CLEI Case Law

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The year in review: Eminent Domain Case Law by Paul D. Bain.

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  • Owner perception of not negotiating in good faith Owners not negotiate until lawsuit filed Defeats purpose of 1999 amendments to eminent domain statutes of encouraging presuit settlement
  • Owner perception of not negotiating in good faith Owners not negotiate until lawsuit filed Defeats purpose of 1999 amendments to eminent domain statutes of encouraging presuit settlement
  • CLEI Case Law

    1. 1. Get on the Case: This Year’s Eminent Domain Law presented by Paul D. Bain, Esq.
    2. 2. Get on the Case: This Year’s Eminent Domain Law <ul><li>Business damages </li></ul><ul><li>Inverse condemnation </li></ul><ul><li>Quick take proceedings </li></ul><ul><li>Costs & attorney’s fees </li></ul><ul><li>Inverse condemnation / regulatory taking </li></ul><ul><li>Bert J. Harris, Jr. Private Property Rights Protection Act </li></ul><ul><li>Circuit court orders </li></ul>
    3. 3. Business damages <ul><li>System Components Corp. v. Florida Dept. of Transp. , </li></ul><ul><li>14 So. 3d 967 (Fla. 2009) </li></ul><ul><ul><li>actual extent of harm suffered by business is foundation of business damage award </li></ul></ul><ul><ul><li>business damages compensate for “probable” reductions in business value, business losses, or increased business expenses reasonably caused by taking </li></ul></ul><ul><ul><li>business damages are inherently fact-intensive and include, but are not limited to, lost profits, moving/relocation expenses, and loss of goodwill </li></ul></ul><ul><ul><li>business damages not intended to be windfall unconnected with any out-of-pocket loss </li></ul></ul>
    4. 4. Business damages <ul><li>System Components Corp. v. Florida Dept. of Transp. </li></ul><ul><ul><li>when qualified partial taking destroys business at prior location, and owner chooses to relocate, resulting business damages must be measured based on continued existence and true economic realities of the given case (“probable” financial impact “reasonably” suffered as a result of taking) </li></ul></ul><ul><ul><li>business damage award based on relocation may include: </li></ul></ul><ul><ul><li>(1) relocation cost—including cost of temporary relocation while permanent location identified, cost of broker site selection, cost of obtaining property, cost of architect and engineer design and preparation, cost of facility construction, and cost of moving coordinator; </li></ul></ul><ul><ul><li>(2) altered capital structure—increased debt; </li></ul></ul><ul><ul><li>(3) down time of business; and </li></ul></ul><ul><ul><li>(4) productivity losses </li></ul></ul>
    5. 5. Business damages <ul><li>System Components Corp. v. Florida Dept. of Transp. </li></ul><ul><ul><li>business damage award based on total cost and damage associated with relocation may not exceed total value of business </li></ul></ul><ul><ul><li>F.S. 73.071 does not impose affirmative duty to relocate business operation to mitigate damages resulting from taking </li></ul></ul><ul><ul><li>under doctrine of avoidable consequences (duty to mitigate), owner is not required to relocate business operation or allow a damage calculation based on hypothetical relocation </li></ul></ul>
    6. 6. Inverse condemnation regulatory taking <ul><li>Walton County v. Stop the Beach Renourishment, Inc. , </li></ul><ul><li>998 So. 2d 1102 (Fla. 2008), </li></ul><ul><li>certiorari granted , 129 S. Ct. 2792 (U.S. Jun. 15, 2009) </li></ul><ul><ul><li>littoral rights </li></ul></ul><ul><ul><li>upland owners hold common law rights: (1) to have access to the water; (2) to reasonably use the water; (3) to accretion and reliction; and (4) to the unobstructed view of the water </li></ul></ul><ul><ul><li>boundary between public lands and private uplands is the mean high water line, which is average over nineteen-year period </li></ul></ul><ul><ul><li>“ avulsion” is the sudden or perceptible loss of or addition to the land by the action of the water or a sudden change in the bed of a lake or the course of a stream </li></ul></ul><ul><ul><li>under doctrine of avulsion, the mean high water line is unchanged by avulsive event (e.g., hurricane) </li></ul></ul>
    7. 7. Inverse condemnation regulatory taking <ul><li>Walton County v. Stop the Beach Renourishment, Inc. </li></ul><ul><ul><li>public has right to restore shoreline lost by an avulsive event </li></ul></ul><ul><ul><li>Beach And Shore Preservation Act authorizes state to restore storm-damaged shoreline by adding sand to submerged sovereignty lands, consistent with common law </li></ul></ul><ul><ul><li>Florida common law does not include independent right to have property’s contact with water remain intact, contact is ancillary to right of access </li></ul></ul><ul><ul><li>Beach And Shore Preservation Act is facially constitutional and does not unconstitutionally deprive upland owners of littoral rights without just compensation, strictly limited to context of restoring critically eroded beaches under act </li></ul></ul>
    8. 8. Inverse condemnation regulatory taking <ul><li>Walton County v. Stop the Beach Renourishment, Inc. </li></ul><ul><li>certiorari granted , 129 S. Ct. 2792 (U.S. Jun. 15, 2009) </li></ul><ul><ul><li>1. The Florida Supreme Court invoked &quot;nonexistent rules of state substantive law&quot; to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a &quot;judicial taking&quot; proscribed by the Fifth and Fourteenth Amendments to the United States Constitution? </li></ul></ul><ul><ul><li>2. Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution? </li></ul></ul>
    9. 9. Inverse condemnation regulatory taking <ul><li>Walton County v. Stop the Beach Renourishment, Inc. </li></ul><ul><li>certiorari granted , 129 S. Ct. 2792 (U.S. Jun. 15, 2009) </li></ul><ul><ul><li>3. Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution? </li></ul></ul>
    10. 10. Quick take proceedings <ul><li>Kirkland v. City of Lakeland , </li></ul><ul><li>3 So. 3d 398 (Fla. 2d DCA 2009) </li></ul><ul><ul><li>F.S. 166.411(3) authorizes municipality to take property outside of and not contiguous to municipal boundaries, considering county did not object to taking for road extension project </li></ul></ul><ul><ul><li>public purpose for taking not required to be exclusively or even primarily a municipal purpose </li></ul></ul><ul><ul><li>F.S. 335.0415 does not regulate a municipality’s power of eminent domain, even if it requires county to maintain road </li></ul></ul><ul><ul><li>trial court did not err in granting order of taking where municipality established public purpose and reasonable necessity for taking of property for road extension project </li></ul></ul>
    11. 11. Quick take proceedings <ul><li>Gil Eriksen Properties, LLC v. Pompano Beach Community Redevelopment Agency , </li></ul><ul><li>997 So. 2d 522 (Fla. 4th DCA 2009) </li></ul><ul><ul><li>following withdrawal of funds from court registry, owner waived argument that lawyer did not have authority to stipulate to order of taking </li></ul></ul><ul><ul><li>following withdrawal of funds from court registry, owner waived argument that trial court did not have subject matter jurisdiction because power of eminent domain allegedly not delegated by resolution to condemning authority </li></ul></ul>
    12. 12. Trial procedure <ul><li>Levy County v. Diamond , </li></ul><ul><li>7 So. 3d 564 (Fla. 1st DCA 2009) </li></ul><ul><ul><li>venue </li></ul></ul><ul><ul><li>inverse condemnation case against Levy County and others filed in Leon County </li></ul></ul><ul><ul><li>home venue privilege may be waived by statute, by state agency filing motion to change venue, or by failing to timely object to venue </li></ul></ul><ul><ul><li>trial court erred denying county’s motion to transfer venue per F.S. 47.122 to county of subject property where documents and nearly all potential witnesses were located </li></ul></ul>
    13. 13. Inverse condemnation <ul><li>Drake v. Walton County , </li></ul><ul><li>6 So. 3d 717 (Fla. 1st DCA 2009) </li></ul><ul><ul><li>despite previous water discharge on property “for centuries,” owner could reasonably rely on drainage stabilization at time of purchase where no discharge occurred and flooding was eliminated </li></ul></ul><ul><ul><li>county constructed ditch during emergency condition and allowed ditch to remain as drainage easement long after emergency passed </li></ul></ul><ul><ul><li>taking occurs where government action constitutes a substantial interference with private property rights for more than a momentary period and will be continuous or reasonably expected to continuously recur, resulting in substantial deprivation of beneficial use of property </li></ul></ul>
    14. 14. Inverse Condemnation <ul><li>Drake v. Walton County </li></ul><ul><ul><li>taking as a matter of law occurs where county diverts water across owner’s property and continues diversion after emergency passes </li></ul></ul><ul><ul><li>county’s statutory right to excavate drainage paths to preserve property under F.S. 252.43(6) does not preclude inverse condemnation claim based on Florida Constitution </li></ul></ul><ul><ul><li>trial court erred by entering judgment against owner and ruling that diversion of water could not constitute a taking because diversion followed declared emergencies under F.S. 252.43(6) </li></ul></ul>
    15. 15. Inverse condemnation <ul><li>New Testament Baptist Church Inc. of Miami v. State, Dept. of Transp. , </li></ul><ul><li>993 So. 2d 112 (Fla. 4th DCA 2008) </li></ul><ul><ul><li>four-year statute of limitations applies to inverse condemnation claims </li></ul></ul><ul><ul><li>plat dedication as a condition for application approval is not void ab initio, but merely voidable, where it affected only the applicant and not the general public </li></ul></ul><ul><ul><li>statute of limitations applies to claim as to plat dedication where rights of third parties are not affected </li></ul></ul><ul><ul><li>trial court did not err in granting summary judgment against claim for physical use of previously dedicated property </li></ul></ul>
    16. 16. Inverse condemnation <ul><li>Crowley Museum and Nature Center, Inc. v. Southwest Florida Water Management Dist. , </li></ul><ul><li>993 So. 2d 605 (Fla. 2d DCA 2008) </li></ul><ul><ul><li>“ claim for district issuance of permits to third parties resulting in downstream flooding and destruction of trees </li></ul></ul><ul><ul><li>constitutional inverse condemnation claim cannot be barred by legislative grant of immunity </li></ul></ul><ul><ul><li>trial court erred by dismissing complaint for inverse condemnation based on sovereign immunity </li></ul></ul>
    17. 17. Inverse condemnation regulatory taking <ul><li>St. Johns River Water Management Dist. v. Koontz , </li></ul><ul><li>5 So. 3d 8 (Fla. 4th DCA 2009), </li></ul><ul><li>certiorari granted , Case SC09-713 (Fla. Sept. 16, 2009) </li></ul><ul><ul><li>denial of permit when owner rejected condition of development approval requiring “off-site” mitigation that consisted of replacing culverts 4 ½ miles from property or plugging drainage canals 7 miles from property </li></ul></ul><ul><ul><li>“ exaction” is condition sought by governmental entity in exchange for authorization to allow some use of land that the government has otherwise restricted </li></ul></ul><ul><ul><li>exaction can be dedicatory—requiring the conveyance of land—or non-dedicatory—requiring the payment of money or construction of improvement </li></ul></ul>
    18. 18. Inverse condemnation regulatory taking <ul><li>St. Johns River Water Management Dist. v. Koontz </li></ul><ul><ul><li>exaction claim arises where owner refuses to agree to improper request from government resulting in denial of permit, since “attempt by government to extort is no less reprehensible than a fait accompli” </li></ul></ul><ul><ul><li>trial court properly awarded owner compensation for temporary taking where condition to approval had no essential nexus or rough proportionality to development application </li></ul></ul>
    19. 19. Inverse condemnation regulatory taking <ul><li>St. Johns River Water Management Dist. v. Koontz </li></ul><ul><li>certiorari granted , Case SC09-713 (Fla. Sept. 16, 2009) </li></ul><ul><ul><li>Question certified: </li></ul></ul><ul><ul><li>Where a landowner concedes that permit denial did not deprive him of all or substantially all economically viable use of the property, does Article X, section 6(a) of the Florida Constitution recognize an exaction taking under the holdings of Nollan v. California Coastal Commission , 483 U.S. 825 (1987) and Dolan v. City of Tigard , 512 U.S. 374 (1994) where, instead of a compelled dedication of real property to public use, the exaction is a condition for permit approval that the circuit court finds unreasonable? </li></ul></ul>
    20. 20. Inverse condemnation regulatory taking <ul><li>Collins v. Monroe County , </li></ul><ul><li>999 So. 2d 709 (Fla. 3d DCA 2008) </li></ul><ul><ul><li>facial taking—per se or categorical taking—occurs when mere enactment of regulation deprives all reasonable economic use of property </li></ul></ul><ul><ul><li>as a matter of law, no facial taking occurs when mere enactment of regulation does not deprive owner of all reasonable economic use </li></ul></ul><ul><ul><li>owners not deprived of all reasonable economic use—economic expectation not reduced to zero—where owners received compensation through sale of property and where owners received building permits to develop property </li></ul></ul><ul><ul><li>as-applied taking occurs when application of regulation to property results in deprivation of substantial use of property </li></ul></ul>
    21. 21. Inverse condemnation regulatory taking <ul><li>Collins v. Monroe County </li></ul><ul><ul><li>claim for as-applied taking is ripe for judicial review where owner obtained final determination from government, including the opportunity to grant variances or waivers allowed by law </li></ul></ul><ul><ul><li>owners’ claims were ripe when Beneficial Use Determination (BUD) resolution was county’s final decision of nature and extent of permissible development </li></ul></ul><ul><ul><li>trial court incorrectly entered summary judgment based on facial taking brought beyond statute of limitations where as applied taking claim was timely </li></ul></ul>
    22. 22. Inverse condemnation regulatory taking <ul><li>Shands v. City of Marathon , </li></ul><ul><li>999 So. 2d 718 (Fla. 3d DCA 2008) </li></ul><ul><ul><li>facial taking—per se or categorical taking—occurs when mere enactment of regulation deprives all economically beneficial use of property </li></ul></ul><ul><ul><li>no facial taking occurs where owner can obtain variance or transferrable development rights </li></ul></ul><ul><ul><li>mere enactment of ordinance did not result in facial taking where residential uses and transfer of development rights were available, leaving economic value </li></ul></ul><ul><ul><li>as-applied taking occurs when application of regulation to particular property results in substantial deprivation of economic use or reasonable investment-backed expectations of property </li></ul></ul>
    23. 23. Inverse condemnation regulatory taking <ul><li>Shands v. City of Marathon </li></ul><ul><ul><li>claim for as-applied taking is ripe for judicial review where owner obtained final determination from government regarding application of regulations to property </li></ul></ul><ul><ul><li>Beneficial Use Determination (BUD) process determines uses property may reasonably be put under regulations </li></ul></ul><ul><ul><li>decision from city council on owner’s BUD application was final determination </li></ul></ul><ul><ul><li>trial court incorrectly dismissed inverse condemnation based on facial taking brought beyond statute of limitations where as-applied taking claim was timely </li></ul></ul>
    24. 24. Bert J. Harris, Jr. Private Property Rights Protection Act <ul><li>City of Jacksonville v. Coffield , </li></ul><ul><li>34 Fla. L. Weekly D704 (Fla. 1st DCA Apr. 3, 2009) </li></ul><ul><ul><li>Bert J. Harris, Jr. Private Property Rights Protection Act provides remedy for property owner whose property has been “inordinately burdened” by government action not giving rise to a constitutional taking </li></ul></ul><ul><ul><li>owner had no existing use or vested right to develop property where no permits had been issued for development </li></ul></ul><ul><ul><li>owner had no “reasonably foreseeable, nonspeculative” right to develop property where application had been filed to close public roadway necessary for development </li></ul></ul>
    25. 25. Bert J. Harris, Jr. Private Property Rights Protection Act <ul><li>City of Jacksonville v. Coffield </li></ul><ul><ul><li>ordinance closing and abandoning public roadway did not inordinately burden “reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property” where owner had no existing use or vested right to development </li></ul></ul><ul><ul><li>trial court erred in determining that city had inordinately burdened owner’s property where ordinance closed and abandoned exempted property and owner did not have vested right to development </li></ul></ul><ul><ul><li>note: appellate court stated in footnote 4 that it has found “no case in which an appellate court has affirmed relief granted pursuant to the Act.” </li></ul></ul>
    26. 26. Bert J. Harris, Jr. Private Property Rights Protection Act <ul><li>Citrus County v. Halls River Development, Inc. , </li></ul><ul><li>8 So. 3d 413 (Fla. 5th DCA 2009) </li></ul><ul><ul><li>Bert J. Harris, Jr. Private Property Rights Protection Act creates new cause of action allowing owner to recover damages where government action inordinately burdens property by preventing owner from attaining reasonably investment-backed expectations for vested rights </li></ul></ul><ul><ul><li>comprehensive plan controls any conflict with land development code or zoning maps </li></ul></ul><ul><ul><li>notwithstanding designation in land development code, zoning maps, or misinformation from county staff of allowable uses, owner did not have vested right to more intense development at time of purchase contrary to more restrictive comprehensive plan designation </li></ul></ul>
    27. 27. Bert J. Harris, Jr. Private Property Rights Protection Act <ul><li>Citrus County v. Halls River Development, Inc. </li></ul><ul><ul><li>ordinance conforming land development code and zoning maps to comprehensive plan did not inordinately burden property where property exempted from its application </li></ul></ul><ul><ul><li>owner should have known that designation in comprehensive plan controls over land development code and zoning maps </li></ul></ul><ul><ul><li>equitable estoppel does not generally apply to government where act is forbidden by law or contrary to public policy </li></ul></ul><ul><ul><li>trial court erred in determining that county had inordinately burdened owner’s property where ordinance exempted property and owner did not have vested right to development </li></ul></ul>
    28. 28. Costs <ul><li>Pinnacle Floor Covering, Inc. v. Department of Transp. , </li></ul><ul><li>34 Fla. L Weekly D 1610 (Fla. 2d DCA Aug. 7, 2009) </li></ul><ul><ul><li>F.S. 73.091 authorizes an award of expert’s fees and costs for business damages in an eminent domain proceeding only where business damages are compensable </li></ul></ul><ul><ul><li>where jury expressly found that threat of condemnation did not damage or destroy business and that business was not entitled to business damages, business damages were not compensable </li></ul></ul><ul><ul><li>trial court properly denied motion to recover experts’ fees incurred to litigate business damages where business damages were not compensable </li></ul></ul>
    29. 29. Attorney’s fees <ul><li>Amerus Life Insurance Co. v. Lait , </li></ul><ul><li>2 So. 3d 203 (Fla. 2009) </li></ul><ul><ul><li>non-eminent domain case </li></ul></ul><ul><ul><li>30-day time requirement under F.R.C.P. 1.525 does not apply when trial court already determined entitlement to attorney’s fees and costs, but reserved jurisdiction to determine amount </li></ul></ul><ul><ul><li>reservation of jurisdiction to determine amount is distinguishable from reservation of jurisdiction to determine both entitlement and amount </li></ul></ul><ul><ul><li>30-day time requirement under F.R.C.P. 1.525 applies when trial court reserves jurisdiction to determine both entitlement and amount </li></ul></ul>
    30. 30. Trial court order quick take proceedings <ul><li>Marion County v. Louis V. Stewart, Jr., et al. , </li></ul><ul><li>Case No. 08-5161-CA-G (Fla. 5th Cir. Dec. 23, 2008) </li></ul><ul><ul><li>Judge Singbush ruled that F.S. 127.02 (amended May 11, 2008) requires that each eminent domain resolution passed by a county address only one property </li></ul></ul><ul><ul><li>where county’s resolution sought to authorize the taking of 10 properties, it violated F.S. 127.02 and was “fatally defective” </li></ul></ul>
    31. 31. Trial court order presuit fees & costs <ul><li>Larry and Lauren Hiss v. Volusia County , </li></ul><ul><li>Case No. 2009-12106-CIDL (Fla. 7th Cir. Sept. 3, 2009) </li></ul><ul><ul><li>County provided written notice of proposed taking and reimbursement of fees and costs </li></ul></ul><ul><ul><li>Owner incurred fees and costs in negotiating with County </li></ul></ul><ul><ul><li>County abandoned road project, property was not taken, and there was no pre-suit settlement </li></ul></ul><ul><ul><li>Cause of action for promissory estoppel; however, barred by doctrine of sovereign immunity </li></ul></ul><ul><ul><li>No legislative authority for fees and costs where no taking of property </li></ul></ul><ul><ul><li>Judge Rouse dismissed complaint with prejudice and dismissed action </li></ul></ul>
    32. 34. Trial court order presuit fees & costs <ul><li>Larry and Lauren Hiss v. Volusia County , </li></ul><ul><li>Case No. 2009-12106-CIDL (Fla. 7th Cir. Sept. 3, 2009) </li></ul><ul><ul><li>County provided written notice of proposed taking and reimbursement of fees and costs </li></ul></ul><ul><ul><li>Owner incurred fees and costs in negotiating with County </li></ul></ul><ul><ul><li>County abandoned road project, property was not taken, and there was no pre-suit settlement </li></ul></ul><ul><ul><li>Cause of action for promissory estoppel; however, barred by doctrine of sovereign immunity </li></ul></ul><ul><ul><li>No legislative authority for fees and costs where no taking of property </li></ul></ul><ul><ul><li>Judge Rouse dismissed complaint with prejudice and dismissed action </li></ul></ul>
    33. 35. Get on the Case: This Year’s Eminent Domain Law presented by Paul D. Bain, Esq.

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