Title: Measure of Compensation If A "Taking" Is Found
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003024/00001
 Material Information
Title: Measure of Compensation If A "Taking" Is Found
Physical Description: Book
Language: English
Publisher: Frank E. Maloney, Attorney At Law
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Measure of Compensation If A "Taking" Is Found
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003024
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


Article X, Section 6(a) of the 1968 Florida Constitution provides

that "no private property shall be taken except for a public purpose and

with full compensation therefore paid to each owner." Property owners

may seek compensation for a taking through an action for inverse condem-

nation. See, Florida Power and Light Co. v. Rader, 306 So. 2d 565 (Fla.

1st D.C.A. 1975); Aubrey v. City of Panama Beach, 283 So. 2d 114 (Fla.

1st D.C.A. 1973).

If a court finds that a taking has occurred, it may order the

governmental authority to commence condemnation proceedings. The legal

principles of eminent domain are then utilized to determine the compensa-

tion that is due the landowner, just as if the governmental authority had

condemned the property in the first instance. See e.g., Adams v. County of

Dade, 335 So. 2d 594 (Fla. 3d D.C.A. 1976). In fact, Florida's eminent

domain statute has been consulted to guide the court in establishing the

burden of proof to establish that a taking had occurred. Kirkpatrick v.

City of Jacksonville, 321 So. 2d 487 (Fla. 1st D.C.A. 1975). Therefore,

Florida's law of eminent domain should be examined to determine the

measure of damages that might arise from Collier County's implementation

of the Interim Action Program. Section 73.071, Florida Statutes requires

the issue of compensation to be submitted to a jury of twelve persons for

determination. The issue is tried in the same manner as other issues of

fact in the circuit courts. It is solely the responsibility of the jury

to determine the amount of compensation.

The measure of damages is set forth in section 73.071(3). Subsections

(a) and (b) are applicable to the particular factual situation in Collier



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(a) The value of the property sought to be appropriated;

(b) Where less than the entire property is sought to be appro-
priated, any damages to the remainder caused by the taking,
including when the action is ... for the condemnation of a
right-of-way, and the effect of the taking of the property
involved may damage or destroy an established business of
more than 5 years standing, owned by the party whose lands
are being taken, located upon adjoining lands owned or held
by such party, the probable damages to such business which
the denial of the use of the property so taken may reason-
ably cause ....

Subsection (4) provides that in right-of-way cases, enhancement of remaining

property belonging to the aggrieved landowner must be set off against the

compensation due him. Also relevant to the question of compensation is

section 73.092 (added Fla. Laws 1976, c. 76-158 1), which provides for

reasonable attorneys' fees to be assessed as an element of full compensation.

See, Dade County v. Oolite Rock Co., 348 So. 2d 902 (Fla. 3d D.C.A. 1977).

The general rule as to the measure of compensation for condemned pro-

perty is that the compensation should be equal to the fair market value

of the property at the time of the appropriation. The fair market value

is the amount that a willing purchaser, under no compulsion to buy, would

pay for the property. Staninger v. Jacksonville Expressway Authority, 182

So. 2d 483, 486 (Fla. 1st D.C.A. 1966). Three Florida cases demonstrate

some of the factors involved in this general rule.

In Yoder v. Sarasota County, 81 So. 2d 219 (Fla. 1955), an eminent

domain proceeding was brought by Sarasota County to condemn defendants'

lands for public beach and recreation purposes. At trial, the defendants

proffered evidence that the value of the parcel to be condemned would have

been substantially higher if the property were developed and used for the

highest and most profitable use to which it was adaptable. The trial court

refused the evidence and the defendants appealed the final award, asserting


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that the court had erred in refusing to admit the evidence. The Supreme

Court of Florida upheld the lower court ruling, stating that although it

would be appropriate to show the uses to which the property was or might

reasonably be put, the value must be established as of the time the land

is appropriated. The alternative would be to permit "a floodgate of

speculation and conjecture that would convert an eminent domain proceed-

ing into a guessing contest." Id. at 221.

The case of Coral-Glade Co. v. Board of Public Instruction of Dade

County, 122 So. 2d 587 (Fla. 3d D.C.A. 1960) also involved claims for

increased compensation based on development potential. The Board of

Public Instruction instituted an eminent domain proceeding seeking to

condemn 22.51 acres of undeveloped land which the owners had intended to

include as part of a 107.7 acre subdivision. At the time of the taking,

a tentative plat of the subdivision had been prepared and a paving and

drainage plan had been approved by the county engineer. The defendants

had also entered into a contract for utilities for the proposed subdivision.

The trial resulted in a judgment for the defendants of $139,562 as compen-

sation for the appropriated property, and the defendants appealed. The

defendants contended that the trial judge erred in excluding evidence that

FHA approval had been secured and had resulted in an increase in the land's

value. It was further claimed that a subdivision consisting of the remain-

ing acreage would be subject to substantially increased per-acre fixed

development charges and a substantial loss would be suffered by forfeiture

under the contractual agreements with a utility company.

The appellate court held that the trial judge correctly excluded the

evidence on the basis that the defendant's claims were dependent upon

future development of the subdivision and thus were too speculative to be


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considered in assessing the amount of compensation to be paid. Id. at 588,

citing Yoder v. Sarasota County, supra. The Court noted that an additional

increment of damages based on the landowner's mortgage loan financing

might be allowable in the proper case, but found, without further dis-

cussion, that the facts in Coral-Glade did not warrant such an allowance.

With respect to the Golden Gate Estates problem, there is very little

development of the area that would be affected by the Interim Action Pro-

gram proposals. In addition, any permit application for the development

of a lot in the affected area would probably already be subject to a

number of regulatory obstacles such as the discouragement of fill place-

ment in floodprone areas and the prohibition of septic tanks in areas that

are poorly drained. Thus, there could be a significant level of specu-

lation included in the claims of landowners seeking inverse condemnation

for implementation of the Interim Action Program, the sort of speculation

that the Florida courts will not permit to be included in the determination

of just compensation.

A related proposition was discussed in Staninger v. Jacksonville

Expressway, 182 So. 2d 483 (Fla. 1st D.C.A. 1966). In Staninger, the

condemning authority sought to appropriate land which was subject to a

restrictive covenant limiting use of the land to single family resi-

dential purposes. Evidence which tended to show the probability and cost

of removing the restrictive covenant and resulting value of the property

was ruled inadmissable and the landowner appealed. Citing a number of

state supreme courts, the Florida appellate court noted the majority

rule is that consideration should be given restrictive covenants without

regard to the probability of their removal. Id. at 487. The court

reasoned that such evidence was "so speculative as to be inherently


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inadmissable." Id. at 488-89, citing Yoder v. Sarasota County, supra.

The effect of Yoder and later cases that reaffirmed its ruling is

that evidence which is offered to show the value of land but which is

dependent on facts not yet in existence at the time of the taking will

likely be held inadmissible as too speculative. Development potential

must be reflected in the present value of the property sought to be

appropriated to be properly considered in determining the amount of
compensation to be paid.

If a court finds that a taking has occurred in Golden Gate Estates

it will most likely find that only a partial interest has been taken.

For example, taking of the rights of ingress and egress might be found

as a result of the abandonment of roads and the taking of a flowage

easement could result from raising water levels. The Florida Supreme

Court has held that the measure of compensation for destroying a right

of access is the difference between the value of the property with the

right attached and its value with the right destroyed. Anhoco Corp. v.

Dade County, 144 So. 2d 793, 979 (Fla. 1962). However, damages may be

reduced by the existence of other possible means of access. Pinellas

County v. Austin, 323 So. 2d 6, 9 (Fla. 2d D.C.A. 1975). If raising

water levels results in the taking of a partial interest in land, i.e.,

a flowage easement, then the value of that interest must be paid as

compensation. United States v. Cress, 243 U.S. 316 (1916). Its value

would also be determined by a comparison of the affected land's market

value before and after the flooding. Cf. Adams v. County of Dade, 335

So. 2d 594, 596 (Fla. 3d D.C.A. 1976) (diminution of market value is the

measure of value of air navigation easement).

Thus, if the County "takes" private property in Golden Gate Estates,


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the amount of necessary compensation will be measured by the actual value

of the property at the time it is taken. Development potential may be

considered only as it affects the actual value of the property at the

time of the taking. If less than the fee is taken, such as would be the

case if access rights are destroyed or a flowage easement is appropriated,

the measure of damages would be the diminution of market value caused by

the taking of the partial interest. Enhancement in the value of remain-

ing property, however, may be set off against compensation. Finally,

reasonable attorney fees incurred by the landowner in the compensation

proceeding must be repaid.



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