Florida Eminent Domain Issue: Business Damages

Posted on March 27, 2012 by jfixel

The vast majority of Florida businesses utilize private property to conduct their commercial enterprises. For these businesses, road frontage and high traffic count can be critically important to their success. Fast food restaurants and petroleum marketers, for example, depend on road frontage and heavy traffic to attract their customers.

Proximity to busy roadways means that commercial properties are prime targets for eminent domain acquisition. Indeed, community and political pressure often demand that traffic congestion be alleviated, and the widening of roads — and the corresponding taking of businesses’ private property rights — usually follow.

Fortunately for Florida businesses, Florida’s eminent domain laws contain strong protections for commercial entities faced with an eminent domain taking. These protections enable business owners to be paid fully and fairly for the taking of their property rights, and that compensation can, in certain circumstances, include business damages.

In Florida, business damages consist of, “lost profits, loss of goodwill, and costs related to the moving and selling equipment” that are attributable to an eminent domain taking. See Systems Components Corp v. Dep’t of Transportation, 985 So.2d 687, 690 (Fla. 5th DCA 2008).

For a Florida business to qualify for business damages, the business must: (1) have been established at the place of the taking for at least five years; (2) be subject to a partial — as opposed to a whole — taking by a Florida public entity (e.g., the Florida Department of Transportation, a county, or a city); (3) utilize the part of the property acquired in the conduct of the business; and (4) meet certain procedural requirements (e.g., the business must file a business damage claim and supportive information in a timely fashion).

Fixel, Maguire & Willis’s attorneys, through their decades of experience practicing Florida eminent domain law, have handled hundreds of eminent domain matters for Florida businesses. This experience has enabled Fixel, Maguire & Willis to handle eminent domain matters for almost every conceivable type of Florida business, including restaurants, retail stores, hotels/motels, petroleum marketers, mini-storage businesses, insurance agencies, printing businesses, farming operations, medical offices, banks, and auto centers.

In handling these business related claims, Fixel, Maguire & Willis’s attorneys investigate the unique qualities of each business client and associate well-trained business valuation and site analyst experts to detail how the relevant business will be affected by the taking at issue. If you have a question about how your business may be affected by eminent domain taking in Florida, please contact Fixel, Maguire & Willis’s firm administrator, Susie Harris, by email at sharris@fla-eminentdomain.com or by telephone toll-free at 1-800-848-7535.

Florida Eminent Domain Topic: Inverse Condemnation

Posted on February 29, 2012 by jfixel

Florida law has long recognized that eminent domain is a harsh proceeding. In eminent domain proceedings, private property owners – through no fault of their own – have their land taken. Private property owners typically have no choice in the matter. They must give up their property, no matter whether they have been living or working on the property for decades.

Because eminent domain is a harsh proceeding, Florida law provides numerous procedural safeguards to ensure affected property owners are provided notice of the taking at issue and eventually, full compensation for the property acquired and the damages caused by the taking. For example, to take private property via eminent domain in Florida, condemning authorities must: (1) upon request, provide property owners with an appraisal of the value of the taking; (2) provide the property owner right-of-way maps that depict the taking at issue; and (3) provide a good faith deposit for the value of the taking. See Fla. Stat. §73.015 (2011).

Despite these well-established legal safeguards, there can be a taking of private property that does not comply with Florida law. On occasion, a condemning authority takes private property improperly, without notice or compensation to private property owners. When a condemning authority oversteps its authority in this way, private property owners have a remedy. They can sue for inverse condemnation.

In an inverse condemnation case, a judge will make a ruling to determine whether the condemning authority illegally took the property at issue. If the judge determines that an illegal taking occurred, the Court will enter an Order of Taking, and the case will proceed to the compensation phase. During the compensation phase, discovery will occur regarding the value of the property taken and resulting damages to remainder property. After the completion of discovery, and if the case does not settle, a jury trial will resolve the amount of compensation due to the affected property owner.

The attorneys at Fixel, Maguire & Willis, through their decades of experience representing private property owners in Florida eminent domain cases, have handled many inverse condemnation cases throughout the state. If you have a question about inverse condemnation or any other Florida eminent domain issue, please contact Fixel, Maguire & Willis’s firm administrator, Susie Harris, by email at sharris@fla-eminentdomain.com or by telephone toll-free at 1-800-848-7535.

Florida Eminent Domain Issue: The Timing of Road Projects

Posted on February 3, 2012 by jfixel

There are three phases to every Florida road project: (1) design; (2) right of way acquisition; and (3) road construction. These three phases always occur in the same order. The government first hires engineers to design the project and determine what right of way must be acquired. The government next obtains the right of way it needs. And finally, after the first two steps have been completed, the government constructs the road project.

All of these phases require government funding, and given this dependency, the timing of these three phases can change quickly and often. The Florida Department of Transportation (“FDOT”), for example, issues five-year plans that attempt to indicate when, within a five-year window, these three phases will occur for FDOT’s prioritized road projects. These five-year plans are highly variable and are often altered. Sometimes, the FDOT will drastically speed up project; at other times, the FDOT will delay a project or even shelve it completely.

One advantage of hiring Fixel, Maguire & Willis early in the eminent domain process is that the firm has a team of dedicated employees that track the status of road projects throughout the state. If a project’s status changes, Fixel, Maguire & Willis notifies its affected property owner clients and explains how the change will impact their property.

If you have a question about the timing of a road project that may impact your property or any other Florida eminent domain issue, please contact Fixel, Maguire & Willis’s firm administrator, Susie Harris, by email at sharris@fla-eminentdomain.com or by telephone toll-free at 1-800-848-7535.

Florida Eminent Domain Mediation: Obtaining Full Compensation without Trial

Posted on January 13, 2012 by jfixel

Some Florida property owners are hesitant to hire eminent domain counsel because they worry they will end up in the courtroom. These property owners fear that hiring an attorney will cause a near-certain trial, which will cause a significant disruption in their lives.

While understandable, this fear is almost always not justified. In Florida, an eminent domain trial is a rare event. Fixel, Maguire & Willis attorneys, for example, have settled, without going to trial, approximately 95% of the thousands of Florida eminent domain matters they have handled. Many of these matters were even resolved pre-lawsuit, without utilizing the court system at all.

Many more were settled after suit was filed, but well before trial. One effective tool utilized by Fixel, Maguire & Willis attorneys to settle many of these eminent domain lawsuits is mediation. Mediation is a formal settlement negotiation that occurs outside the courtroom. It is led by a neutral third-party attorney, who earnestly discusses with both the property owner and the condemning authority the pros and cons of their cases.

Fixel, Maguire & Willis’s attorneys have successfully mediated all types of Florida eminent domain cases with a variety of condemning authorities throughout the state. One reason Fixel, Maguire & Willis’s attorneys have succeeded in mediating these cases is that they believe a primary goal of mediation is to determine the maximum amount of money and additional non-monetary benefits the condemning authority will offer to settle a case. Once this maximum offer is revealed in mediation, Fixel, Maguire & Willis attorneys will advise, analyze, and make recommendations to their property owner clients about the potential settlement.

This honest and educated assessment assists Fixel, Maguire & Willis’s clients in making informed decisions about their case, and it often results in Fixel, Maguire & Willis’s clients obtaining full compensation, without the burden of trial.

If you own property in Florida that may be subject to an eminent domain taking and you have a question about the potential mediation of your matter, or any other eminent domain issue, please contact Fixel, Maguire & Willis’s firm administrator by email at sharris@fla-eminentdomain.com or by telephone toll-free at 1-800-848-7535.

Severance Damages in Florida Eminent Domain Matters

Posted on January 6, 2012 by jfixel

Thousands of Florida property owners face the same dilemma every year. A condemning authority (e.g., a government or utility company) seeks to acquire some – but not all – of a property owner’s land. To do so, the condemning authority makes a monetary offer to the property owner. Should the property owner accept the offer or negotiate (and potentially litigate) for additional money?

One factor that should be considered, but is not always readily apparent, is that the taking may damage the property owner’s remainder property (the land the property owner will continue to own after the taking). Such damages are called “severance damages”. And, they accrue for a variety of reasons, including: (1) alterations in shape and size of remainder property; (2) unfavorable drainage or grade elevation changes to the remainder property; and (3) access issues resulting from the taking.

One important reason to account for these severance damages is that they can be costly. Consider, for example, the following hypothetical scenario:

A Florida property owner owns 1.2 acres of vacant property in a large metropolitan area.
The property is valuable because it is zoned for heavy commercial use and can be commercially developed.
In the city where the property is located, a local regulation requires that property be of at least 1.0 acres in size to be commercially developed.
A condemning authority seeks to acquire .4 acres of property from the affected property owner.
After the eminent domain taking, only .8 acres of land will be owned by the property owner, and the city’s regulation will prevent the remainder property from being commercially developed.
This impact drastically reduces the value of the entire property. Even though the condemning authority is only taking 1/3 of the square footage of the property, the value of the entire property will likely be materially reduced.

The good news for Florida property owners faced with this or a similar situation is that Florida eminent domain law requires condemning authorities to pay for these damages to the remainder property. See Fla. Stat. § 73.071(3)(b) (2011) (eminent domain damages “shall” include “any damages to the remainder [property] caused by the taking”).

The bad news for Florida property owners is that Florida condemning authorities tend not to adequately compensate for (or, in some cases, even recognize) these damages in their initial monetary offers to property owners.

One advantage of hiring Fixel, Maguire & Willis is that its attorneys will enlist the assistance of experienced eminent domain professionals (appraisers, site analysts, and engineers) to search for and calculate severance damages for each and every client. If severance damages exist, Fixel, Maguire & Willis attorneys will negotiate and, if necessary, litigate to ensure the affected client is fully compensated for these damages.

If you own Florida property that may be subject to an eminent domain taking and you have a question regarding severance damages or any other Florida eminent domain issue, please contact Fixel, Maguire & Willis’s firm administrator by email at sharris@fla-eminentdomain.com or by telephone toll-free at (800) 848-7535.

Florida Eminent Domain Law Prohibits Condemning Authorities from Devaluing Property Through Pre-Condemnation Activities

Posted on December 21, 2011 by jfixel

When exercising the power of eminent domain, condemning authorities almost always attempt to save money (sometimes acting properly, sometimes not). One improper way condemning authorities attempt to pinch pennies – at property owners’ expense – is through pre-condemnation activities that devalue or depress the value of property soon-to-be acquired through the eminent domain/condemnation process.

Condemning authorities’ pre-condemnation activities to devalue property targeted for eminent domain/condemnation include:

altering the zoning status of or “down-zoning” targeted property (e.g., changing the zoning of targeted property from heavy commercial to agricultural) or lobbying local public officials to stop imminent zoning changes which, in the ordinary course of business, would be granted;
refusing to allow targeted property to obtain a status change (e.g., denying an application for annexation into a city or town); and
hindering access points for targeted property.

Condemning authorities often engage in this pre-condemnation behavior because they seem to believe that property owners should only be compensated for the value of property as the property exists on the date of taking (the date that the Court formally transfers property interests from the property owner to the condemning authority). In other words, it seems that some condemning authorities believe that if the value of targeted property is depressed on the date of taking because of a condemning authority’s actions, it is the property owner’s loss and the condemning authority’s gain.

Florida law, however, does not support this position. Florida law provides strong protection for property owners whose property is devalued by a condemning authority’s pre-condemnation actions. Indeed, in Florida, if a condemning authority engages in pre-condemnation activities that depress the value of property targeted for eminent domain/condemnation, those activities must be disregarded and the property must be treated as if the condemning authority never acted.

As an example, in the seminal case, Gefen v. Department of Transportation, 636 So.2d 1345, 1346 (Fla. 1994), the Florida Department of Transportation (“FDOT”) closed interstate access ramps for property it targeted for eminent domain/condemnation. Instead of allowing the affected property to be devalued because FDOT (the condemning authority in the Gefen case) cut off interstate access to the property prior to the date of taking, the Florida Supreme Court flatly ruled that eminent domain “compensation will have to be based on the value that the property would have had if the access ramps had not been closed.” Id.

In other words, for eminent domain purposes, the targeted property in Gefen had to be treated as if FDOT (the condemning authority in the Gefen case) had not tried to devalue the property at issue in anticipation of an eminent domain/condemnation action. The actions of FDOT, for eminent domain compensation purposes, had to be completely ignored.

This strong rule set forth in Gefen is still good law in Florida, and it is this rule that causes Fixel, Maguire & Willis attorneys and associated team of eminent domain professionals to closely monitor condemning authorities’ pre-condemnation activities for Fixel, Maguire & Willis clients. If a condemning authority oversteps Florida law and attempts to improperly depress the value of a client’s property, Fixel, Maguire & Willis attorneys will use its resources to ensure that the condemning authorities’ improper efforts fail.

If you have any questions or concerns about a condemning authority’s pre-condemnation actions – or any issue related to eminent domain/condemnation in Florida – please call contact Fixel, Maguire & Willis’s firm administrator by email at sharris@fla-eminentdomain.com or by telephone, toll free at (800) 848-7535.

The Condemning Authority is Responsible for Attorneys’ and Expert Fees in Florida Eminent Domain Matters

Posted on December 21, 2011 by jfixel

In Florida eminent domain matters, it is constitutionally mandated that property owners’ attorneys and experts are paid reasonable fees by the condemning authority, the governmental entity or utility company taking the property at issue. See JEA v. Williams, 978 So.2d 842, 845 (Fla. 1st DCA 2008) (“[a] landowner’s constitutional right to full compensation for property taken by the government includes the right to a reasonable fee for the landowner’s counsel.”)

This rule does not mean that the property owners’ attorneys and experts work for the condemning authority. They do not. Property owners’ attorneys (like Fixel, Maguire & Willis) and their experts work solely for the affected property owner. Florida’s rule simply means that the property owner’s attorneys and experts ― after having worked solely for the property owner ― will have their fees paid by the condemning authority at the end of the matter.

This is an important protection for Florida property owners, and it is a protection that is not shared by half of the other states. In neighboring Georgia, for example, property owners (not the condemning authority) must bear the burden of paying their attorneys and experts in eminent domain matters.

In Georgia, it can be impossible for many property owners to challenge, through the legal system, a condemning authority’s assessment of the value of the property taken and the damages caused to remaining property by the eminent domain taking. Indeed, in Georgia, attorneys’ and expert fees and costs can overwhelm the compensation due to the property owner, and if the property owner chooses to utilize the legal system, the property owner can be left with nothing.

This is not true in Florida. When disputing eminent domain compensation in Florida, affected property owners do not have to pay, out of their own pocket, attorneys and experts to handle real estate compensation and damage impact issues. This constitutional protection enables Florida property owners to obtain representation in eminent domain cases and to challenge in an effective manner condemning authorities’ often meager assessments of the compensation due for an eminent domain taking.

In fact, Florida law even allows property owners to enlist the assistance of attorneys and experts during the pre-taking stage of eminent domain negotiations at no cost to the property owner. This enhanced protection allows Florida’s property owners to engage in fully informed pre-taking, eminent domain negotiations without having to pay out-of-pocket expenses.

If you own property in Florida that may be subject to an eminent domain taking (whether in Pensacola, Tallahassee, Jacksonville, Tampa, Orlando or anywhere in the state of Florida) and you have questions about how attorneys’ and expert fees are paid under Florida’s eminent domain laws, please contact Fixel, Maguire & Willis’s firm manager, Susie Harris, by email at sharris@fla-eminentdomain.com or by telephone, toll free at (800) 848-7535.