III. WHAT WOULD BE THE MEASURE OF COMPENSATION FOR THE TAKING OF
PROPERTY RIGHTS OF LANDOWNERS IN GOLDEN GATE ESTATES, ASSUMING
SUCH A TAKING IS FOUND?
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
(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
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
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.