What Procedures Must the Government Follow Before Filing an Eminent Domain Lawsuit Against You?

By: Brandon C. Meadows, Esq. and Charles B. Jimerson, Esq.

Before filing an eminent domain lawsuit against a property owner, Florida law requires the government or the condemning authority to conduct very specific procedures. These special procedures and considerations are designed to ensure that the taking of any property is valid and that the property owners are given a fair opportunity to resolve the issues with the government before the suit is filed. It is critical for property owners to understand their pre-suit rights throughout this process to obtain full and fair compensation for any taking of their property.

Pre-suit Project Planning and Development

The government may not indiscriminately take private property under eminent domain proceedings without first establishing and demonstrating that the taking was made for a public purpose. To ensure the taking is made for a public purpose, the government is required to follow specific statutory requirements for planning public projects. For instance, the Florida Department of Transportation (“FDOT”) must develop plans, and consult with other planning organizations, to establish the state’s long-term transportation goals and objectives. Many of these plans are an excellent source of information supporting the need for public transportation projects. Forcing the government to articulate its long-term policies and needs for public works ensures that the taking is not arbitrary.

Financing for the project, and identifying the source of funds to be used for the project is critical, as many public projects may be implemented with federal funds, thereby triggering compliance with federal law and procedure. The use of federal funds often requires additional procedural steps that—if not properly followed—can give rise to defenses to a taking.

FDOT is required to develop a financing plan to account for the expenses of a project over the course of a five-year work program. Fla. Stat. § 339.135(2)(a). Each of the seven districts throughout the state develops its five-year work program, which serves as the basis for budget requests from the legislature to meet the district’s transportation needs. The five-year work programs contain a detailed list of projects with estimated costs, and timelines for the expenditures in accordance with each phase of the project.

Project Development and Environment

After the planning and financing phase of the project, the government must assess social and environmental effects of the project and consider engineering, location and designs that will minimize adverse impacts. This phase is known as the Project Development and Environment (“PD&E”) process. The failure of the government to comply with environmental regulations may be a defense to a taking. Hillsborough County v. Sapp, 280 So. 2d 443 (Fla. 1973).

In addition to environmental assessments, the government should also consider public comments, safety, and alternative designs and routes to ensure that all relevant factors were considered to demonstrate the necessity of the taking. Rawls v. Leon County, 974 So. 2d 543 (Fla. 1st DCA 2008).

Project Design

After the PD&E process, the government engages in the Project Design phase which considers the implementation and construction of the project to prepare right-of-way (“R/W”) maps and identify the property subject to taking and the extent of the taking needed to implement the design. Once 60% of the design plans are completed, there will be little modification to the location of the project and implementation of the design, as R/W requirements are generally established. In other words, at 60% completion of design, the affected property owners can determine the scope of the taking and they can expect initiation of R/W acquisition. Before the government can acquire or take the property by judicial process, the government must first meet several pre-suit requirements.

Pre-suit Negotiation

Now that the government has established which property will be necessary for the project, before filing a petition for an eminent domain proceeding for a taking, the government must first attempt to negotiate in good faith with the owner of the property. Specifically:

[t]he condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired, must provide the fee owner with a written offer and, if requested, a copy of the appraisal upon which the offer is based, and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel.

See Fla. Stat. § 73.015(1) (emphasis added).

No later than the time the government makes its written offer, the government must provide notice of the following:

  1. That all or a portion of the property is necessary for the project;
  2. The nature of the project that makes the taking of the parcel necessary;
  3. The owner’s rights to receive a copy of the appraisal and other project documents within 15 days of written request by the owner; and
  4. The fee owner’s statutory rights.

See Fla. Stat. § 73.015(1)(a)(1)–(4).

The required notice and offer must be sent via certified mail, return receipt requested, to the owner’s last known address listed on the count ad valorem tax rolls. Fla. Stat. § 73.015(1)(c). The written offer must propose the compensation for the value of the property taken, and—in cases of partial taking—any damages to the remainder caused by the taking. Fla. Stat 73.015(1)(b). After delivery of the notice and written offer of compensation, the government must give the owner a period of 30 days to respond, before proceeding with a lawsuit. Fla. Stat. § 73.015(1)(b).

Special Rules for Claims of Business Damages

In cases where the taking by the government will interfere with a business that is being operated on the property, such business owners, including lessees, will be entitled to business damages. Note that the government must make a good faith effort to provide business owners and lessees with a substantially similar notice as is provided to owners of the property. Fla. Stat. § 73.015(2). However, if the business owner qualifies for business damages under Fla. Stat. 73.071(3)(b), within 180 days of receiving written notice from the government, that business owner must submit its own good-faith written offer to settle any claims for business damages. Fla. Stat. 73.015(2)(c).

The 180 days for the business owner to submit its calculation of damages does not affect the ability of the government to file its eminent domain lawsuit, and the 180-day period may expire sometime after the initial pleading phase of the proceedings. Nevertheless, the government must accept or reject to the claims for business damages within 120 days from the date of the offer from the business owner. Id. If the government fails to respond to the offer for business damages, the government will be deemed to have submitted a counteroffer of zero, which has a substantial effect on the attorneys’ fees awarded. Fla. Stat. 73.015(2)(d).

Pre-suit Mediation

While the government is not required to conduct mediation to meet its pre-suit “good faith” negotiation obligation, the parties may submit disputes related to compensation and business damages to non-binding mediation. Fla. Stat. 73.015(3). All oral and written statements made in mediation will be confidential and will not be admissible in an eminent domain proceeding. If the property owners and the government come to an agreement, it must be in writing and incorporate the right of way plans, maps and other project documents upon which the settlement is based.

Conclusion

The process of the government taking property from private individuals through eminent domain is heavily regulated to ensure that those affected receive notice and a fair opportunity to object to the process or to otherwise receive full and fair compensation for the taking. The entire statutory scheme is designed to ensure that the taking is properly planned, financed and documented at each phase, so that property owners will have such a fair opportunity to be heard and receive just compensation.

As a property owner or business owner, it is critical to understand the procedural requirements that the government must meet before filing suit and proceeding with the eminent domain lawsuit. By having an appreciation for each phase of the process and the deadlines imposed for responding, those affected by eminent domain can best position themselves to obtain competent counsel and receive just compensation for the taking.

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