Senate Bill 0940c2

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    Florida Senate - 1999                     CS for CS for SB 940

    By the Committees on Fiscal Policy; and Comprehensive
    Planning, Local and Military Affairs




    309-1994-99

  1                      A bill to be entitled

  2         An act relating to eminent domain; creating s.

  3         73.015, F.S.; requiring presuit negotiation

  4         before an action in eminent domain may be

  5         initiated under ch. 73, F.S., or ch. 74, F.S.;

  6         providing requirements for the condemning

  7         authority; requiring the condemning authority

  8         to give specified notices; requiring a written

  9         offer of purchase and appraisal and specifying

10         the time period during which the owner may

11         respond to the offer before a condemnation

12         lawsuit may be filed; providing procedures;

13         allowing a business owner to claim business

14         damage within a specified time period;

15         providing circumstances under which the court

16         must strike a business-damage defense;

17         providing procedures for business-damage

18         claims; providing for nonbinding mediation;

19         requiring the condemning authority to pay

20         reasonable costs and attorney's fees of a

21         property owner; allowing the property owner to

22         file a complaint in circuit court to recover

23         attorney's fees and costs, if the parties

24         cannot agree on the amount; providing that

25         certain evidence is inadmissible in specified

26         proceedings; amending s. 73.092, F.S.; deleting

27         provisions relating to attorney's fees for

28         business-damage claims; amending ss. 127.01,

29         166.401, F.S.; restricting the exercise by

30         counties and municipalities of specified

31         eminent domain powers granted to the Department

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  1         of Transportation; repealing ss. 337.27(2),

  2         337.271, 348.0008(2), 348.759(2), 348.957(2),

  3         F.S., relating to limiting the acquisition cost

  4         of lands and property acquired through eminent

  5         domain proceedings by the Department of

  6         Transportation, the Orlando-Orange County

  7         Expressway Authority, or the Seminole County

  8         Expressway Authority, or under the Florida

  9         Expressway Authority Act, and relating to the

10         notice that the Department of Transportation

11         must give to a fee owner at the inception of

12         negotiations to acquire land; amending s.

13         479.15, F.S.; prescribing duties of local

14         governments with respect thereto; providing an

15         effective date.

16

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

18

19         Section 1.  Section 73.015, Florida Statutes, is

20  created to read:

21         73.015  Presuit negotiation.--

22         (1)  Effective July 1, 2000, before an eminent domain

23  proceeding is brought under this chapter or chapter 74, the

24  condemning authority must attempt to negotiate in good faith

25  with the fee owner of the parcel to be acquired, must provide

26  the owner with a written offer and, if requested, a copy of

27  the appraisal upon which the offer is based, and must attempt

28  to reach an agreement regarding the amount of compensation to

29  be paid for the parcel.

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    Florida Senate - 1999                     CS for CS for SB 940
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  1         (a)  At the inception of negotiation for acquisition,

  2  the condemning authority must notify the fee owner of the

  3  following:

  4         1.  That all or a portion of his or her property is

  5  necessary for a project;

  6         2.  The nature of the project for which the parcel is

  7  considered necessary, and the parcel designation of the

  8  property to be acquired;

  9         3.  That, within 15 business days after receipt of a

10  request by the owner, the condemning authority will provide

11  right-of-way maps, construction plans, or other documents that

12  depict the proposed taking, and a copy of the appraisal report

13  upon which the offer is based;

14         4.  The fee owner's statutory rights under ss. 73.091

15  and 73.092; and

16         5.  The fee owner's rights and responsibilities under

17  paragraphs (b) and (c) and subsection (4).

18         (b)  The condemning authority must provide a written

19  offer of purchase to the fee owner. The owner must be given at

20  least 30 days to respond to the offer before the condemning

21  authority files a condemnation proceeding for the parcel

22  identified in the offer.

23         (c)  The notice and written offer must be sent by

24  certified mail, return receipt requested, to the fee owner's

25  last known address listed on the county ad valorem tax roll.

26  Alternatively, the notice and written offer may be personally

27  delivered to the fee owner of the property. If there is more

28  than one owner of a property, notice to one owner constitutes

29  notice to all owners of the property. The return of the notice

30  as undeliverable by the postal authorities constitutes

31  compliance with this provision. The condemning authority is

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  1  not required to give notice or a written offer to a person who

  2  acquires title to the property after the notice required by

  3  this section has been given.

  4         (d)  Notwithstanding this subsection, with respect to

  5  lands acquired under s. 259.041, the condemning authority is

  6  not required to give the fee owner the current appraisal

  7  before executing an option contract.

  8         (2)  Effective July 1, 2000, before an eminent domain

  9  proceeding is brought under this chapter or chapter 74 by the

10  Department of Transportation or by a county, municipality,

11  board, district, or other public body for the condemnation of

12  right-of-way, the condemning authority must make a good-faith

13  effort to notify the property owners, including lessees, who

14  operate a business located on the property to be acquired of

15  their statutory rights under s. 73.091 and of the items listed

16  in subparagraphs (1)(a)1.-3. The notice must be sent by

17  certified mail, return receipt requested, or by personal

18  delivery to any person or employee operating the business. If

19  a business does not appear to be open and operating at the

20  time notice is attempted, and efforts to notify the owner by

21  certified mail and personal delivery have failed, the notice

22  must be published in a newspaper at least once each week for

23  two consecutive weeks in the county where the property is

24  located. However, if the property is located in a municipality

25  and a newspaper is published there, the notice must be

26  published in such a newspaper. Notice to one owner of a

27  multiple ownership business constitutes notice to all business

28  owners of that business. The condemning authority is not

29  required to give notice to a business owner who acquires an

30  interest in the business after the notice required by this

31  section has been given. Once notice has been made to business

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    Florida Senate - 1999                     CS for CS for SB 940
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  1  owners under this subsection, the condemning authority may

  2  file a condemnation proceeding pursuant to chapter 73 or

  3  chapter 74 for the property identified in the notice.

  4         (a)  If the business owner intends to claim business

  5  damages under s. 73.071(3)(b), the business owner must, within

  6  120 days after either receipt of the notice or the date of

  7  final publication of notice as required by this subsection, or

  8  at a later time mutually agreed to by the condemning authority

  9  and the business owner, submit to the condemning authority a

10  good-faith written offer to settle any claims of business

11  damage. The written offer must be sent to the condemning

12  authority by certified mail, return receipt requested. Absent

13  a showing of a good-faith justification for the failure to

14  submit a business-damage offer within 120 days, the court must

15  strike the business owner's claim for business damages in any

16  condemnation proceeding. If the court finds that the business

17  owner has made a showing of a good-faith justification for the

18  failure to timely submit a business damage offer, the court

19  shall grant the business owner up to 120 days within which to

20  submit a business-damage offer, which the condemning authority

21  must respond to within 90 days.

22         1.  The business-damage offer must include an

23  explanation of the nature, extent, and monetary amount of such

24  damage and must be prepared by either the owner or a certified

25  public accountant. The business owner shall also provide to

26  the condemning authority copies of the owner's business

27  records that substantiate the good-faith offer to settle the

28  business damage claim. If additional information is needed

29  beyond data that may be obtained from business records

30  existing at the time of the offer, the business owner and

31  condemning authority may agree on a schedule for the

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    Florida Senate - 1999                     CS for CS for SB 940
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  1  submission of such information. Business records that are not

  2  provided to the condemning authority under this section may

  3  not be used by the business owner either individually or in

  4  conjunction with other business records to establish or prove

  5  business damage, nor may they be used to establish an award of

  6  attorney's fees.

  7         2.  As used in this paragraph, the term "business

  8  records" includes, but is not limited to, copies of federal

  9  income tax returns, federal income tax withholding statements,

10  federal miscellaneous income tax statements, state sales tax

11  returns, balance sheets, profit and loss statements, state

12  corporate income tax returns for the 5 years preceding

13  notification which are attributable to the business operation

14  on the property to be acquired, and other records relied upon

15  by the business owner that substantiate the business-damage

16  claim.

17         (b)  Within 90 days after receipt of the good-faith

18  business-damage offer and accompanying business records, the

19  condemning authority must, by certified mail, accept or reject

20  the business owner's offer or make a counteroffer.

21         (3)  At any time in the presuit negotiation process,

22  the parties may agree to submit the compensation or

23  business-damage claims to nonbinding mediation. The parties

24  shall agree upon a mediator certified under s. 44.102.

25         (4)  Upon submission of an invoice that complies with

26  the requirements of this subsection, the condemning authority

27  shall pay all reasonable costs, including reasonable

28  attorney's fees and reasonable mediation costs, incurred on

29  behalf of a fee or business property owner under this section

30  for presuit negotiations. In order to qualify for reasonable

31  attorney's fees and costs for presuit negotiations, the fee or

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    Florida Senate - 1999                     CS for CS for SB 940
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  1  business owner must have complied with the requirements of

  2  this section and must be entitled to compensation from the

  3  condemning authority under this chapter. The invoice must

  4  include complete time records and a detailed statement of

  5  services performed, including the date on which the service

  6  was performed, the hourly rate charged for the service, and

  7  the person performing the service.

  8         (a)  Attorney's fees for presuit negotiations under

  9  this section regarding the amount of compensation to be paid

10  for the land, severance damages, and improvements must be

11  calculated in accordance with s. 73.092(1). When business

12  damages are paid, attorney's fees incurred in presentation of

13  the business owner's good-faith offer under paragraph (2)(a)

14  must be calculated in accordance with s. 73.092(2), (3), (4),

15  and (5), and any subsequent fees which may be payable must be

16  calculated as provided in s. 73.092(1), based on the

17  difference between the final payment of business damages and

18  the counteroffer to the business owner's offer by the

19  condemning authority. Failure of the condemning authority to

20  respond to a business-damage offer as provided in this section

21  must be deemed to be a counteroffer of zero dollars.

22         (b)  Presuit costs must be presented, calculated, and

23  awarded in the same manner as provided in s. 73.091, after

24  submission by the business or property owner to the condemning

25  authority of all appraisal reports, business damage reports,

26  or other work-products for which recovery is sought, and upon

27  transfer of title of the real property by closing, upon

28  payment of any amounts due for business damages, or upon final

29  judgment.

30         (c)  If the parties cannot agree on the amount of costs

31  and attorney's fees to be paid by the condemning authority,

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  1  the property owner may file a complaint in the circuit court

  2  in the county in which the property is located to recover

  3  attorney's fees and costs.

  4         (5)  Evidence of negotiations, or of any written or

  5  oral statements used in mediation or negotiations between the

  6  parties under this section is inadmissible in any condemnation

  7  proceeding, except in a proceeding to determine reasonable

  8  costs and attorney's fees.

  9         Section 2.  Section 73.092, Florida Statutes, is

10  amended to read:

11         73.092  Attorney's fees.--

12         (1)  Except as otherwise provided in this section and

13  s. 73.015, the court, in eminent domain proceedings, shall

14  award attorney's fees based solely on the benefits achieved

15  for the client.

16         (a)  As used in this section, the term "benefits" means

17  the difference, exclusive of interest, between the final

18  judgment or settlement and the last written offer made by the

19  condemning authority before the defendant hires an attorney.

20  If no written offer is made by the condemning authority before

21  the defendant hires an attorney, benefits must be measured

22  from the first written offer after the attorney is hired.

23         1.  In determining attorney's fees in prelitigation

24  negotiations, benefits do not include amounts awarded for

25  business damages unless the business owner provided to the

26  condemning authority, upon written request, prior to

27  litigation, those financial and business records kept by the

28  owner in the ordinary course of business.

29         2.  In determining attorney's fees subsequent to the

30  filing of litigation, if financial and business records kept

31  by the owner in the ordinary course of business were not

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    Florida Senate - 1999                     CS for CS for SB 940
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  1  provided to the condemning authority prior to litigation,

  2  benefits for amounts awarded for business damages must be

  3  based on the first written offer made by the condemning

  4  authority within 120 days after the filing of the eminent

  5  domain action. In the event the petitioner makes a discovery

  6  request for a defendant's financial and business records kept

  7  in the ordinary course of business within 45 days after the

  8  filing of that defendant's answer, then the 120-day period

  9  shall be extended to 60 days after receipt by petitioner of

10  those records. If the condemning authority makes no written

11  offer to the defendant for business damages within the time

12  period provided in this section, benefits for amounts awarded

13  for business damages must be based on the difference between

14  the final judgment or settlement and the last written offer

15  made by the condemning authority before the defendant hired an

16  attorney.

17         (b)  The court may also consider nonmonetary benefits

18  obtained for the client through the efforts of the attorney,

19  to the extent such nonmonetary benefits are specifically

20  identified by the court and can, within a reasonable degree of

21  certainty, be quantified.

22         (c)  Attorney's fees based on benefits achieved shall

23  be awarded in accordance with the following schedule:

24         1.  Thirty-three percent of any benefit up to $250,000;

25  plus

26         2.  Twenty-five percent of any portion of the benefit

27  between $250,000 and $1 million; plus

28         3.  Twenty percent of any portion of the benefit

29  exceeding $1 million.

30         (2)  In assessing attorney's fees incurred in defeating

31  an order of taking, or for apportionment, or other

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  1  supplemental proceedings, when not otherwise provided for, the

  2  court shall consider:

  3         (a)  The novelty, difficulty, and importance of the

  4  questions involved.

  5         (b)  The skill employed by the attorney in conducting

  6  the cause.

  7         (c)  The amount of money involved.

  8         (d)  The responsibility incurred and fulfilled by the

  9  attorney.

10         (e)  The attorney's time and labor reasonably required

11  adequately to represent the client in relation to the benefits

12  resulting to the client.

13         (f)  The fee, or rate of fee, customarily charged for

14  legal services of a comparable or similar nature.

15         (g)  Any attorney's fee award made under subsection

16  (1).

17         (3)  In determining the amount of attorney's fees to be

18  paid by the petitioner under subsection (2), the court shall

19  be guided by the fees the defendant would ordinarily be

20  expected to pay for these services if the petitioner were not

21  responsible for the payment of those fees.

22         (4)  At least 30 days prior to a hearing to assess

23  attorney's fees under subsection (2), the condemnee's attorney

24  shall submit to the condemning authority and to the court

25  complete time records and a detailed statement of services

26  rendered by date, nature of services performed, time spent

27  performing such services, and costs incurred.

28         (5)  The defendant shall provide to the court a copy of

29  any fee agreement that may exist between the defendant and his

30  or her attorney, and the court must reduce the amount of

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  1  attorney's fees to be paid by the defendant by the amount of

  2  any attorney's fees awarded by the court.

  3         Section 3.  Subsection (1) of section 127.01, Florida

  4  Statutes, is amended to read:

  5         127.01  Counties delegated power of eminent domain;

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

  7         (1)(a)  Each county of the state is delegated authority

  8  to exercise the right and power of eminent domain; that is,

  9  the right to appropriate property, except state or federal,

10  for any county purpose.  The absolute fee simple title to all

11  property so taken and acquired shall vest in such county

12  unless the county seeks to condemn a particular right or

13  estate in such property.

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

15  eminent domain power powers granted to the Department of

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

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

18  entry onto property pursuant to s. 337.274.

19         Section 4.  Subsection (2) of section 166.401, Florida

20  Statutes, is amended to read:

21         166.401  Right of eminent domain.--

22         (2)  Each municipality is further authorized to

23  exercise the eminent domain power powers granted to the

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

25  transportation corridor protection provisions of s. 337.273.

26         Section 5.  Subsection (2) of section 337.27, Florida

27  Statutes, section 337.271, Florida Statutes, subsection (2) of

28  section 348.0008, Florida Statutes, subsection (2) of section

29  348.759, Florida Statutes, and subsection (2) of section

30  348.957, Florida Statutes, are repealed.

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  1         Section 6.  Subsections (3), (4), and (5) are added to

  2  section 479.15, Florida Statutes, to read:

  3         479.15  Harmony of regulations.--

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

  5  limit the state right-of-way acquisition costs on state and

  6  federal roads in eminent domain proceedings, the provisions of

  7  ss. 479.07 and 479.155 notwithstanding. Subject to approval by

  8  the Federal Highway Administration, whenever public

  9  acquisition of land upon which is situated a lawful

10  nonconforming sign occurs, as provided in this chapter, the

11  sign may, at the election of its owner and the department, be

12  relocated or reconstructed adjacent to the new right-of-way

13  along the roadway. The sign owner shall pay all costs

14  associated with relocating or reconstructing any sign under

15  this subsection, and neither the state nor any local

16  government shall reimburse the sign owner for such costs,

17  unless part of such relocation costs are required by federal

18  law.

19         (4)  Such relocation shall be adjacent to the current

20  site and the face of the sign shall not be increased in size

21  or height or structurally modified at the point of relocation

22  consistent with the current building codes of the jurisdiction

23  in which the sign is located.

24         (5)  In the event that relocation is inconsistent with

25  the ordinances of the municipality or county within whose

26  jurisdiction the sign is located, the ordinances of the local

27  government shall prevail, provided that the local government

28  shall assume the responsibility to provide the owner of the

29  sign just compensation for its removal. Further, the

30  provisions of this section shall not impair any agreement or

31  future agreements between a municipality or county and the

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  1  owner of a sign or signs within the jurisdiction of the

  2  municipality or county. Nothing in this section shall be

  3  deemed to cause a nonconforming sign to become conforming

  4  solely as a result of the relocation allowed in this section.

  5         Section 7.  This act shall take effect January 1, 2000.

  6

  7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  8                            CS/SB 940

  9

10  Deletes the express preemption of local government ordinances
    for the relocation of non-conforming signs.  Provides that if
11  local government has an ordinance that prohibits relocation of
    signs, the local government has to compensate the owner for
12  the sign.

13  Provides a time period, from January 1, 2000, to July 1, 2000,
    for condemning authorities to phase in the presuit negotiation
14  provisions without being prohibited from filing an eminent
    domain action.
15
    Provides a time period, from January 1, 2000, to July 1, 2000,
16  for condemning authorities to phase in the presuit negotiation
    business damages provisions without being prohibited from
17  filing an eminent domain action.

18  Clarifies the methodology for determining attorney's fees
    under the presuit negotiation process.
19
    Clarifies when costs should be paid under the presuit
20  negotiation process.

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