ACQUISITION PRE-CONDEMNATION CONSIDERATIONS FOR CONDEMNORS

ACQUISITION PRE-CONDEMNATION CONSIDERATIONS FOR CONDEMNORS -- Matthew G. ( Guy ) Minter, County Attorney, Marion County, Florida In many situations, the cost of property acquisition for road right-of-way and other projects may represent a very significant portion of the costs of the entire project. While the vision of a successful eminent domain lawyer may evoke scenes of powerful cross-examinations of expert witnesses, this discussion encourages practitioners to embrace the reality that you may help your client achieve the most cost-effective project by careful advance planning and analysis that may enable your agency to avoid initiating condemnation altogether. Or, in the event that condemnation is necessary, effective pre-condemnation activities may help you reduce liability for the property owner s attorney fees and expert witness costs. This discussion will include coverage of maps of reservation, statutory conditions precedent to the exercise of eminent domain, statutory prohibitions on the exercise of the power of eminent domain, pre-condemnation blight, advance acquisition of real property, the effect of planning and zoning actions on eminent domain proceedings, and whether a quick-take or slow-take procedure should be utilized. I. GENERAL THOUGHTS ABOUT ADVICE AT SEMINARS. As with all presentations, there are no absolute truths, no sorcerer s stones. Nobody ever defended anything successfully, there is only attack and attack and attack some more. George S. Patton. This is an inspiring quote for litigators. But General Patton, an avid student of military history, seems to have overlooked significant evidence to the contrary, of which he was well aware. Before the final day of the battle at Gettysburg on July 3, 1863, and Maj. Gen. George E. Pickett s disastrous charge into the Northern defenses, Robert E. Lee said, The enemy is there, and I am going to strike him. [This, against the advice of General Longstreet.] [Pickett s Charge, 20] Today, we all know the result of that attack. Patton s great-uncle, Col. Waller T. Patton, participated in Pickett s Charge, 1

and died from mortal wounds sustained leading Confederate forces against the Union position on Cemetery Ridge.] However, in contrast, Patton s grandfather, Col. George S. Patton, Sr., died at the Third Battle of Winchester on September 19, 1864, defending a position against General Sheridan s attacking forces. The Point is that there is no one strategy that is successful against all foes, in all situations, at all times. For the litigator, it is a mistake to think that what was a winning strategy or trial theme in your last trial will produce the same results in your next trial. II. THE ARGUMENT FOR ADVANCE PLANNING FOR EARLY INVOLVEMENT IN THE DEVELOPMENT OF A PROJECT. To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy s resistance without fighting. Therefore, the skillful leader subdues the enemy s troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdoms without lengthy operations in the field. Sun Tzu, Art of War Eminent domain cases present a rare opportunity for the condemning authority s attorney to be the architect in both avoiding the need for a trial, and in molding the issues to be determined at trial in making the critical choice of the location of the field of battle. New Orleans Attorney Dominic Gianna has written a popular book on opening statements, Winning in the Beginning, by Winning the Beginning. Thomson Reuters 2015-2016 Ed. In this portion of the presentation, I m not going to be talking about Opening Statements, I just want to borrow the title as a theme for my message. To put it another way, if you don t Win in the Beginning, you may well Lose in the End! It is a painful truism that we often learn more from our mistakes and failures than from our successes. I want to share with you things I ve learned from painful experience, so that if you really listen, you may skip some of this pain... you ll move on to have different pain, but at least you ll keep the evolution moving in a positive direction. For those of you eminent domain lawyers who are already aware of events that can affect your case long before you file a Petition modeled after The Florida Bar blue book on Eminent Domain, you can take a coffee break. This is for those trial attorneys who don t want to have the experience of being in a trial, and firmly 2

believing in the quality of your experts and the justness of your cause, and learning too late that your case was lost before you received it from your client. III. THE IMPORTANCE OF CONTEXT. Before jumping to specifics, it is important to consider the nature of the type of case you are prosecuting for the county. Referring to the above-referenced words of Sun Tzu, is there really an enemy in your case? Exactly who is the defendant / respondent in your case. Is he or she not a citizen and property owner of your community, one for whom your agency is supposed to be a service provider, rather than an attacker? Who is the initiator and aggressor in your litigation? Have you personally ever been on the receiving end of an eminent domain petition? Do you know anyone who has? Do you (or members of the acquisition team) quickly assume that the property owner is motivated by outrageous demands or bad faith? Have you ever put yourself in the shoes of a property owner who receives your good faith offer in a down economy, and your offer is not even sufficient to pay off the mortgage for the property? If it comes to pass that there is an enemy on the other side of the case, more likely than not, it will be the opposing counsel or opposing expert witnesses, rather than the property owner. Never forget: IV. The power of eminent domain is an attribute of the sovereign. It is not a vesture of the state conferred by constitution or statute. It is circumscribed by the constitution and statute in order that cherished rights of the individual may be safeguarded. It is one of the most harsh proceedings known to the law, consequently when the sovereign delegates the power to a political unit or agency a strict construction will be given against the agency asserting the power. Peavy-Wilson Lumber Co. v. Brevard County, 159 Fla. 311, 314, 31 So.2d 483, 485 (1947) (emphasis added); Rukab v. City of Jacksonville Beach, 811 So.2d 727, 730 (Fla. 1 st DCA 2002). A FEW COMMENTS ON HISTORICAL PERSPECTIVE. Come gather round people Wherever you roam And admit that the waters Around you have grown And accept it that soon You ll be drenched to the bone If your time to you is worth savin 3

Then you better start swimmin or your sink like a stone For the times they are a-changin The Times They Are A-Changin, first stanza, Bob Dylan, 1964 a. Eminent Domain During the Reagan Presidency b. FDOT v. Amarillo Partners, Inc., 849 So.2d 279 (Fla. 2003) c. Kelo v. City of New London, 545 U.S. 469 (2005) d. Current public (and, more importantly, juror) attitudes about the government, in general, and eminent domain in particular. e. See Exhibit A -- Jury awards businessman 66 times the DOT s initial offer. V. HOW DO YOU SEE YOURSELF? WHAT IS YOUR ROLE? How do you think you fit into the project or acquisition team? Do you have a clear sense of the priorities of the project team in terms of the ultimate development of the project, the timing of the project, and controlling the costs of the project? How do you define success for your role? VI. SPECIFIC CONSIDERATIONS FOR PRE-CONDEMNATION PLANNING AND ACTIVITIES. First, what is the beginning for you? At what point do you get involved in the project that requires land acquisition? a. Are there any alternatives to condemnation? 1. Public-private economic development agreements where right of way is donated in exchange for public construction of roadways and capital facilities. 2. Voluntary acquisitions not under threat of condemnation. 125.355, Fla. Stat. 3. Special requirements related to utility systems. 125.3401, Fla. Stat. b. Project priorities, budget, and important deadlines. Is the project in the current TIP? c. Is there any federal funding involved? d. Does the project involve a joint agreement between the County and FDOT, or other entity? e. Be aware of statutory prohibitions and limitations on a county s use of eminent domain. 127.01(1)(b) and (2), Fla. Stat.; 73.014, Fla. Stat.; 73.013, Fla. Stat. Except for 127.01(2), Fla. Stat., a county may 4

condemn private property located in another county. Example of Charlotte County s condemnation of the General Development Utilities (GDU) water treatment plant located in DeSoto County. f. Consideration of 337.27(1), and 337.273, Fla. Stat., as authorized by 127.01(1)(b), Fla. Stat. g. Selection of the parcels or property interests to be acquired the five factors of 1. Availability of alternate alignments, or parcels; 2. Costs; 3. Environmental factors; 4. Long-range area planning; and 5. Safety. See, e.g., Hillsborough County v. Sapp, 280 So.2d 443 (Fla. 1973); Chipola Nurseries, Inc. v. Div. of Admin, DOT, 294, So.2d 357, 361 (Fla. 1 st DCA 1974); Hillsborough County v. Lutz Realty & Inv. Co., 553 So.2d, 1320, 1324 (Fla. 2d DCA 1989); Pasco County v. Franzel, 569 So.2d 877, 879 (Fla. 2d DCA 1990); City of Cocoa v. Holland Properties, 625 So.2d 17, 19 (Fla. 5 th DCA 1993). For significant roadway projects, the Florida DOT and local governments generally follow a five-phase transportation development process, including: 1. Long Range Planning; 2. Project Development and Environmental Study (PD&E) typically, the PD&E study prepared by an engineering firm will evaluate the five factors set out above, and recommend project alternatives to the local government. Nevertheless, the eminent domain attorney must ensure that the selection of parcels or alignments is made by the county commission, and not by the engineering firm. The choice of selection should involve some deliberation on the record, and not just be a rubber stamp of the engineer s recommendation. As the late Judge Spector noted in Chipola Nurseries, Inc., at 361, an engineer s transit has no social conscience. h. What process is used for selection of the appraiser? Does the attorney have authority to hire expert witnesses such as appraisers, engineers and land planners, without going through the county s standard procurement process? If the selection is handled by the procurement department, is the selection based on the lowest responsive and responsible bidder? If so, consider the consequences of this approach for your litigation. i. Evaluate project impacts to each acquisition parcel, with either the design engineer, or with your in-house county engineer staff, including such issues as: 1. The takes leaves the site non-conforming under your LDC in any respect; 2. The take eliminates or impairs access to the site; 3. There are change of grade issues that adversely affect the remainder; 4. 5

The take makes it impossible for trucks of certain sizes to enter the site, or have proper internal circulation; 5. The take eliminates or reduces parking spaces; signage, or stormwater facilities; 6. The take creates significant proximity damages, such as reducing a residential driveway from 22 to 12, or creates significant noise issues. Determine before the parcels are referred to the appraiser whether accommodations such as median cuts in the new roadway can be made. To the extent you can have these matters addressed before your appraiser begins his or her appraisal, they can significantly reduce project impacts, or at least enable your appraiser to properly consider and value the impacts thus giving the opposing appraiser less of a basis to find extra severance damages in order to exceed your appraiser s value conclusion. Cures that are identified and committed to up front by the condemning authority can eliminate a later claim for non-monetary benefits by the property owner s attorney, if the items are negotiated at a later date. j. Carefully review each appraisal to determine whether the report follows the correct law, and whether it is supported by valid market data. Interview the appraiser to verify that he or she has properly confirmed all comparable sales, and that none of them are distress sales or other lessthan-arms-length transactions. Give special attention to the appraiser s determination of the larger tract, and what elements, if any, were determined to be causes of severance damages. k. Notwithstanding 73.071(2), Fla. Stat., which specifies the date of valuation, determine whether the appraiser has analyzed whether there has been any unreasonable project delay which might require consideration of an earlier date of valuation. l. Has the appraiser considered any possible issues of condemnation blight. m. Has the appraiser properly considered the scope of the project, under 73.071(5), Fla. Stat. n. Does the appraisal report comply with the most recent edition of the Uniform Standards of Professional Appraisal Practice (USPAP)? o. In some cases, it may be possible to utilize the availability of alternate routes or parcels as a basis for creating some market dynamics in the context of determining whether a voluntary acquisition (not under threat of condemnation) may be accomplished at a good price from one or the other alternative. In order to take this approach, care must be taken not 6

to use a boilerplate eminent domain pre-suit letter to convey offers to property owners otherwise, you may be exposed to higher attorney fees. p. If you decide to proceed with making a threat-of-condemnation pre-suit written offer as required by 73.015, Fla. Stat., keep in mind that the monetary offer in this letter will form the basis for computation of the property owner s attorney s fees, based on the betterment obtained for the client. Therefore, consider whether there would be merit to include a premium over and above the appraised value for the parcel, in the initial offer. Also, consider whether your offer should include an offer of any cure of mitigation of project impacts, beyond what is accounted for in the appraised value. Be aware that the written offer must be unconditional it must not be subject to county commission approval. That is, if the property owner accepts the offer, you have a binding contract. q. Give special attention to the requirements for business owners under 73.071, Fla. Stat. If the acquisition will result in loss of parking spaces, consider obtaining photographic evidence and documentation of the percentage of parking spaces actually used on an average day, well before the petition is filed. r. Decide whether to use a slow-take proceeding under Ch. 73, Fla. Stat., or a quick-take proceeding under Ch. 74, Fla. Stat. Discuss, Jacksonville Port Authority v. Keystone Coal Company, Case No. 2005- CA-007802 (Fla. 4 th Judicial Circuit Court 2008), which resulted in a jury verdict of $67,410,000 Florida s largest state court eminent domain award. Also, Charlotte County s acquisition of the GDU water plant in DeSoto County see General Dev. Utilities v. Charlotte County, 620 So.2d 1035 (Fla. 2d DCA 1993). s. Discussion of planning and zoning decisions and eminent domain. Volusia County s I-4 / SR. 472 interchange project at the City of Deltona. 7