FLORIDA EMINENT DOMAIN LAW
By Jennifer B. Springfield and Alexander Boswell-Ebersole
The government exercises its eminent domain authority by civil action, and the procedure for the exercise of this authority is generally called either a taking or a condemnation action. In addition to the substantive law of eminent domain in Florida, Chapters 73 and 74, Florida Statutes, contain several requirements concerning the procedural aspects of condemnation actions. Although the procedures governing all other civil actions still apply to condemnation actions where Chapters 73 or 74 do not prescribe a particular procedure, many of the Chapter 73 and 74 procedural requirements are significant and designed to protect property owners. Consistent with the others in this series, this article only discusses the intentional voluntary use of eminent domain, and not regulatory takings or ”inverse condemnation.”
A proceeding initiated under Chapter 73 is often called a “slow take” action and a proceeding under Chapter 74 is often called a “quick take” action. In Chapter 73 proceedings, title of the property does not pass to the condemning authority until after a final judgment assessing the compensation due. Most eminent domain actions are filed as “quick take” actions, which are supplemental to Chapter 73 and allow the condemning authority to deposit security funds into the court registry in order to take possession and title of the property prior to final judgment. However, unless specifically afforded the ability to do so in one of the several other statutes providing eminent domain authority to particular entities, only those entities listed in 74.011, Florida Statutes, may use the quick take action. A disadvantage of this quick take procedure is that once the petition is filed, the funds are deposited by the condemning authority into the court registry and are available to the landowner, the court issues an order of taking and the condemnor may not abandon the project unless the landowner/defendant agrees. On the other hand, compensation is not due until after the final judgment in a slow take proceeding, and thus the condemnor is free to abandon or change the project if it receives an unfavorable judgment.
Owners of property sought for condemnation generally hear from the condemning authority well before the actual initiation of a condemnation proceeding. In fact, before a condemning authority officially files a petition for condemnation, Chapter 73 requires that the condemning authority provide notice of a variety of statutorily required matters (e.g., that the property is necessary for a public project), and also requires the condemnor to both engage in good faith negotiations with the landowner and provide a written offer. Moreover, if the landowner requests, the condemning authority must furnish a copy of the appraisal upon which the offer is based. After receipt of the notice, the landowner has 30 days to respond before the condemning authority may initiate a condemnation proceeding. Where the landowner is a business owner, however, the condemning authority need only make a good faith effort to notify, and is not required to wait 30 days or to engage in good faith negotiations.
In filing a petition for a condemnation proceeding, the condemnor must file in the circuit court of the county where the property is located. The contents of the petition must include all the information required in 73.021, Florida Statutes, as well as a proper resolution issued by the condemning authority that authorizes the condemnation. Once the petition is filed, there are essentially two phases of a condemnation proceeding. First, the court must assess the validity of the taking (i.e. whether the condemnor has the right and whether the nature and scope of the taking is appropriate). The court makes this determination in a hearing in limine or, in the case of a quick take action, at the request of a defendant pursuant to 74.051(1), Florida Statutes. As for the second part of a condemnation proceeding, a jury determines the amount of compensation due. Thus, the court plays a rather limited role in condemnation proceedings.