded

14  to either party for unreasonable refusal to comply with the

15  provisions of s. 704.01(2) provided that if either of said

16  parties so requests in her or his original pleadings, the

17  amount of compensation may be determined by a jury trial.  The

18  easement shall date from the time the award is paid. A way of

19  necessity created pursuant to this section shall be evidenced

20  by a written instrument, which may be the final judgment,

21  which is placed of record and contains a legally sufficient

22  description of the easement, the dominant estate, and the

23  servient estate.

24         Section 13.  Section 1 of this act shall take effect

25  January 1, 1999; section 2 of this act shall take effect July

26  1, 1998, for eminent domain actions filed after July 1, 1998;

27  and all other sections of this act, unless otherwise provided,

28  shall take effect upon this act becoming a law.

29

30

31

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 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3         Delete everything before the enacting clause

 4

 5  and insert:

 6                      A bill to be entitled

 7         An act relating to the acquisition of interests

 8         in land; amending s. 73.0511, F.S.; providing

 9         requirements with respect to prelitigation;

10         providing prelitigation notice to fee owners;

11         providing for prelitigation offer to fee

12         owners; repealing s. 337.27(2), F.S., which

13         provides for the acquisition of lands and

14         property; repealing s. 337.271, F.S., which

15         provides for negotiations for acquisitions by

16         the Department of Transportation; repealing s.

17         348.0008, F.S., which provides for the

18         acquisition of lands and property in the

19         Florida Expressway Authority Act; repealing s.

20         348.759(2), F.S., which provides for the

21         acquisition of lands or property by the

22         Orlando-Orange County Expressway Authority;

23         repealing s. 348.957(2), F.S., which provides

24         for the acquisition of lands or property by the

25         Seminole County Expressway Authority; amending

26         s. 253.82, F.S.; providing for all

27         transportation easements acquired under the

28         Murphy Act to be conveyed to the Department of

29         Transportation or the governmental entity

30         currently having title to the adjacent roadway;

31         requiring the establishment of a procedure for

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS for SB 92

    Amendment No.    





 1         review of deeds containing transportation

 2         reservations acquired under the Murphy Act;

 3         setting requirements for the review process;

 4         providing compensation for certain property

 5         owners where the reservation denies current

 6         economic use of the property; providing for

 7         mediation or arbitration; amending ss. 712.04,

 8         712.05, F.S.; providing for the release of

 9         certain easements held by governmental

10         entities; providing for preservation of certain

11         road easement reservations scheduled to begin

12         within a specified period; amending s. 479.15,

13         F.S.; providing for the preemption of local

14         ordinances regulating outdoor advertising signs

15         upon relocation after acquisition of

16         right-of-way; creating an eminent domain study

17         panel; providing for the membership of the

18         study panel; requiring a report to the Governor

19         and Legislature; amending s. 337.19, F.S.;

20         authorizing suits to be brought against the

21         department for the breach of an expressed

22         provision or an implied covenant; providing

23         that liability may not be based on an oral

24         modification of a written contract; amending

25         ss. 704.01 and 704.04, F.S.; providing for an

26         implied grant of way of necessity and a

27         statutory way of necessity for cable television

28         and other utility services; repealing s.

29         704.03, F.S., which defines the term

30         "practicable" for purposes of laws relating to

31         easements; providing effective dates.

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