Senate Bill 0092c2

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    Florida Senate - 1998                      CS for CS for SB 92

    By the Committees on Governmental Reform and Oversight,
    Judiciary and Senators Grant, Casas, Bronson and Kirkpatrick




    306-1697-98

  1                      A bill to be entitled

  2         An act relating to eminent domain; amending s.

  3         73.0511, F.S.; providing for a dispute

  4         resolution process; providing for notice to fee

  5         owners and business owners; providing for an

  6         exchange of appraisals, right-of-way maps, and

  7         construction plans with fee owners and business

  8         owners; providing for an initial concern letter

  9         and conference; providing for disclosure of

10         business records; providing for an offer of

11         business damages and a counteroffer; providing

12         for negotiation, mediation, and settlement in

13         lieu of condemnation; amending s. 73.071, F.S.;

14         providing criteria for compensation by jury;

15         repealing s. 337.27(2), F.S., relating to the

16         exercise of the power of eminent domain by the

17         Department of Transportation; repealing ss.

18         348.0008(3), 348.759(3), 348.957(3), F.S.,

19         relating to the exercise of eminent domain

20         power by expressway and bridge authorities;

21         providing a finding of important state

22         interest; providing an effective date.

23

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

25

26         Section 1.  Effective January 1, 1999, section 73.0511,

27  Florida Statutes, is amended to read:

28         73.0511  Dispute resolution Prelitigation notice.--

29         (1) Notice to fee owners and offer of full

30  compensation.--

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    Florida Senate - 1998                      CS for CS for SB 92
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  1         (a) Before an eminent domain action is initiated under

  2  chapter 73 or chapter 74 Prior to instituting litigation, the

  3  condemning authority shall notify the fee owners, appearing of

  4  record on the date the offer is made, of their statutory

  5  rights under s. 73.091 and shall make a written offer of full

  6  compensation as to those elements provided in s. 73.071(3)(a)

  7  and (b), naming the fee owners to whom it is made. The notice

  8  and written offer must be sent by certified mail, return

  9  receipt requested.

10         (b)  The condemning authority may include with the

11  notice and written offer a request for information from the

12  fee owners limited to identification of any tenants or onsite

13  operators of businesses existing as of the date the offer is

14  made.  If such a request for information is made by the

15  condemning authority, the fee owners shall respond in writing

16  within 30 days, listing the name, address, and contact person

17  of each tenant or onsite operator of a business to the extent

18  that such information is known to the fee owners.  Information

19  provided under this subsection will assist the condemning

20  authority in notification procedures required by chapters 73

21  and 74, but shall not waive compliance by the condemning

22  authority with such notification procedures.

23         (2)  Exchange of appraisals, right-of-way maps, and

24  construction plans with fee owners; initial concern letter;

25  initial concern conference.--

26         (a)  After the notice and written offer provided in

27  paragraph (1)(a) is made, the fee owner may request of a

28  governmental condemning authority by certified mail, return

29  receipt requested, a copy of the most current appraisal,

30  right-of-way maps, and construction plans pertaining to the

31  property upon which the written offer is based.  The

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  governmental condemning authority shall provide the appraisal,

  2  maps, and plans within 15 days after the fee owners' request

  3  and, at that time, may make a written request by certified

  4  mail, return receipt requested, for an initial concern letter

  5  from the fee owners citing to the specific language of

  6  paragraph (c). However, with respect to lands acquired under

  7  s. 259.041, the condemning authority is not required to give

  8  the fee owners the current appraisal before execution of an

  9  option contract to purchase the property.

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

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

12  to the governmental condemning authority a copy of the most

13  current appraisal of the property, if any, prepared during the

14  prior 3 years which is within the possession or control of the

15  owner.

16         (c)  Within 30 days after receipt of the governmental

17  condemning authority's right-of-way maps and construction

18  plans, the fee owners shall provide to the governmental

19  condemning authority by certified mail, return receipt

20  requested, a letter that sets forth the fee owners' initial

21  concerns, if any, regarding the design of the proposed project

22  from a preliminary review of the maps and plans.  The letter

23  is without prejudice to the fee owners in negotiations or in

24  the event that a lawsuit is filed.  The letter may not be

25  introduced into evidence by the condemning authority in

26  proceedings under s. 73.071.

27         (d)  After the initial concern letter is provided by

28  the fee owners to the governmental condemning authority,

29  either the fee owners or the governmental condemning authority

30  may make a written request of the other by certified mail,

31  return receipt requested, for a conference limited to the

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  1  concerns set forth in the letter.  If the request is made by

  2  the condemning authority, the condemning authority shall again

  3  notify the fee owners of their statutory rights under s.

  4  73.091 within the written request.  The fee owners and the

  5  governmental condemning authority shall make representatives

  6  available for the conference within 60 days following the

  7  written request.

  8         (3)  Notice to business owners.--

  9         (a)  Before an eminent domain action is initiated under

10  Chapters 73 or 74, when the action is by the Department of

11  Transportation, or by a county, municipality, board, district

12  or other public body for the condemnation of a right-of-way,

13  the governmental condemning authority shall notify the

14  business owners located on the property upon which the written

15  offer provided in paragraph (1)(a) is based of their statutory

16  rights under s. 73.091. The notice must be sent by certified

17  mail, return receipt requested.

18         (b)  Before an inverse condemnation action is initiated

19  by a business owner claiming that an inverse taking of

20  property directly results in damage to a business as set forth

21  in s. 73.071(3)(c), the business owner and governmental

22  condemning authority shall comply with this section with the

23  exception of the notice provision provided in paragraph

24  (1)(a).

25         (4)  Exchange of appraisals, right-of-way maps, and

26  construction plans with business owners; initial concern

27  letter; initial concern conference.--

28         (a)  After the notice provided in subsection (3) is

29  made, the business owners may request of a governmental

30  condemning authority by certified mail, return receipt

31  requested, a copy of the most current appraisal, right-of-way

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  maps, and construction plans pertaining to the property upon

  2  which the written offer provided in paragraph (1)(a) is based.

  3  The governmental condemning authority shall provide the

  4  appraisal, maps, and plans within 15 days after the business

  5  owners' request and, at that time, may make a written request

  6  for an initial concern letter from the business owners citing

  7  to the specific language of paragraph (b).

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

  9  condemning authority's right-of-way maps and construction

10  plans, the business owners shall provide to the governmental

11  condemning authority a letter that sets forth the business

12  owners' initial concerns, if any, regarding the design of the

13  proposed project from a preliminary review of the maps and

14  plans.  The letter is without prejudice to the business owners

15  in negotiations or in the event that a lawsuit is filed.  The

16  letter may not be introduced into evidence by the condemning

17  authority in proceedings under s. 73.071.

18         (c)  After the initial concern letter is provided by

19  the business owners to the governmental condemning authority,

20  either the business owners or the governmental condemning

21  authority may make a written request by certified mail, return

22  receipt requested, of the other for a meeting limited to the

23  concerns set forth in the letter.  If the request is made by

24  the condemning authority, the condemning authority shall again

25  notify the business owners of their statutory rights under s.

26  73.091 within the written request.  The business owners and

27  the governmental condemning authority shall make

28  representatives available for the meeting within 60 days

29  following the written request.

30         (5)  Disclosure of business records.--

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    Florida Senate - 1998                      CS for CS for SB 92
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  1         (a)  After a governmental condemning authority tenders

  2  a written offer under paragraph (1)(a) and notifies the

  3  business owners under subsection (3), the governmental

  4  condemning authority may obtain from the business owners a

  5  copy of the business records kept, in the ordinary course of

  6  business, within the possession or control of the business

  7  owners, as set forth in this subsection.

  8         (b)  For the purposes of this section and s.

  9  73.092(1)(a)2., the term "business records" means copies of

10  federal income tax returns, federal income tax withholding

11  statements, federal miscellaneous income tax statements, state

12  sales tax returns, balance sheets, profit and loss statements,

13  and state corporate income tax returns attributable to the

14  business operation on the property to be acquired for the 3

15  years preceding notification.  If any of these records are

16  consolidated with records of other business operations not on

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

18  alternative that edited portions of the business records

19  attributable to the business operation on the property to be

20  acquired for the 3 years preceding notification be provided in

21  addition to a signed acknowledgment from the business owner.

22         (c)  The governmental condemning authority's request

23  for business records must be in writing and must define

24  "business records" within such request with citation to the

25  specific language of paragraph (b) in its entirety and include

26  a notice of penalty for noncompliance with citation to the

27  specific language of this paragraph in its entirety.  If the

28  condemning authority's request for business records is not

29  included with a notice under subsection (3), the request must

30  also be accompanied by notice of statutory rights under s.

31  73.091.  The condemning authority shall not make a request for

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  business records of a business owner more often than once

  2  before a lawsuit is filed. The written request must be sent by

  3  certified mail, return receipt requested.

  4         (d)  Failure of a business owner to provide in good

  5  faith a copy of the business records kept, in the ordinary

  6  course of business, as defined in paragraph (b), within the

  7  possession or control of the business owner, within 60 days

  8  after the condemning authority's written request, precludes

  9  the business owner from recovery of any accountant's fee for

10  estimating business damages otherwise provided in paragraph

11  (7)(c) or s. 73.091.

12         (e)  After a copy of the business records is provided

13  by the business owners to the governmental condemning

14  authority, the condemning authority may make a written request

15  by certified mail, return receipt requested, of the business

16  owners for a business records conference.  Within the written

17  request, the condemning authority shall again notify the

18  business owners of their statutory rights under s. 73.091 and

19  itemize questions regarding the business records provided by

20  the business owners.  The business owners and the condemning

21  authority shall make representatives available for the

22  conference, which must be limited to a discussion of those

23  questions itemized in the condemning authority's written

24  request, within 60 days following the written request.

25         (6)  Offer of business damages; counteroffer.--

26         (a)  If a business owner provides a copy of business

27  records as set forth in paragraph (5)(b), the governmental

28  condemning authority shall make a written offer in settlement

29  of business damages as to those elements provided in s.

30  73.071(3)(c) before an eminent domain action is initiated

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  under chapter 73 or chapter 74.  The written offer must be

  2  sent by certified mail, return receipt requested.

  3         (b)  Within 60 days after receipt of the written offer

  4  of business damages provided in paragraph (a), the business

  5  owners shall make a written counteroffer in settlement of

  6  business damages as to those elements provided in s.

  7  73.071(3)(c).  The written counteroffer must be sent by

  8  certified mail, return receipt requested.

  9         (c)  If an eminent domain action is initiated under

10  chapter 73 or chapter 74, the amount of the written offer of

11  business damages provided in paragraph (a) shall be deposited

12  by the governmental condemning authority into the court

13  registry, available for withdrawal by the business owners to

14  whom the offer was made, prior to the vesting of title to the

15  property acquired.

16         (7)  Negotiations; mediation; settlement in lieu of

17  condemnation.--

18         (a)  The condemning authority, together with the

19  property and business owners potentially impacted by the

20  condemnation of property necessarily acquired for a public

21  purpose, shall negotiate in good faith.

22         (b)  Subsequent to the condemning authority making an

23  offer under paragraph (1)(a) or paragraph (6)(a), the party to

24  whom the offer was made may make a written request by

25  certified mail, return receipt requested, to have mediation

26  presided over by a mediator certified under s. 44.102.

27  Mediation must occur within 60 days of the written request.

28  The party requesting the mediation shall have a representative

29  with authority present at mediation to bind the property or

30  business owners.  The condemning authority shall have a

31  representative with authority present at mediation to bind the

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  condemning authority in settlement, subject, if applicable, to

  2  the approval of the elected governing board or council in the

  3  case of a unit of local government or to the approval of the

  4  agency head or his or her designee in the case of a state

  5  agency.  The condemning authority shall also have a

  6  representative with authority present at mediation to bind the

  7  condemning authority in settlement regarding access management

  8  or the engineering design of the project for which property is

  9  to be acquired.  Either the party to whom the offer was made

10  or the condemning authority may notice other interested

11  parties with rights of apportionment otherwise provided under

12  s. 73.101 to be present at the mediation.  Evidence of

13  negotiations or any written or oral statements made in

14  mediation is not admissible in any subsequent legal

15  proceedings.

16         (c)  If a settlement is reached between the condemning

17  authority and a property or business owner prior to a lawsuit

18  being filed, the property or business owner who settles

19  compensation claims in lieu of condemnation is entitled to

20  recover costs as provided in s. 73.091 and attorney's fees as

21  provided in s. 73.092(1) or, for any settlement in an amount

22  under $100,000, as provided in s. 73.092(2)(a)-(f). The

23  property or business owner may file a complaint in circuit

24  court in the county in which the property to be acquired is

25  located to recover costs and attorney's fees from the

26  condemning authority as provided in this subsection.

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

28  Statutes, is amended to read:

29         73.071  Jury trial; compensation; severance damages.--

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

31  compensation to be paid, which compensation shall include:

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    Florida Senate - 1998                      CS for CS for SB 92
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  1         (a)  The value of the property sought to be

  2  appropriated.; When the use of the property sought to be

  3  acquired is an agricultural operation as defined in s.

  4  570.02(1), income from farming is attributable to real estate.

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

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

  7  taking., including,

  8         (c)  When the action is by the Department of

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

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

11  effect of the taking of the property involved or substantial

12  diminution of access may damage or destroy an established

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

14  location, owned and operated at that location by the party

15  whose property is being taken or whose access is being

16  substantially diminished lands are being so taken, located

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

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

19  property so taken or access substantially diminished may

20  reasonably cause; any person claiming the right to recover

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

22  defenses the nature and extent of such damages.; and The total

23  compensation awarded for business damages may not exceed the

24  fair-market value of the business and reasonable moving

25  expenses.

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

27  business damages on site or by relocating all or part of the

28  business to an adjacent property or to another comparable

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

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

31  business damages claimed. Any increased costs of operation and

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  reasonable expenses of mitigation resulting from the onsite

  2  mitigation plan or from the relocation of the business to

  3  another comparable location in the same market trade area,

  4  together with moving costs, downtime losses, and unmitigated

  5  damages, may be included when determining severance damages,

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

  7  claimant.

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

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

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

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

12  effect of the taking of the property involved requires the

13  relocation of such mobile home, the reasonable removal or

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

15  exceed the replacement value of such mobile home.  The

16  compensation paid to a mobile home owner under this paragraph

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

18  expenses of removal or relocation.  Any mobile home owner

19  claiming the right to such removal or relocation expenses

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

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

22  any governmental authority exercising its power of eminent

23  domain when reasonable removal or relocation expenses must be

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

25  agency rule applicable to such exercise of power.

26         Section 3.  The Legislature finds that a proper and

27  legitimate state purpose is served when business owners are

28  extended a fair and reasonable valuation of their property and

29  given compensation for damages to their businesses or

30  diminution of access caused by governmental condemning

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    Florida Senate - 1998                      CS for CS for SB 92
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  1  authorities. Therefore, the Legislature determines and

  2  declares that this act fulfills an important state interest.

  3         Section 4.  Subsection (2) of section 337.27,

  4  subsection (3) of section 348.008, subsection (3) of section

  5  348.759, and subsection (3) of section 348.957, Florida

  6  Statutes, are repealed.

  7         Section 5.  Except as otherwise provided in this act,

  8  this act shall take effect June 30, 1998, and shall be

  9  applicable only to actions in which orders of taking under

10  chapter 73 or chapter 74 are entered after June 30, 1998.

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12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                             CS/SB 92

14

15  CS for CS/SB 92 removes a public records exemption contained
    in its prior version; incorporates an "Important State
16  Interest" clause to bring the bill into compliance with
    Article VII, Section 18, State Constitution; repeals three
17  additional sections of current law which provide separate
    eminent domain authority for designated expressway
18  authorities; and reinstates to current law a provision in the
    prior CS which reduced the statutory attorney fee schedule.
19  The CS for the CS also eliminates reimbursement for owner
    accounting fees should the owner not provide any business
20  records to the condemning authority. Further changes to the
    offer/counteroffer process provide for more detailed
21  procedures for the exchange of records within designated time
    frames in the context of the condemning authority making the
22  first offer.  Changes to mediation procedures require the
    government condemning authority to have a party present that
23  can bind its side in those proceedings.

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