HB 1567

CS

CHAMBER ACTION

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

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