1999 amendments to Florida's eminent domain statutes.

• Author: Bain, Paul D.

The legislature intended the 1999 amendments to encourage pre-suit settlement and reduce litigation costs in eminent domain.

On June 18, Governor Bush signed into law substantial amendments(1) to Florida's eminent domain statutes. Originating from a Senate bill sponsored by the Committee on Fiscal Policy and the Committee on Comprehensive Planning, Local and Military Affairs,(2) the amendments seek to encourage pre-suit settlement and decrease litigation costs. Among several changes, the amendments create a mandatory pre-suit negotiation process and substantially overhaul recovery of business damages.

Pre-suit Notices and Negotiation

Previously, Florida law required only the Department of Transportation to notify, make an initial offer, and negotiate with a property owner before filing a petition in eminent domain.(3) The 1999 amendments now apply this requirement to all condemning authorities. Counties, municipalities, other public bodies, and private entities with the power of eminent domain may no longer initiate condemnation proceedings without first attempting settlement. Mandatory pre-suit notices and negotiation are in the new provision, F.S. [sections] 73.015, which is effective July 1, 2000.(4)

Notice and Negotiation--Fee Owner. Pursuant to F.S. [sections]73.015(1), before an eminent domain action can be filed a condemner must provide written notice by certified mail to the fee owner(5) of the property. The notice must advise:

1) That all or part of the owner's property is necessary for a project;

2) The nature of the project and parcel designation of the needed property;

3) That the condemner will provide a copy of the appraisal report for its offer within 15 days of written request,(6) along with right-of-way maps and construction plans for the project; and

4) The fee owner's statutory rights and responsibilities.(7)

The condemning authority must make a written offer to the owner and then negotiate in good faith to acquire the parcel. The condemner's offer must include the value of the property taken and, in partial takings, any severance damages to the remainder. Upon written request, the condemner must now provide a copy of the appraisal report for its offer, which will allow the property owner to evaluate the offer.

Before the condemning authority can file an eminent domain action, it must provide the owner with 30 days to respond to its offer. The 30-day time period may benefit the Department of Transportation, which previously had to wait 120 days before filing an action.(8)

Negotiating an acquisition before filing a petition in eminent domain is a common sense prerequisite to litigation. Requiring counties, municipalities, other public bodies, and private companies with the power of eminent domain to make an initial offer holds all condemning authorities to the same standard. It further responds to Pierpont v. Lee County, 710 So. 2d 958 (Fla. 1999), in which the Florida Supreme Court found that a county's good-faith estimate upon which it acquired title to property was not an offer.

Notice--Business Owner. Pursuant to F.S. [sections] 73.015(2), before an eminent domain action can be filed, a condemner must provide written notice by certified mail to the business owner.(9) This notice is identical to that provided to the property owner and must also advise the business owner of its right to business damages under F.S. [sections] 73.071.

Immediately after the condemner notifies the business owner, it may file an eminent domain action. Unlike the mandatory pre-suit negotiations when dealing with a property owner, the condemner is not required to negotiate with the business owner before initiating litigation.

Business Owner's Initial Offer

Once the business owner receives the statutory notice, the owner has 180 days to submit a written good-faith business damage offer by certified mail to the condemner. The offer may be prepared by the business owner, a certified public accountant, or a business damage expert. It must set forth an "explanation of the nature, extent, and monetary amount" of the business damages and must include copies of the business records used to substantiate the offer.(10) The statute defines specific "business records,"(11) but does not require that these records be used to substantiate the offer.

The legislature now clearly provides that business...