7/12/2005

Business damage amendment proposed to FL eminent domain law

Submitted by Dino Paspalakis

Florida law includes statute 163.375 describing conditions for the taking of property by eminent domain for "community redevelopment and related activity," and the payment of "just compensation" to affected parties. I proposed an amendment to the law, which was drafted by my attorney, Jay Small (407)843-4321. Despite an active lobbying effort, the atmosphere at the time was not favorable and the amendment was not enacted. Now, in the wake of Kelo v New London, public awareness of eminent domain abuse suffered by individuals and businesses is creating pressure from voters for legislators to take action and the time may be right for this or other proposed changes.

Statute 163.375 and the proposed amendment (section 2 C — in boldface italics) are as follows:

163.375 Eminent domain.

(1) Any county or municipality, or any community redevelopment agency pursuant to specific approval of the governing body of the county or municipality which established the agency, as provided by any county or municipal ordinance has the right to acquire by condemnation any interest in real property, including a fee simple title thereto, which it deems necessary for, or in connection with, community redevelopment and related activities under this part. Any county or municipality, or any community redevelopment agency pursuant to specific approval by the governing body of the county or municipality which established the agency, as provided by any county or municipal ordinance may exercise the power of eminent domain in the manner provided in chapters 73 and 74 and acts amendatory thereof or supplementary thereto, or it may exercise the power of eminent domain in the manner now or which may be hereafter provided by any other statutory provision for the exercise of the power of eminent domain. Property in unincorporated enclaves surrounded by the boundaries of a community redevelopment area may be acquired when it is determined necessary by the agency to accomplish the community redevelopment plan. Property already devoted to a public use may be acquired in like manner. However, no real property belonging to the United States, the state, or any political subdivision of the state may be acquired without its consent.

(2) In any proceeding to fix or assess compensation for damages for the taking of property, or any interest therein, through the exercise of the power of eminent domain or condemnation, evidence or testimony bearing upon the following matters shall be admissible and shall be considered in fixing such compensation or damages in addition to evidence or testimony otherwise admissible:

(a) Any use, condition, occupancy, or operation of such property, which is unlawful or violative of, or subject to elimination, abatement, prohibition, or correction under, any law, ordinance, or regulatory measure of the state, county, municipality, or other political subdivision, or any agency thereof, in which such property is located, as being unsafe, substandard, unsanitary, or otherwise contrary to the public health, safety, morals, or welfare.

(b) The effect on the value of such property of any such use, condition, occupancy, or operation or of the elimination, abatement, prohibition, or correction of any such use, condition, occupancy, or operation.

(c) In any proceeding to assess compensation for the taking of property, or any interest therein, through the exercise of the power of eminent domain, if the effect of the taking may damage or destroy an established business of more than four (4) years standing, the owner of business shall be entitled to the probable damages to such business which the denial of the use of the property so taken may reasonably cause when the business cannot be relocated to a comparable location in the same market trade area.

(3) The foregoing testimony and evidence shall be admissible notwithstanding that no action has been taken by any public body or public officer toward the abatement, prohibition, elimination, or correction of any such use, condition, occupancy, or operation. Testimony or evidence that any public body or public officer charged with the duty or authority so to do has rendered, made, or issued any judgment, decree, determination, or order for the abatement, prohibition, elimination, or correction of any such use, condition, occupancy, or operation shall be admissible and shall be prima facie evidence of the existence and character of such use, condition, or operation.


Dino Paspalakis: Midwayfuncenter@aol.com